Nation not ready for end of Roe

Imagine every state were free to choose whether to allow Black people and white people to marry. Some states would permit such marriages; others might not. The laws would be a mishmash, and interracial couples would suffer, legally consigned to second-class status depending on where they lived.

It seems unthinkable in 2022. That’s because in 1967, the Supreme Court unanimously ruled that barring interracial marriage, as 16 states still did, violates the 14th Amendment’s guarantee of equal protection. “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the state,” the court stated in Loving v. Virginia.

More than half a century on, Loving is considered one of the court’s great rulings, and yet it was not universally admired at the time. Southern states complied only grudgingly; Alabama didn’t repeal its ban on interracial marriage until 2000. That’s the point of having a federal Constitution that is supreme; the guarantees and rights in that document apply to all Americans equally, wherever they live. The court system exists to protect those rights when state and local authorities refuse to.

Many who oppose Roe v. Wade today, and even some who support it, argue that the 1973 ruling short-circuited a running debate over abortion, a debate that should have been allowed to play out in the states. This is one of the main justifications in the leaked draft opinion in which a majority of Supreme Court justices appear ready to overturn Roe and Planned Parenthood v. Casey, the 1992 decision that preserved Roe’s central holding with certain restrictions.

The problem with this reasoning is that, as in Loving, leaving the matter to states and the political process means that millions of Americans will be denied their fundamental rights — in this case, the right of women to decide what happens inside their own bodies.

The draft opinion relies heavily on the Constitution’s failure to mention abortion, and therefore argues that the document cannot be the basis for the right to terminate a pregnancy. The Constitution also says nothing about interracial marriage, but that didn’t prevent the court from finding in the 14th Amendment the guarantee that no couple may be treated differently because skin color.

In short, constitutional rights are meaningless unless they apply nationwide. That is why the Supreme Court decided Loving v. Virginia and Roe v. Wade as it did. These rights are inherent in the Constitution, even if they are not explicit in it.

The principle is clear: Women and men should have equal control over their own bodies, as many Americans believed in 1973 and a majority believe today. And yet the right to choose whether to terminate a pregnancy is on the verge of being eliminated because five members of the current Supreme Court don’t like it.

Congress has failed repeatedly to codify the protections of Roe and Casey in federal law despite various efforts to do so.

Democrats are now left planning a vote on an abortion rights bill that they know won’t pass. It’s an empty gesture, coming after years of the party failing to provide leadership on reproductive freedom.

President Joe Biden, as leader of the party, has an obligation to take the threat to Americans’ constitutional rights seriously by doing all he can to protect access to abortion. The White House can encourage regulators to make it easier for women to get medication abortions and over-the-counter birth control, to challenge state laws that limit access to medication abortions and to lease federal property to abortion providers. This would show a commitment to the issue, even if legislative options are limited.

Overall, the outlook for reproductive freedom is bleak. In 13 states, “trigger” laws would ban abortions after Roe is overturned. In about a dozen other states, lawmakers are gearing up to severely restrict access to abortions, if not effectively prohibit them, as Texas has already done without interference by the Supreme Court.

The upshot: Within a few months, abortion could be illegal in more than half the states. The anti-abortion movement isn’t stopping there. Efforts are underway to impose a nationwide ban should Republicans regain the White House and Congress.

For the foreseeable future, the battle for reproductive freedom will be fought in the states, by regular Americans, and their state and local representatives, who are trying to protect this right while they can. That means, first and foremost, securing more access.

California lawmakers are moving to pass a package of bills that would make their state one of the most accessible for women seeking to exercise their reproductive freedom.

Those most in need of abortions are often the least able to afford them. States that want to protect reproductive freedom are helping to pay for the procedure and for the travel required to obtain it. Data from the Centers for Disease Control and Prevention show the percentage of abortion services in Illinois and New York provided to nonresidents has already risen sharply over the past decade, a trend driven by increased restrictions on abortion in other states.

New York lawmakers are considering a bill that would direct funds to abortion providers, allowing them to increase staffing and security to meet the demand. In March, Oregon lawmakers approved a $15 million fund for these purposes, which should help provide access to abortion not only for state residents but also for those in neighboring Idaho, which has passed a bill that would prohibit abortions after about six weeks.

All laws are subject to being overturned when the political winds shift, of course. That’s why abortion-rights groups in some states are focused on their own constitutions. In New York, supporters of abortion rights are pushing for a constitutional amendment that would go before voters in 2024, to protect reproductive rights in case the state legislature falls into Republican hands. In Michigan, Gov. Gretchen Whitmer last month asked her state’s Supreme Court to rule that the Michigan Constitution affirmatively protects the right to an abortion.

Finally, pro-choice states are realizing they have to play some strategic defense when it comes to protecting abortion providers, and possibly women who get abortions, from states that reach outside their borders to force their anti-abortion laws on everyone else. Missouri lawmakers, for example, are considering a bill that would allow its residents to sue anyone in any state who helps a Missouri resident get an abortion.

In anticipation of laws like these, a bill in New York would bar law enforcement from assisting in the out-of-state investigation of abortion providers or women who seek abortions in New York. The Connecticut General Assembly has gone even further, passing a law to allow providers in the state to countersue anyone who sues them for damages for providing abortion care.

Meanwhile in Louisiana, lawmakers recently passed out of committee a bill that would define a fertilized egg as a full person — meaning that anyone who performs an abortion, and any women who obtain one, could be charged with murder.

What all this shows is that the right to an abortion cannot be left at the mercy of states — something that few people on either side of this issue genuinely seem to want.

This is why a national standard is necessary. That standard, at least for a few more weeks, is Roe v. Wade as modified by Planned Parenthood v. Casey. These two rulings are not perfect, but they have managed to strike a balance that reflects the public’s complex position on a morally fraught issue. The majority of Americans do not want these cases overturned, and an overwhelming majority say abortion should not be banned.

If you thought Roe v. Wade itself led to discord and division, just wait until it’s gone.