What will it take to protect Roe v. Wade?

Abortion is still technically legal in America, but more than 19 million U.S. women live in areas with less than one health center or provider for every 1,000 women in need. This is largely because clinics have been hindered by Targeted restrictions on abortion providers (TRAP), which limit abortion access by forcing clinics to comply with absurd rules that are cumbersome and medically unnecessary. This obvious targeting of abortion providers, which has undoubtedly contributed to 275 abortion clinics closing since 2013, begs the question: If the constitution really does protect a woman’s right to choose, how can lawmakers get away with these blatant attacks on choice?  

The 1973 Roe v. Wade decision, which affirmed a woman’s right to choose, is often referred to as “the law of the land.” However, it’s actually a Supreme Court decision, not a law, and that distinction is incredibly important. As Trump politicizes the court with his promise to appoint anti-Roe justices, the ruling is vulnerable. As writer Megan McArdle put it, “what the Supreme Court gives, the Supreme Court can take away.” To make matters worse, Roe is already built on shaky ground. The 1965 case Griswold v. Connecticut, which provided the precedent for Roe, concluded that bans on using contraception are unconstitutional because of a right to privacy, as implied by an amalgamation of constitutional amendments. For Roe v. Wade, the justices decided that if the right to privacy supports the right to contraception, it should apply to abortion as well. As journalist Adam Liptak describes on The Daily, Roe’s lawyers believed it was too soon to argue for reproductive rights on the basis of equality, forcing their argument to rest, instead, on a right that isn’t explicitly stated in the Constitution. Ironically, the argument that won Roe v. Wade also made the decision especially precarious.

Roe came under further attack in the 1992 Planned Parenthood v. Casey decision, which allowed states to regulate abortion before viability with one stipulation: these regulations can’t place “undue burden” on the woman. Unfortunately, the decision fails to define what “undue burden” means, allowing legal wiggle room for the TRAP laws of today. Anti-choice activists have capitalized on this vulnerability by using the loopholes created in Casey to pass legislation that has limited clinics or forced them to close by imposing ridiculous requirements on them. Take, for example, the last abortion clinic in Missouri, which is currently hanging on by a thread because the state government refuses to renew its licensing. The intention of these laws is ultimately to have them challenged in the courts until a case reaches the Supreme Court, presenting the justices with a clear opportunity to overturn Roe.  

If the U.S. wants to truly solidify the right to an abortion, therefore, we have to codify Roe as the actual law of the land. This would protect the right to choose from the shifting politics of the Supreme Court and severely limit a state’s ability to restrict abortion. It would also move repealing Roe into the hands of Congress and an electorate where 77% of people oppose overturning Roe. 

Thankfully, the issue is gaining momentum. All top Democratic presidential candidates are in favor of codification. There’s even legislation on the table. Originally introduced in 2013 by a group of Democratic senators and representatives, the Women’s Health Protection Act not only seeks to turn Roe v. Wade into law but targets specific anti-choice strategies for undermining abortion rights. The bill would ban any abortion restriction that was not medically necessary or applied to similar health procedures, including illegal regulations such as 20-week bans, six-week bans, and requirements that providers obtain admitting privileges at local hospitals and that clinics must be equipped as ambulatory surgical centers.

Since the bill was reintroduced to Congress in May, it acquired 173 co-sponsors. Despite this support, the bill is still a long way from becoming law, and would likely only pass once Democrats regain control of the Senate and presidency. So, at the moment, creating federal legislation around abortion rights has to be a long-term goal. 

Of course, we still can’t abandon the fight to keep Roe v. Wade from being overturned. Commentators have argued whether Roe is destined to be overturned or will just be chipped away, but both options offer a bleak future. If the Supreme Court overturns Roe, not only will abortion become immediately illegal in seven states due to trigger laws, but it will also become harder to codify Roe. The bright spot now, though, is that many agree activism works. As Harry Enten writes for CNN, “public pressure might be one of the only barriers standing in the way of the court overturning Roe.”