Abortion Isn't Over, But It's Not Looking Good

Making sense of the Supreme Court's leaked Roe v. Wade decision and what else is at stake

Abortion Isn't Over, But It's Not Looking Good
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Over the past couple of years, I've been asked more times than I can count if I really thought the Supreme Court would overturn Roe v. Wade. Yes, I answered, time after time. They've been working on it for years. And now we know the decision's days are numbered.

On Monday night, POLITICO reported that it had obtained a leaked first draft of the Supreme Court opinion in Dobbs v. Jackson Women's Health Organization in which the Court will strike down Roe v. Wade, the landmark ruling that legalized abortion nationwide in 1973. It was a stunning leak, though not unprecedented, and while this opinion is a draft and not the final ruling, it suggests that the Court will overturn both Roe v. Wade and Planned Parenthood v. Casey, a 1992 Supreme Court ruling that reaffirmed the constitutional right to abortion care.

I'm grateful for the leak, in a way. I don't know who leaked it or what their intentions were. No one but the POLITICO reporters know that, I'm guessing. But it has, at the very least, given the American public a window into what those of us who have been entrenched in abortion rights have known for a long time: overturning Roe v. Wade has always been conservatives' plan. They haven't been coy about it, and any real shock and outrage at this moment is sadly too late. They finally have the numbers to do what is both deeply unpopular and was once unthinkable: overturn Roe v. Wade, removing the promise of legal abortion in this country.

The seeds of this decision were planted when, in 2016, President Obama was denied his rightful appointment of Merrick Garland to the Supreme Court. They sprouted when Anthony Kennedy stepped down in the summer of 2018 and was replaced by Brett Kavanaugh, a man credibly accused of sexual assault. They blossomed once Amy Coney Barrett, an openly antiabortion judge, was sworn in on October 26, 2020 in place of the late Ruth Bader Ginsburg. Now, they're bearing the fruit that has been growing for years. It's happening and no one can pretend anymore that it isn't. The Supreme Court is going to strike down Roe v. Wade.

"Roe was egregiously wrong from the start," Justice Samuel Alito wrote for the majority in the draft decision. "It is time to heed the Constituiton and return the issue of abortion to the people's elected representatives."

Indeed, something is egregiously wrong here, Justice Alito, but it isn't Roe.

This kind of judicial gaslighting is nothing new. It's precisely the kind of sleight of hand that motivated Justice Sonia Sotomayor to call out the "stench" coming from her peers on the bench. But it's particularly sinister to claim that, if people want legal abortion, they can simply vote for candidates who support it, when this Court has essentially narrowed the Voting Rights Act into futility and just this year, took yet another case that could cripple voting rights, particularly for Black and brown Americans, for years to come.

If there was any doubt about where this Court was heading after striking down Roe, this opinion makes it clear. "[Roe] held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned." The "right to privacy," established in Griswold v. Connecticut in 1965, is fundamental to the right to same-sex marriage as well as ending bans on sodomy and birth control. In this decision, the Court has said what many of us have long feared: abortion isn't the end game, but the tip of the iceberg. This Court's conservative majority doesn't believe the right to privacy exists, and with that, the rights of queer folks and people with uteruses — anyone who doesn't rigidly adhere to conjugal marital heterosexuality will not be allowed to function as a full citizen of the United States.

What the Court is doing is abhorrent and so dramatically out of step with the American electorate (the majority of whom support Roe v. Wade and keeping abortion legal, accessible, and safe). Public opinion and judicial precedent be damned, they now have the numbers to overturn Roe v. Wade. They have the numbers to overturn Obergefell v. Hodges and Lawrence v. Texas and Griswold v. Connecticut. They can do it all. They can end the right to privacy and so severely curtail voting rights that their party can maintain power, despite a lack of popularity for their draconian rulings, for years to come.

But we have power, too.

Once this decision is final, which is expected to happen this summer, the South and the Midwest will become a legal abortion desert, as up to 26 states will likely ban abortion when Roe is officially put to rest. This can happen instantaneously thanks to trigger laws set to go into effect once the judicial path is cleared for them. Yet people in those states will still need abortion care, and they still have a fundamental human right to access it. The Supreme Court can, unfortunately, pave the way for the clinics in those states to close, but they cannot stop all of us from organizing to bridge the gap.

There is a long and storied history of everyday folks volunteering and organizing to protect abortion access with their literal bodies when law enforcement and those in power have refused to step up, as I detail in my new book Bodies on the Line: At the Front Lines of the Fight to Protect Abortion in America. While the possibility of a post-Roe world may be new to many, those in the abortion access and reproductive justice movements have been preparing for this moment for years. They have laid a foundation upon which we should build rather than coopt, and collaborate rather than duplicate.

Abortion funds, which are grassroots organizations that provide financial assistance and practical support for people accessing abortion care will need a significant, long-term increase in funding. These funds are not going to stop providing financial assistance to people in states where abortion is illegal –– they are just going to need significantly more in funding to help folks travel out of state.

If you live in a state that is currently supportive of abortion rights and want to support those who will need to travel to your state, contact your local clinic or abortion fund and ask how you can support them. Some organizations, like the DMV Practical Support Network, train volunteers to provide transportation and other forms of practical support for folks traveling to the DC-area for abortion care. Others, like Midwest Access Coalition and the Brigid Alliance, specialize in practical support for abortion care and they have the experience and resources to allow you to help in a meaningful way. You may not change a political structure, but positively affecting someone's life by helping them access safe abortion care is worth doing, now more than ever.

So, yes, the Supreme Court is overturning Roe v. Wade. Whoever leaked this to POLITICO, whether they intended to be a whistleblower or were just so horrified at what the Court was about to do that they leaked it out of spite, it doesn't matter. What does matter is that we've been given a chance to prepare. The Band-Aid has been ripped off. Roe v. Wade is done. We can't undo that. But we can mobilize within our own communities to support what we know are fundamental human rights, like access to safe abortion and gender-affirming health care. We can refuse to sit silently while this Court strips us of our humanity and our citizenship. We can dream of and work toward a world where this kind of grave injustice, one so clearly manipulative and malevolent, won't happen again.

Roe is done. Same-sex marriage, contraception, and a host of other rights are on the chopping block. With this leaked draft, the Court has finally shown its cards. We know what they're going to do. The question now is: What are we going to do about it?

Lauren Rankin is a writer, activist, and expert in abortion rights in the U.S. Her book, Bodies on the Line: At the Front Lines of the Fight to Protect Abortion in America about the legacy of everyday volunteers on the fight for abortion rights is available wherever books are sold.

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