Forget the Supreme Court — overturning Roe v. Wade isn't the biggest threat to abortion rights

abortion supreme court roe

In the war for reproductive rights being waged across the country, antiabortion activists are winning.

Since the Supreme Court recognized abortion as a constitutional right over 40 years ago, antiabortion activists have aggressively pushed through pre-written legislation, funded antiabortion candidates, and fought (and frequently won) costly legal battles.

In short, they’ve had better ground game.

While the right to abortion remains the law of the land under the landmark ruling in Roe v. Wade, the reality for millions of women says otherwise.

As conservative former Supreme Court Chief Justice William Rehnquist described in a 1992 opinion, “Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality.”

President Donald Trump’s nominee for the late Justice Antonin Scalia’s empty Supreme Court seat, Neil Gorsuch, was so contentious that Republicans went “nuclear,” changing the voting rules so they could put add Gorsuch to the bench with a simple majority vote.

Even if Gorsuch proves to be against abortion, the abortion supporters maintain a shaky 5-4 advantage on the court. If Trump gets to appoint another justice, the legality of abortion nationwide could be in jeopardy. But legal experts caution that much bigger threats are looming.

‘All the monetary and political incentive in the world’

In 2016, 50 new antiabortion laws were passed in the US at the state level, bringing the total of new state laws since 2010 to 338, according to data from the Guttmacher Institute.

The state-level push has been driven, according to James Owens, NARAL Pro-Choice America’s states communications director, by “well-funded” national organizations that have lobbied state legislators to systematically restrict reproductive rights.

“There’s all the monetary and political incentive in the world for these anti-choice legislators in states all across the country to continually chip away at abortion access, contraceptive coverage, and women’s equality at large,” Owens told Business Insider. “That’s part of a concerted effort that we’ve seen over the last 20 years, and unfortunately, it doesn’t show any signs of slowing down.”

Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality.

The National Right to Life Committee, one of the largest and oldest antiabortion organizations, prominently displays a quote from Kansas Governor Sam Brownback on its website that describes the apparent antiabortion game plan.

“The place you change America isn’t in Washington. It’s in the states,” Brownback said at the 2015 NRLC Convention. “That’s how we’ll change the life debate. It will be at the state level. Different states doing this, making very positive key changes until it can migrate to the federal level. And a court case can get up to the Supreme Court and Roe v. Wade be overturned, which will ultimately happen. We have to keep pushing at these state levels.”

Sue Swayze Liebel, the coordinator for the Susan B. Anthony List’s National Pro-life Women’s Caucus, told Business Insider that state legislatures have significant power to regulate abortion by writing laws to curtail the practice locally. The Caucus is a coalition of 150 female state legislators who oppose abortion and try to pass legislation restricting it in their 40 states. 

“Even though Roe v. Wade is the law of the land, there are some ways that Roe allows states to put some parameters around abortion,” Liebel told Business Insider. “The passion to protect life is growing. You’re seeing that in state regulations to pull back the abortion industry. … The power is in the states, and the passion is in the states, and it sort of bubbles up.”

The laws ‘eroding the foundation’

Abortion Clinics Per State 2014 BI Graphics

The state-level laws passed in 2016 and prior restrict abortion access from multiple angles. Among the most common tactics employed by antiabortion legislators and activists: 

  • 43 states have bans dictating how late into pregnancy women can get abortions. (The 20-week ban is the Susan B. Anthony List’s top legislative priority, and it has become law in 16 states so far.)
  • 25 states have Targeted Restrictions on Abortion Providers —or TRAP — laws imposing strict requirements on abortion clinics and providers. The standards are frequently so strict that clinics often can’t afford the changes and close.
  • 17 states have counseling laws that require doctors to give patients misleading or inaccurate information about the procedures.
  • 27 states have waiting periods laws that force women to visit a provider multiple times before getting an abortion (a difficult obstacle when considering how far some people have to travel to a clinic).

The laws have had a deleterious effect on abortion access in the affected states. Nationwide, the number of abortion clinics have fallen to 788 in 2014, down from 839 in 2011, according to the Guttmacher Institute.

Texas has seen the largest drop in the US, which many have attributed to a TRAP law passed in 2013. After the law was passed, researchers found that the number of clinics providing abortions in the state dropped in half, from 41 to 22 by November 2013 — increasing the number of women who lived over 50 miles from a clinic in Texas from 1.2 million to 4.2 million.

In June 2016, the Supreme Court ruled in a 5-3 decision that the law “provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so.”

Dawn Johnsen, a constitutional scholar from Indiana University and the legal director of NARAL from 1988 to 1993, said the Texas case showed how “chipping away” at Roe’s guarantees wasn’t the right metaphor to explain what was really happening on the ground.

“It’s more like you’re taking a sledgehammer when you’re closing three-quarters of the clinics,” she told Business Insider. “People often say chipping away, but I think it’s more like eroding the foundation, or hollowing it out.”

abortion ultrasound clinic doctor

While a creeping majority of states have passed TRAP laws, several continue to propose or pass what abortion activists consider especially egregious pieces of legislation.

In Oklahoma, for example, lawmakers are advancing a bill that would require the father’s permission for a woman to get an abortion. Non-invasive paternity tests are available after eight weeks into pregnancy.

Last year, Texas, Louisiana, and Indiana passed laws requiring women pay to bury or cremate fetal remains (often smaller than a pea pod) following abortions, which estimates suggest could cost upwards of $400.

Federal judges have blocked the laws in all three states, but they remain laws in Arkansas and North Carolina.

And the Ohio legislature passed a bill in 2016 that would ban abortions after the fetal heartbeat is detected, which can be as early as six weeks into pregnancy. Most women don’t know they’re pregnant until four to seven weeks. Gov. John Kasich vetoed that bill the same day he passed a 20-week ban in the state.

‘Recipe for a public health crisis’

While the GOP won sweeping control of the national government in the 2016 election, the party also has a trifecta of control in 24 state governments.

Furthermore, Trump is poised to appoint more federal judges than any first-term president in 40 years, and has said he intends to choose judges with the goal of overturning Roe.

While Roe v. Wade remains on “solid ground” because the Supreme Court still has a majority supporting it, Stephanie Toti, a senior counsel at the Center for Reproductive Rights, told Business Insider politicians can still “do a lot of damage.”

Those kinds of restrictive policies have a hugely disproportionate impact on poor women, immigrant women, women of color, and women in rural areas.

Toti pointed to the GOP’s proposed defunding of Planned Parenthood, which was included the GOP bill to repeal and replace the Affordable Care Act, and a codification of the Hyde Amendment, which prevents women from using federal funds to pay for abortions.

“Policies like that contribute to a real gap between the rights that women have in theory, on paper, and the rights that women are actually able to exercise in practice,” Toti told Business Insider. “Those kinds of restrictive policies have a hugely disproportionate impact on poor women, immigrant women, women of color, and women in rural areas who already face numerous obstacles in accessing safe abortion care.”

Activists aren’t worried about just abortion rights either, but the full gamut of reproductive health care.

The ACA, more commonly known as Obamacare, allows women to get birth control of their choice at no extra cost; insurance covers all 18 methods approved by the FDA. Some Republicans, including Trump’s Secretary of Health and Human Services Dr. Tom Price, want to revoke that coverage.

“If you take that away, that means that more women are going to be facing unintended pregnancies,” Toti said. “When you think about combining that with reduced access to safe abortion care, it’s just a recipe for disaster. It’s a recipe for a public health crisis.”

‘This is winning’

abortion women's march trump

While Pew Research Center polls have found that 59% of US adults today support keeping abortion legal in all or most cases, there is a clear partisan divide. 79% of Democrats support its legality, while only 37% of Republicans do. Independents are more in the middle, but still support the right at 60%.

Groups like NARAL, the American Civil Liberties Union, Planned Parenthood, and the Center for Reproductive Rights are all trying to harness the energy and anger displayed at the Women’s March on Washington, Owens said, and turn it into concrete action at the local, state, and national levels.

“I think we’re gonna lose a lot of these fights, and it’s gonna be painful,” he said. “But that doesn’t mean that we won’t fight it. That doesn’t mean there isn’t a lot of enthusiasm to fight it. That doesn’t mean that we lose by fighting it.”

At the the 44th annual March for Life rally in Washington, DC in January, Vice President Mike Pence declared that “life is winning again in America.” Liebel, the Susan B. Anthony caucus coordinator, said she couldn’t agree more.

“I have definitely seen that ring true at the state level. They have a saying that all politics is local. … What happens at the ballot box is what happens in the legislation that you see,” she said. “In my opinion, it reflects the opinion of the voters. This is our time. This is winning.”

SEE ALSO: The Trump-era Supreme Court could erode abortion access with a ‘death by 1,000 cuts’

DON’T MISS: The ‘Trumpcare’ plan to defund Planned Parenthood is about a lot more than abortions

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