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The Supreme Court’s SB 8 hearing is a fight for nationwide abortion access

by Alison Regan, opinion contributor - 10/26/21 2:01 PM ET

The United States Supreme Court has accepted a request from abortion-rights advocates and providers to expeditiously consider their challenge to Texas state law, known as Senate Bill 8 (SB 8), which is one of the most destructive state bans ever enacted by circumventing Roe v. Wade and essentially blocking access to abortion care in the state. Oral arguments will begin on Nov. 1.

SB 8 has revealed for the country what many of us have known for decades: Reproductive rights are not the same as reproductive justice. Abortion rights without access are rights in name only.

SB 8, an abortion ban that prohibits the procedure before most women even know they’re pregnant, has galvanized women across the country for fear that it is a harbinger of the end of Roe v. Wade, the landmark Supreme Court decision that bars states from banning abortion before viability. But for many women, especially poor women and women of color, abortion has been banned for years.

The reality is that these laws are not new; SB 8 is just the most brazen of the attacks on a woman’s fundamental right to an abortion.

After Roe, equal access remained challenging in states hostile to women and abortion rights. But in 1992, in Planned Parenthood v. Casey, the Supreme Court put very potent weapons into the hands of abortion opponents by creating the “undue burden” standard. Laws restricting abortion would no longer be subject to strict scrutiny, an exacting standard that few restrictions can survive. Instead, they are analyzed as a comparison between the burdens to the woman and the presumed interests of the state. This standard has no analog in other civil rights jurisprudence.

To succeed, challengers to these laws must show that the burden on obtaining an abortion is “undue.” But whether a court sees a burden as “undue” varies depending on who is burdened. And in cases since Casey, when burdens fall on poor or marginalized women or women of color, courts are less likely to find them “undue.” The courts are not persuaded that a woman who has to drive hundreds of miles, take unpaid time off work, endure waiting periods, or extra expenses has suffered an undue burden. These laws, which the Supreme Court has upheld, have erased that fundamental right for millions of women.

These discriminatory laws are at the intersection of racism and sexism and, just like voter restrictions, are designed to disenfranchise communities of color and in particular women of color. When people of color cannot vote, they do not have a say in how they are governed. When women of color cannot control their reproductive lives, they cannot participate in democracy and are, instead, controlled by a government, mostly comprised of white males, that does not represent them and that is making fundamental decisions about their most personal and private affairs for them. This is not only unjust; it is a violation of their civil rights.

As Justice Blackmun wrote in his partial dissent in Casey, “By restricting the right to terminate pregnancies, the State conscripts women’s bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care. The State does not compensate women for their services; instead, it assumes that they owe this duty as a matter of course. This assumption — that women can simply be forced to accept the “natural” status and incidents of motherhood — appears to rest upon a conception of women’s role that has triggered the protection of the Equal Protection Clause.”

A commitment to equal access means codifying Roe at the federal level through the Women’s Health Protection Act and recognizing that abortion care is healthcare. It means repealing the Hyde Amendment so public funding is available for abortions. It means more clinics in more places so that everyone has access to abortion care no matter their zip code or their income. It means affordable, skilled childcare. It means raising the minimum wage, guaranteeing paid family leave and instituting other job protections to strengthen America’s families so when people choose to have children, they are well cared for.

The House recently passed the Women’s Health Protection Act, which not only codifies the right to an abortion but also puts in place many of the programs and protections above. The power to protect reproductive rights hangs in peril. A woman’s right to make her own decisions with her body will only be protected if enough Americans rise up to ensure this effort succeeds and demand not only the Senate vote on this bill but also demand an end to the filibuster if Senate Republicans refuse to allow a vote.