Abortion Rights Under Attack in America
By Kara Dansky, President of the U.S. chapter of the Women’s Human Rights Campaign. This article was adapted from the speech Kara gave at #FiLiA2021 during the UNSynced Panel.
U.S. Abortion rights are under attack in the U.S. in multiple ways. I honestly did not think that we would be in this position in our lifetime, but here we are.
Article 3 of the Declaration on Women’s Sex-Based Rights states:
States should ensure that the full reproductive rights of women and girls, and unhindered access to comprehensive services, are upheld.
States should recognize that harmful practices such as forced pregnancies, and the commercial or altruistic exploitation of women’s reproductive capacities involved in ‘surrogate’ motherhood, are violations of the physical and reproductive integrity of girls and women, and are to be eliminated as forms of sex-based discrimination.
States should recognize that medical research which is aimed at enabling men to gestate and give birth to children is a violation of the physical and reproductive integrity of girls and women, and is to be eliminated as a form of sex-based discrimination.
The U.S. chapter of the global Women’s Human Rights Campaign stands firmly in favor of these legal protections for women and girls and against the threats to women’s right to abortion that we are seeing in the U.S. today.
Roe v. Wade
The case that would come to be known as Roe v. Wade began in Austin, Texas in the late 1960s, after a young law student named Sarah Weddington, pictured here, had an illegal abortion in Mexico in 1967.
Weddinton had started law school at the University of Texas in 1965, one of five women among 120 men in her class. She was twenty years old at the time. She would later date a man named Ron Weddington and, celibate until the two began discussing the possibility of marriage, began having sex with him and eventually became pregnant. Abortion was illegal in Texas at the time, and she was not prepared to have children, so they went to Mexico for an illegal abortion. She was one of the lucky ones in that her abortion was safe and healthy, and she survived.
This is all publicly documented in Weddington’s 1992 Book “A Question of Choice.”
Weddington filed Roe v. Wade in the U.S. District Court for the Northern District of Texas on March 3, 1970, when she was just 25 years old. She would go on to argue it before the Supreme Court in 1972 at the age of 27, and in 1973, the Supreme Court ruled that states could not constitutionally ban abortion outright. States could place limitations on its availability under certain circumstances, but the ruling was clear: for the most part, U.S. women have the right to make our own decisions about our reproductive lives.
Today, all of that is under threat.
In May 2021, the state of Texas enacted a law that provides individuals – literally any individual, anywhere – with the right to sue anyone who in any way helped a woman obtain an abortion after a fetal heartbeat was detected, which is typically at around six weeks of pregnancy. In doing so, the Texas legislature found, correctly, that the state had never repealed laws enacted before Roe v. Wade was decided, that made abortion a criminal offense. That law went into effect on September 1 of this year, after the Supreme Court controversially refused to intervene. This resulted in an effective stoppage of all abortions in the state of Texas as of that date.
Kara Dansky holds sign with RBG quote: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When government controls that decision for her, she is being treated less than a fully adult human responsible for her own choices.”
On October 2, women protested the Texas law in cities all across the country. This is an image of three women, all signatories to the Declaration on Women’s Sex-Based Rights, standing firm in Austin Texas – the city where the recent Texas abortion ban was enacted and the same city where Roe v. Wade was born.
On the same day, I joined a group of women in Washington D.C. This is me holding up a sign depicting a quote from the late Justice Ruth Bader Ginsberg speaking during her 1993 Supreme Court confirmation hearing.
The main law that we were concerned about on October 2 was the Texas abortion ban, which continues to bounce around in the federal judiciary. Last week, a federal court put a halt to the law’s enforcement. The state appealed that decision, and just this past Thursday, a Court of Appeals reversed the lower court’s decision, reinstating the law until oral arguments before the Court on December 6 of this year. So it appears that as of today, women in Texas are effectively banned from getting an abortion at least until December 6. But it is also important to note that the oral arguments in this case will be presented to the very same panel that allowed the law to go forth this past Thursday. I am not hopeful.
The situation is similarly bleak in several other U.S. states. For example, in Mississippi, there is exactly one abortion clinic, and it is located in Jackson, the state capital. This clinic is the subject of litigation that has made its way through the U.S. federal judiciary and is currently before the Supreme Court. This case has the potential to completely overturn Roe v. Wade. In addition to Texas and Mississippi, 12 other U.S. states have enacted laws that effectively ban abortion: Alabama, Arkansas, Georgia, Kentucky, Louisiana, Missouri, Montana, Ohio, Oklahoma, South Carolina, Tennessee, and Utah.
Because the Mississippi case is the one that most actively threatens Roe v. Wade at the Supreme Court level, I will focus on it here.
“The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When government controls that decision for her, she is being treated less than a fully adult human responsible for her own choices.”
In 2018, the Mississippi legislature enacted the Gestational Age Act, which states: “Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform, induce, or attempt to perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.”
The law became effective the minute the governor signed it, but the Jackson Women’s Health Organization, the only abortion clinic in the state of Mississippi, filed suit immediately and a federal court issued an order staying the law. So that law is not in effect today.
In the meantime, the case made its way through the federal judiciary. The lowest court ultimately ruled that the law was unconstitutional because it violated Roe v. Wade, and it did not mince words. In its ruling, it accused the state of being “proud to challenge Roe,” and compared the law to “the old Mississippi – the Mississippi bent on controlling women and minorities. The Mississippi that, just a few decades ago, barred women from serving on juries so they may continue their service as mothers, wives, and homemakers. . . . the Mississippi that … sterilized six out of ten black women in Sunflower County at the local hospital against their will. . . . And the Mississippi that, in the early 1980s, was the last State to ratify the 19th Amendment.” While conducting some subsequent research, I learned that Mississippi did not, in fact, ratify the 19th Amendment, which prohibited voting restrictions on the basis of sex in the U.S., until 1984. In any event, the state appealed the ruling, but it was upheld on appeal on the basis that the Mississippi abortion ban violated Roe v. Wade.
The state then asked the Supreme Court to review the matter. The U.S. Supreme Court has complete discretion to determine which cases it takes. It has established some overarching principles that it uses to determine which cases are appropriate for consideration, but it is not legally required to follow them. It can take any case it wants to, and it is not required to provide any reasoning to justify its decisions. Had the Supreme Court not taken up this case, Roe would not meaningfully be in question. However, the Court announced in May of this year that it would be taking up the case. A pessimistic view of the situation is that it did so specifically in order to overturn Roe v. Wade. Oral arguments are scheduled for December 1 of this year, and a decision is expected in the spring.
This has all served as a warning to feminists all over the country. We are excruciatingly aware of the threat that this poses to women all over the country, and we are fighting back.
It is important to note that if the Supreme Court ultimately overturns Roe v. Wade, that will NOT mean that abortion will be outlawed throughout the U.S. What it will mean is that it will be up to states to decide whether women ought to be permitted to make our own decisions about our reproductive lives.
On October 6, 2018, the U.S. Senate voted to confirm Brett Kavanaugh as a Supreme Court Justice. On October 26, 2020, the U.S. Senate voted to confirm Amy Coney Barrett for the same position. Both were Trump nominees. I have little faith that the current Supreme Court will rule in a manner that protects women’s bodies and lives. But the U.S. chapter of the Women’s Human Rights Campaign will not stop fighting.