Shockwaves swept across the United States — and the world — on the evening of May 2 as a draft of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization was leaked to US media Politico. Drafted by Judge Samuel Alito, the document would seal the fate of Roe v. wade : at the dawn of the 50th anniversary of this decision legalizing access to abortion throughout the country, the right would no longer be.
But is it really a shock wave?
The decision, the official version of which is expected by the end of June, is not a surprise. As early as the fall, the signals suggested a cancellation of Roe v. wade, or at the very least to a considerable erosion of the right to abortion. That’s because last fall, the Supreme Court heard two abortion-related cases: the Texas SB8 case and the Mississippi case (in Dobbs).
Two clues made us fear what is happening today. First, in the Texas case, the Court allowed the law to operate during the legal process rather than suspending its operation (as is the case with many restrictive abortion laws ). Then, during the oral arguments in Dobbs, the questions of the judges let guess – to the public as to their colleagues – their orientation and their legal reflections. If Chief Justice John Roberts seemed open to a partial erosion of Roe v. wade more than a cancellation, his five conservative colleagues flirted more with a possible invalidation of this landmark decision of 1973.
Predictable, but not without consequences
So what does this upcoming cancellation of Roe v. wade ? First, the Court has exacerbated what has been observed for several years, namely a right to abortion with variable geography. This situation is already observable in the United States due to subsequent decisions by the Supreme Court which gave more powers to states wishing to regulate abortion. Consequently, this unequal access will not be new, but despite the erosion of the right since 1973, each woman could still have minimal access to the intervention in her State of residence. This variable will change.
deny Roe v. wade essentially means that states will once again be entirely responsible for access — or not — to abortion on their territory. Currently, 13 states have laws that will automatically trigger if the decision is reversed. Abortion will therefore be illegal on their territory. In an almost equal number of States, it is anticipated that abortion will be severely limited, even made illegal. Conversely, progressive states have, in recent years, adopted laws aimed at protecting the right to abortion, or even enshrining it in their constitutions. This is the case, for example, of Vermont, where a referendum vote is scheduled for November 8th.
We are therefore witnessing the cementing of two paths in the United States: the restrictive one of the conservative states and the protective one of the progressive states. Based on the case of the SB8 law and its repercussions since its application last September, two observations are essential: pregnant people are resilient, but the resources are not unlimited.
Resilience…
In Texas, where abortion is illegal from the sixth week of pregnancy since the 1er September 2021, the demand for an abortion has halved — but the number of Texan women getting an abortion hasn’t dropped as drastically. According to two studies, conducted by researchers at the University of Texas at Austin, pregnant people turn to other options, mainly moving to a neighboring state where the intervention remains accessible and abortion by medication.
The first strategy—moving out of state—has been documented in both research and journalistic accounts. Clinics in bordering states — and beyond to Illinois — have seen an increase in patients from the Lone Star State. While this option is more costly (women having to assume both the costs of the intervention and those associated with the trip), solutions exist for those who have more limited financial means. Abortion funds, national and regional, support pregnant people to access abortion, in their state or outside it.
In addition, the restrictions enacted in conservative states, whose number has been steadily increasing since the 2010 elections, have also mobilized local and transnational groups (including websites such as Aid Access) whose goal is to make home abortions accessible. through access to drugs used in the context of medical abortions. This is particularly the case along the Mexico-US border, where women cross into Mexico to buy one of the two drugs, offered over the counter. Not marking a return to dangerous practices, these networks ensure a resumption of control of abortion by women and reduce the barriers to access.
… to bodily and logistical limits
If these circumvention strategies allow many to lessen the effects of a lack of local access to abortion, not everyone has access to it equally. For uninformed women whose mobility is restricted, for mothers who do not have help to look after their children, for workers whose precarious employment prevents any absence of a few days, for those who do not know these resources replacement, the obstacles remain.
Moreover, clinics in progressive states operate with limited capacity, and in a context of staff shortages, which limits their ability to absorb possible more sustained displacements. Organizations are preparing, but resources remain limited. A reorganization of the representation of access to abortion is necessary, but time is running out, and other laws, aimed in particular at prohibiting women from accessing abortion in another State, are under study (for example, in Missouri).
The cancellation of Roe v. wade will mark the end of legal abortion across the country. But this does not mark the end of attempts to control the female body.