Roe at 44 May Be Our Worst Roe Ever

On the first day, Republican President Donald Trump signed the Global Gag Rule, and he looked to his all-male audience in the Oval Office and Trump saw that it was good.

On January 22, 1973 the U.S. Supreme Court made abortion legal in all 50 states. Seven aging white men overruled two other aging white men and announced that abortion as a medical procedure performed by a physician prior to viability was protected by the Constitution’s right to privacy.

That, unfortunately, became a high point for the abortion rights movement. Within three years opponents were already chipping away at the right to choose. The Hyde Amendment— a federal budget rider that forbade Medicaid reimbursements for abortion unless the patient’s life was in danger or the pregnancy resulted from sexual assault—was introduced in 1976 as a way to force low income people into remaining pregnant. It has been renewed every year since. Then, in the early 80’s the “Rescue” movement developed, forming physical barriers in front of clinics with chains, cars, and even their own bodies. It was a trend that escalated until the mid 90’s when the FACE Act (Freedom of Access to Clinic Entrances Act) barred opponents from blocking doors, while violent acts against buildings and providers caused many of the most militant anti-choice activists to tone down their tactics.

The first major court case meant to regulate and limit abortion access – Webster v. Reproductive Health Services – was heard by the Supreme Court in 1989. While many of the restrictions proposed were struck down it created the blueprint that would be used again and again as the anti-choice movement continued their effort to block pregnant people from accessing abortion services, as well as find a new case that could potentially overturn Roe and let states once more make abortion illegal with their borders.

On the second day, Republican President Donald Trump vowed to sign H.R. 7, making the Hyde Amendment permanent and eliminating abortion coverage from all plans on the insurance exchange. When told that the poor and communities of color would likely be forced to carry unwanted pregnancies to term or risk illegal abortions, Congressional Republicans said that it was good.

Oddly enough the abortion battle historically has been more aggressive when Democrats control the federal government. In the early days post-Roe, Republican President Ronald Reagan dramatically disappointed anti-abortion activists by refusing to push ahead on a constitutional amendment to declare life as protected from the moment of fertilization—the first in what would become a long series of failures for  the “Personhood” movement. Meanwhile, clinic blockades, provider harassment, bombings and terrorist attacks, and even the murder of doctors and others flourished during Democratic President Bill Clinton’s time in office.

Republican President George W. Bush oversaw a period of extensive support for anti-choice advocacy groups by funding abstinence-only education grants and pouring federal resources into his “Faith-Based Initiatives.” But as for abortion restrictions themselves, there was far less momentum. The so-called “Partial Birth Abortion” ban—a federal ban on a procedure known as D&X (Dilation and Extraction) although so vaguely written many providers worried that more common D&E (Dilation and Evacuation)might be included, too—served as the biggest victory of Bush’s administration. The 2004 passage of the federal “Unborn Victims of Violence Act” at the time wasn’t seen as an abortion rights issue. However, since then the Act has been used as a wedge to help criminalize pregnancy and jail those who pursue abortion outside a clinic setting, or even are accused of “endangering” their fetus via drug use or other activities. The real victims in this are almost always communities that are poor and people of color.

Then of course there were the Obama years, when a tidal wave of abortion restrictions hit state legislatures. According to the Guttmacher Institute, well over 300 abortion restrictions were enacted while Democratic President Barack Obama was in office, as abortion opponents shifted their focus to state legislatures, knowing federal legislation would be vetoed. The bills, often blatantly and purposefully unconstitutional, created a pool of lawsuits and court cases, many still pending as the country heads into what is expected to be a newly conservative-leaning Supreme Court.

On the third day, Republican President Donald Trump announced a new Supreme Court nominee was forthcoming, one who would believe there is no constitutional right to an abortion. And the opponents of abortion grew overjoyed and saw that this was good.

When it comes to federal abortion policies, action is almost always dependent on which party is in control of Congress or the White House. Whenever Republicans control Congress, they have the ability to use the budget to block some abortion funding—such as overruling the city of D.C.’s policy of allowing Medicaid patients to use their insurance to cover abortions. When Democrats are in charge, that policy reverses.

The same is true with the Mexico City Policy, the global gag rule that forbids federal funds from going to international organizations that so much as mention abortion as existing as a medical procedure. Despite the fact that the Helms Amendment (another annual Congressional budget rider) blocks these organizations from using the funds to pay for abortion, in Republican policy-world having taxpayer dollars while even talking about abortion as an option is tantamount to performing the abortion itself. When a Republican is president, the global gag rule is enacted. When a Democrat is in office, it is removed.

But having Congress, The White House, the Supreme Court and most of the states in the nation all under one party’s control? That’s more alarming, and signals real danger for abortion rights. President Trump already signed one executive order restricting abortion funding, and just one week into his presidency Congressional Republicans have filed a bill that would remove abortion coverage from any insurance plan in the federal healthcare exchange and that would make the Hyde Amendment permanent. That bill passed the House and is on its way to the Senate.

Also on deck is a ban on abortion at 6 weeks or sooner, a bill claiming life begins at and must be protected at conception—a declaration that could make some forms of birth control illegal—and a federal ban on abortion at 22 weeks gestation. While there is little doubt the first two wouldn’t survive a review by the Supreme Court—even with a new Trump appointee—the third bill’s fate in front of the justices isn’t as clear. And if the Republicans get to replace just one more judge on the bench, the first two could be upheld as well.

And on the fifth day, Republican President Donald Trump promises “heavy administration presence” at the national March for Life. And he saw all that he had made, and behold, it was very good.

In the 44 years since Roe, the right to access a legal abortion has never been in more danger. The last eight years of state-based restrictions may have closed hundreds of clinics and overburdened those that remain, but abortion remains available—even if it has become increasingly impossible for anyone without financial means to obtain it. What we are now ushering in is a period of federal restrictions that could take away even that patchwork of accessibility, and we may not be able to rely on the Supreme Court to stop it.

If January 22, 1973 was the abortion rights movement’s high point, we are definitely seeing its low point today. It is imperative that we band together immediately now to push back on our rights.

Because this? This is really, really not good.

by Robin Marty
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