The leaking of Supreme Court Justice Samuel Alito’s draft opinion makes it clear that we no longer need to wait for the other shoe to drop on Roe v. Wade. Indeed, we already are living in a post-Roe world. There’s no time to sit and mourn, we need everyone to pick up an oar now to protect our fundamental human rights.
Although the opinion is still in draft form, the court’s five-justice conservative majority has long been clear that it intends to completely eradicate Roe’s federal constitutional protection for abortion rights and turn the issue back to the states. More than half the states are salivating for this anti-abortion moment, with many already acting as if Roe is long gone.
Take Texas, which last September first banned nearly all abortion services, creating chaos and suffering for any residents needing an abortion. Nearby states, and some faraway states, have been flooded with abortion migrants forced to travel far to access services. Family members, medical providers and even taxi drivers have been dissuaded from trying to assist them.
Incredibly, and inevitably, a Texas woman was arrested and charged with murder when she allegedly reported to a hospital after attempting to self-induce an abortion. The details remain unclear, but mercifully the charges against her soon were dropped as the prosecutor admitted that the Texas criminal law did not fit her situation. Yet as confusion reigns and reproductive rights evaporate, we are more likely to see criminal law be used against lower-income people and communities of color.
By signaling that Roe is soon to be rendered toothless, the Supreme Court already has opened the floodgates for anti-abortion legislation to flow freely forth from red states. This year, red state legislators are showing unprecedented cruelty in the text of the bills.
Idaho and Oklahoma are first, with several other red states set to mimic the Texas ban or take it one step farther, banning nearly all but life-saving abortion. Recognizing that women will still seek abortion services despite these draconian bans, many states are introducing bills targeting medication abortion, the safe and discrete first-trimester option that many patients prefer, or proposing bills that ban travel to other states for abortion care.
Some good news though: blue and purple states including California, Colorado, New Mexico, New Jersey and Washington are stepping up to introduce bills to shore up access to abortion by including funding, training and legal protections for those in-state as well as for abortion migrants.
There is no need to wait for the court to officially release its opinion in Dobbs v. Jackson Women’s Health Organization. Right now there are actions we can take to protect our fundamental human right to decide when, whether and with whom to have a child or not.
First, we need to openly acknowledge that tens of thousands more women and girls who risk unplanned pregnancy or health complications now face a complete denial of abortion access. For far too long, accessing abortion has depended on individual resources and an ability to overcome barriers to health care, including race inequity. Many young women and teens, those in rural areas, in poverty and, disproportionately, women of color, have been living in a “post-Roe” world for quite some time with far too little access to abortion and it’s going to get worse now. We need allies to stand up and defend their human rights.
It’s urgent that we help women and all people seeking abortion services either to travel to sanctuary states or to receive medication abortion remotely, quickly, affordably and with the full protection of the law. Support those private abortion funds that assist people traveling for abortion services. They are overwhelmed now already, and the need will only grow.
If you live in a blue state, make sure it rolls out the welcome mat for abortion migrants from other states by expanding access to medication abortion through telemedicine, urgent care centers, public university health care clinics — and offering public funding to those who need it. Demand that corporations raise their voices along with us — no more hiding under the desk.
Already we are seeing grassroots activists taking steps to empower women to safely self-induce abortion either through medication or by teaching how to make and use simple, homemade devices for early abortions at home. Before Roe legalized abortion nationwide in 1973, women and their allies often took matters literally into their own hands to provide safe abortions without stigmatization although often at risk to their health and fertility. Today, we have safer alternatives but the risk of criminal penalties from the criminal justice system remains real.
The majority of Americans consistently support a woman’s right to abortion. And nearly one in four women will have an abortion during her lifetime. Without a federal constitutional right to abortion, it is more important than ever to vote for and support elected officials who will enact legislation at the state, local and federal level to protect abortion rights and guarantee access for all. Pay attention to state legislative elections in states like Nebraska and Pennsylvania which will determine whether those key states preserve legal abortion within their borders.
The leak has made it clear that the floodgates of abortion bans are coming. Let’s not wait to stand up to protect our most basic human rights.
Julie F. Kay is a human rights lawyer who argued against Ireland’s ban on abortion before the European Court of Human Rights and the coauthor of “Controlling Women: What We Must Do Now to Save Reproductive Freedom.”