The Next Big Challenge to Abortion Rights
September 9, 2021
The Supreme Court just declined to block a controversial abortion ban in Texas. Now an even bigger case looms on their docket, and it could dramatically alter abortion access across the U.S.
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Dan Gorenstein: The right to an abortion in the United States is under threat.
News clip: A late night 5-4 vote allows the country’s most restrictive abortion law to stand in Texas.
DG: Last week, the Supreme Court refused to block a Texas law that bans nearly all abortions at six weeks…long before most women know they’re pregnant.
That inaction has halted most abortion procedures there and while it’s the most recent blow to abortion rights…it’s far from the first.
News clip: In five Alabama cities today: outrage.
News clip: The Missouri Senate passed a bill today banning most abortions after 8 weeks.
News clip: Georgia has passed one of the most restrictive abortion policies in the country.
DG: And it may not even be the most important.
When the Supreme Court reconvenes this fall, the justices will hear a case out of Mississippi that some worry may spell the end of a federal right to an abortion.
Today, the case known as Dobbs v. Jackson Women’s Health…and how it may impact the lives and livelihoods of people seeking abortions.
From the studio at the Leonard Davis Institute at the University of Pennsylvania, I’m Dan Gorenstein, and this is Tradeoffs.
DG: For going on 30 years, the Supreme Court has allowed states to restrict access to abortion in all kinds of ways.
But the court has never allowed any state to ban abortions before a fetus is considered viable, meaning it can live outside the womb without medical help.
Laurie Sobel says that may be about to change.
Laurie Sobel: This is the first case asking the court whether a state can ban all abortion procedures before a fetus can survive outside of the woman’s body.
DG: Laurie is an attorney and Associate Director of Women’s Health Policy at the Kaiser Family Foundation.
The Mississippi law in question would ban abortions after 15 weeks…a fetus is considered viable at around 24 weeks.
Laurie says the case has two major legal ramifications.
First, the Court could eliminate the current pre-viability protection.
LS: It would open the door to states being allowed to ban all abortions at a certain gestational period in pregnancy. And then we would see probably a lot more states trying to pass those bans and get to the Supreme Court to say, “Is our 10 week ban okay?” And we’ve seen a flood in 2021 of states passing what are called heartbeat bills, which are bans at six weeks. And so, like, where is the goalpost?
DG: Even if the justices rule there’s a constitutional right to abortion, the pre-viability window could shrink from around 24 weeks to something much smaller.
And that’s the second shoe to drop.
In the 1992 case Planned Parenthood v. Casey, states were given the power to regulate abortions as long as the regulations didn’t place an “undue burden” — basically a substantial obstacle blocking a woman’s ability to get an abortion.
Laurie says Mississippi is arguing their law is not an undue burden.
LS: They claim that the law does not impose a substantial obstacle to a significant number of women seeking abortions. Now, you have to understand that Jackson Women’s Health, the only abortion provider in Mississippi, only provides abortions up to 16 weeks. So Mississippi cites that very few women in Mississippi obtain abortions after 15 weeks.
DG: CDC data show nationwide more than 90% of abortions already occur before 13 weeks.
So, on first blush, maybe a ban after 15 weeks is less restrictive than it may seem. But that 90% number can be misleading, says Laurie.
That’s because it captures the people who manage to get around all the obstacles. It misses all those who get blocked by the restrictions, head out of state or struggle to pay for the services.
LS: Each person has a constitutional right to obtain an abortion before viability, so it doesn’t really matter if most people can get it, if one person is not able to obtain services during the time period in which they’re constitutionally entitled to get that service.
DG: And if the Court agrees with Mississippi that the law is not too burdensome, Laurie says it’s likely other states will rush in to make it even harder to exercise this constitutional right.
When we come back, the long-term impacts of carrying an unwanted pregnancy to term, and the fallout from the new Texas law.
DG: Welcome back.
We’re talking with two women’s health experts from the Kaiser Family Foundation about the upcoming Supreme Court case Dobbs v. Jackson Women’s Health. The ruling could trigger a chain reaction of heightened abortion restrictions and clinic closures nationwide.
We spoke with attorney Laurie Sobel. Now let’s bring in Alina Salganicoff, Director of Women’s Health Policy at KFF.
DG: Alina, in quiet moments when you find yourself driving to the store, taking a walk, who do you imagine is the most likely to be impacted by this?
AS: Without a doubt it is low-income women and young women are the two, I think, that are going to be the most impacted because it’s going to be very difficult for them to travel out of state to get the money to do that. And for a young woman, in many cases, it’s really difficult for her to do that. She doesn’t want to tell her family to travel a long distance and sometimes for multiple days, because even the states that may continue to offer abortion may have waiting periods.
DG: Alina says regulations also disproportionately affect women of color, who comprise about 70 percent of people who get abortions.
DG: Often abortion ends up being a discussion about science, law or ethics. But I’d like to talk a little about economics.
There’s a 2020 study from the University of Michigan that analyzed 10 years of credit data from women who carried unwanted pregnancies to term. Those mothers had higher amounts of debt and were 80 percent more likely to be involved in bankruptcies, evictions or tax liens.
Alina, what do you think the economic impact would be for people who are no longer able get abortions?
AS: So women who were turned away, women who were too late to get abortions and went on to give birth, experienced an increase in household poverty that lasted four years, relative to women who obtained abortion. They had much more difficulty having enough money to cover basic expenses like housing, transportation and food. They even documented that these women had lower credit scores. So the financial consequences are very real and serious.
DG: Let’s talk a bit about this Texas law, which just took effect on September 1st.
Laurie, as the legal expert here, let’s bring you back in. Simply, what does the law do?
LS: So the law bans all abortions in Texas starting at six weeks. And what’s unusual about the law is that instead of the state enforcing this ban, they have allowed individuals — any individual who does not work for the state or local government in Texas — can enforce this law by suing anyone who either directly provides an abortion after six weeks or helps in any way someone who is getting an abortion. And it’s any individual can bring these lawsuits. The person being sued has a fine starting at $10,000 and then could also be liable for the legal fees of the person bringing the lawsuit, if that person is successful.
DG: Have we ever seen a law like that before?
LS: No, we’ve never seen a law like this before.
DG: Now, as soon as this Texas law took effect, abortion rights advocates filed an emergency appeal with the Supreme Court to block it. The court voted 5-4 not to intervene.
I’m curious, Laurie, this seems like such a controversial law with all sorts of ramifications. Is it unusual for the Supreme Court to not weigh in in a situation like this…and I’m not talking just about abortion, just in general?
LS: Well, yes, because we could see copycat laws where other states who want to ban abortion early in pregnancy could do the same thing even if this law is not ultimately successful. It obviously has implications for other areas of the law. Can you deputize private citizens to enforce all sorts of laws that would be questionably illegal, like can a blue state say, we want to have private citizens sue anyone that has a firearm? So there’s all sorts of implications for other areas of the law where we probably don’t want private citizens doing these types of lawsuits.
DG: How long have you, Alina, been working on abortion-related policy issues?
AS: Over 30 years.
DG: And at any point in those 30 years, have you ever felt like you’re in a moment like this where it really seems like, given the Dobbs case, given this new Texas law, that the right to an abortion in the United States is under threat?
AS: Over the years that I have been working in this field, I have seen a slow but consistent erosion of abortion access across many states in the country. But for the first time, we are seeing one state actually block abortion access. Roe v. Wade is not in effect for people who live in Texas. And I have never seen that before in the work that I have done. So it does really crystallize for people what is at stake right now with the Mississippi case and perhaps with the Texas case. But people who live in Texas are now living in a post-Roe world, at least for the time being.
DG: Last question, Alina: How do you think this Texas law and the Supreme Court’s inaction may influence the outcome in Dobbs?
AS: Well, it’s hard to say. It’s always hard to predict how the Supreme Court will act. But clearly, the fact that a majority in the Supreme Court basically said it’s OK to block most abortions in the state of Texas, while the challenge to the Texas law goes through, sends a strong signal that they will be open to revisiting Roe, to revisiting Casey. And I think many people are very concerned that access to abortion in many states across the country is at risk.
DG: Alina, Laurie, thank you for taking the time to talk with us on Tradeoffs.
AS: Thank you so much for inviting us.
LS: Thank you. It was our pleasure.
DG: The immediate fallout in Texas continues.
The Justice Department has pledged to protect people seeking or providing reproductive health services. News reports say providers have canceled procedures…and according to the Planned Parenthood website, some clinics have stopped providing abortion services.
The Supreme Court has yet to schedule oral arguments for the Mississippi case. A decision is expected next June.
I’m Dan Gorenstein and this is Tradeoffs.
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Select Recent Reporting and Research on Abortion Access:
The Supreme Court Heads Toward Reversing Abortion Rights (Nina Totenberg, NPR, 9/3/2021)
The Mississippi clinic at the center of the fight to end abortion in America (Emily Wax-Thibodeaux and Ariana Eunjung Cha, Washington Post, 8/24/2021)
Where Abortion Access Would Decline if Roe v. Wade Were Overturned (Quoctrung Bui, Claire Cain Miller and Margot Sanger-Katz; New York Times; 5/18/2021)
Supreme Court agrees to hear Mississippi challenge to Roe v. Wade (Shefali Luthra and Mariel Padilla, The 19th, 5/17/2021)
Study Examines The Lasting Effects Of Having — Or Being Denied — An Abortion (Fresh Air, NPR, 6/16/2020)
The Economic Consequences of Being Denied an Abortion (Sarah Miller, Laura R. Wherry and Diana Greene Foster; NBER; 1/2020)
Alina Salganicoff, PhD, Senior Vice President and Director of Women’s Health Policy, Kaiser Family Foundation
Laurie Sobel, JD, Associate Director, Women’s Health Policy, Kaiser Family Foundation
The Tradeoffs theme song was composed by Ty Citerman, with additional music this episode by Blue Dot Sessions.
This episode was produced by Mary Franklin Harvin and mixed by Andrew Parrella. Web by Leslie Walker.