The Fall of Roe Is For All Of Us

Feature image art: Autostraddle, photo: Alex Wong/Getty Image

I was buying a vegan chickn wrap at a walk-up eatery near Syracuse University in 2006 when the cashier said, “I like your shirt!” The shirt was a black fitted tee with bright pink graphic lettering that read, “SAVE ROE!”

I was a professional campus organizer for a local affiliate of Planned Parenthood, and barely out of college myself. This was before the federal abortion ban and way before the current case before the Supreme Court and my work was primarily around expanding and protecting access to contraception.

Abortion bans and hostile restrictions were constantly on and off the table at the federal level, and there was a definite sense of anti-abortion extremists trying to chip away at the protections of the Roe v. Wade decision, but the idea that Roe would actually be overturned felt distant and vague and hyperbolic to a 23-year-old who had grown up in a post-Roe generation. I wore the shirt as a reminder to others of how important and how often fragile abortion rights were overall, not as a serious warning that Roe v. Wade might be gone in my lifetime.

Fast forward to Monday night, when I was checking slack for Met Gala hot takes after putting my five-year-old daughter, Remi, to bed and saw that my workplace chat was blowing up. Those of us closely following the Dobbs v. Jackson Women’s Health Organization (JWHO) case have known for months now that it’s extremely likely we’re on the precipice of the Supreme Court of the United States (SCOTUS) overturning Roe v. Wade. Abortion rights groups and repro justice groups and health providers and abortion funds have been planning and strategizing how to respond when that decision comes down later this year — likely in late June or early July. Working on everything from policy reform to creating community-based pathways to legal abortion when it becomes outlawed in almost half of the US.

Still, it felt like there was some bit of hope or at the very least, that it wasn’t yet a concrete reality yet, like maybe we could salvage something. In other words, the fact that SCOTUS was hearing this case meant they were open to reopening the decision on abortion, which was extremely alarming, but we were holding out hope that it was possible they wouldn’t fully outlaw abortion. We are still holding out hope — this isn’t over yet! But we need to move as if Roe is truly in peril, because it is.

On Monday night, a draft of Justice Samuel Alito’s majority opinion on the JWHO case was leaked to the press and it is… in a word… terrible. Terrible for abortion rights and access. Terrible for queer and trans people. Terrible for Black and brown people. Terrible for disabled people. Terrible for rural poor people. Terrible for Indigenous people. Terrible for immigrants without papers. Terrible. Terrible for all of us.

For the first time in my life, I’m absolutely certain that the conservative right is going to do everything they can to strip away the protections of the landmark Roe case. They’ve been trying to for decades, since Roe became the law of the land in 1973. That’s not new. But this is the first time I believe they may have the political power to do so, despite the fact that the majority of people in the U.S. regardless of which political party they belong to are supportive of legal abortion.

There’s a lot of confusion going around about what this all means and as someone who worked in repro and/or civil liberties work for over fifteen years, I’m here to demystify the moment we’re in right now. I’m not an attorney, but I used to play one on TV, so let me fill you in on what’s going on and what the potential end of Roe means for us.


Is abortion still legal?

Yes, abortion is still legal! Very much so. Despite some misleading headlines, SCOTUS has not voted on Dobbs v. JWHO yet.

The leaked opinion shows a clear intention for the currently presiding conservative majority to vote to overturn Roe, but it hasn’t actually happened yet. In fact, if you or anyone needs an abortion, you can find a provider at ineedanA.com or by texting “hello” to 202 883 4620.


Will abortion be legal if Roe is overturned?

Even if the JWHO vote happens and it results in a full repeal of federal abortion rights, some states will still have safe, legal abortion. Some states have trigger laws, state laws already on the books that ban or restrict abortion in the state. As long as Roe is standing, the federal protections for abortion mean that the state laws that conflict with Roe can’t be constitutionally enforced. If Roe is no longer the law and there is not sufficient federal law (which there currently isn’t), abortion bans or restrictions in those states will be able to go into effect and possibly be expanded. From the Guttmacher Institute:

“If Roe were overturned or fundamentally weakened, 22 states have laws or constitutional amendments already in place that would make them certain to attempt to ban abortion as quickly as possible. Anti-abortion policymakers in several of these states have also indicated that they will introduce legislation modeled after the Texas six-week abortion ban.

By the time the Supreme Court hears oral arguments in the Mississippi case, there will be nine states in this group with an abortion ban still on the books from before Roe v. Wade, 13 states with a trigger ban tied to Roe being overturned, five states with a near-total abortion ban enacted after Roe, 11 states with a six-week ban that is not in effect and one state (Texas) with a six-week ban that is in effect, one state with an eight-week ban that is not in effect and four states whose constitutions specifically bar a right to abortion. Some states have multiple types of bans in place.”


Why is this leaked opinion important?

The SCOTUS justices, while holding an appointed position and not an elected one, tend to correspond along Republican and Democratic lines, based on the party under which each justice is appointed. We tend to think of justices as either conservative, liberal, or moderate based on their voting records and backgrounds. Right now, three of the nine judges are decidedly conservative, and three are decidedly liberal. There are technically four moderates, but they were all appointed under a Republican administration.

There is and was some hope that the more moderate judges wouldn’t vote for a full repeal of Roe v. Wade, as there’s a possible outcome here that the vote is split on the question of a radical move like a full repeal. Instead, the decision could be made to more narrowly rule on the Mississippi law in question in the Dobbs v. JWHO case, likely voting to uphold the Mississippi law limiting abortion to fifteen weeks.

However, in the recent Texas case, which effectively eliminated abortion in Texas by criminalizing abortions after six weeks, Justice John Roberts voted with the liberal judges. Roberts is no pro-choice champion, to be clear and he has voted against abortion rights in the past. He represents a view that more strictly interprets the role of SCOTUS to not move quickly to divisive rulings or rulings that interfere with established precedent. He is also the chief justice, but other more moderate judges did not join him in taking a moderate approach on abortion in the recent Texas case, thus upholding Texas’ SB8 in a 5-4 vote. Two justices considered moderate (not in my opinion, but in general opinion), Kavanaugh and Barret, have both expressed an interest in overturning Roe, which means moving towards the middle to join Roberts seems unlikely.

So we come to a place of assuming Justice Alito, who is deeply conservative, is representing the majority opinion because we’ve been anticipating for quite a while that this court is hostile to abortion rights. The opinion itself is damning, not just for the end of Roe v. Wade, but the right to privacy established by several landmark SCOTUS cases including Roe v. Wade. It’s true that drafts of the majority and minority opinions are often worked on before the decision day, especially when it’s known or assumed what the outcome of the vote will be, so it’s possible this isn’t final. It has been confirmed as authentic, though, and it gives us a lot to worry about.


What are we worried about?

So many things. If we lose Roe, abortion will be banned in many states, making it much harder to access safe and legal abortions. People will need to travel thousands of miles depending on where they live. Many will be unable to afford that, and criminalizing abortion doesn’t mean abortions won’t happen. Abortion rates are not slowed when abortion is not legally available. Historically, we know that pregnant people will seek abortions regardless, but what should be an extremely safe and routine procedure becomes deadly when it’s criminalized. And those more impacted will be poor folks, Black and Latinx folks, young people, immigrants, and anyone without financial means to get on a plane and fly out to where abortions are still safe. Already, material mortality rates are significantly higher in states that have restrictions on abortion.

Beyond that, Roe v. Wade and reproductive rights, in general, are directly tied to establishing the constitutional right to privacy. That right is not enshrined in writing in the Constitution. It’s been established through legal precedents, like Griswold v. Connecticut, the case that first legalized birth control specifically for married couples in 1965, which established that there are “zones of privacy” inherent in the Constitution. Other repro cases like Eisenstadt v. Baird in 1972 and Roe v. Wade in 1973 expanded on this idea of privacy from government intrusion, eventually extending that right to the individual. In the case of Roe, it created a specific link between the due process clause of the Constitution and the right to privacy.

The landmark LGBTQ case, Lawrence v. Texas, which overturned homophobic anti-sodomy laws in 2003, directly quoted Roe and other repro cases to make the argument that the government should not interfere in consensual, adult sexual behavior in the home. Privacy rights again came into play in Obergefell v. Hodges, the 2015 SCOTUS ruling that legalized marriage across the US. We should be worried about this and more. Forced sterilization laws, interracial marriage, access to contraception, rights of sexual assault survivors, rights of sex workers, are all things on the table if Roe is overturned.

That said, the jumping from what is happening now to, “They’re coming for gay marriage next!” is not rooted in a real threat, today, right now, and also inherently implies that the current issue before SCOTUS is not an LGBTQ issue. It absolutely is.


Why does this matter for queer and trans people, in particular?

Queer and trans people have abortions, for any number of reasons. We and our partners have abortions and are too often facing double stigma, stigma and shame around receiving abortion care and stigma (unfortunately often by service providers) for being trans and/or queer. Abortion is not a “women’s issue” and it’s not a cisgender heterosexual issue. It’s our issue and it affects our communities and it’s deeply under threat. We have to act, not just because we are afraid of losing other rights in the future, but because this is about us and our people, right now. If our feminism is intersectional and if our belief is that our community matters, we need to see abortion as a queer issue and trans issue right now.

Ultimately, controlling reproductive choice is about controlling people’s bodies. Controlling “unruly” or “unfit” bodies is about upholding white supremacist patriarchy and capitalism. The right has an interest in promoting “traditional family values” as a way to enforce a capitalist system of labor. In other words, capitalism and white supremacy and patriarchy benefit from keeping men at work producing profit for owners and women at home producing children (a.k.a. more workers and wives). Demanding control of anyone whose body doesn’t fit into that narrow narrative or who doesn’t produce the desired value for the economy, whether that is Black and Indigenous people’s bodies, disabled bodies, queer and trans bodies, is not just sexist, racist, and ableist. It’s heteronormative and cisnormative. And all of it bottom-line holds up a capitalist system that only works if we subjugate pregnant people and anyone whose body is not participating in the “correct way” of producing for those in systemic power.

This isn’t theoretical jargon, it’s real. Trans bodies are under attack in state legislatures all over the country right now, powered by the same party and the same extremists that would delight in seeing abortion criminalized. During the long fight for marriage, time and again the main argument against it was that gay couples would be unfit parents (false) or that we could not biologically reproduce (also false) which was declared the basis of a good “traditional” marriage. The forced sterilization of Black women and Indigenous women and disabled women, a eugenics-rooted history that is far too recent and frequent, is absolutely about white people in power deciding whose bodies are best for reproduction to uphold white supremacy (which is, deeply, inherently ableist). We have shared enemies not because all so-called progressive issues are linked, but because we literally have the same enemies. And they are actively trying to control our bodies in a relentless aim to eradicate any deviation from a white supremacist cishet patriarchal society fueled by capitalism. Whew.

All that to say, this matters, not because we might lose marriage in the future, though I do also believe that’s a valid concern, but because this is about us, right damn now, and our people and loved ones. Our bodies are already under attack. Our people are already being harmed.

Abortion access and abortion rights are already a trans rights issue and a queer rights issue. We need to fight like hell, not “for them,” but “for us.”


Is there any way to stop this?

Kind of. There are possible remedies and, frankly, we have to pursue all of them ferociously. One option is that we pressure the Senate to pass the Women’s Health Protection Act, which would create an affirmative federal law codifying abortion rights. However, the Senate doesn’t have the necessary sixty votes to pass this bill, which has already passed the House of Representatives. And to change that, we would need to change the filibuster rules. That’s a real possibility, but we need to move fast and pressure our Senators to make it a reality quickly.

There is the possibility, always, of organizing and making our voices so loud that we can’t be ignored. It’s already true that the majority of Americans don’t want to see Roe v. Wade overturned. We need to show that power with our voices and our bodies. Already, there has been an enormous amount of public support for Roe and outrage about the leaked Alito opinion. Just hours after it was leaked, people were gathered in Washington, D.C. outside of the Supreme Court, and the steps of the court were packed all day on Tuesday. Around the US, marches and rallies are being organized as people everywhere go into the street to demand our rights. People power is one way we show, visibly and emphatically, that the vocal majority don’t agree with Justice Alito and the conservative court and that this is not the time to undo historic precedent by overturning Roe. The SCOTUS vote hasn’t happened yet and this is our opening to keep the pressure on those in power.


What can I do?

So many things!

  • Donate to abortion funds — abortion funds help people pay for fees, transportation, hotel, and other personal expenses in order to access abortion.
  • Ensure people know that abortion is still legal. Share and access INeedAnA.com, a resource to find vetted, up to date, and personalized info on how to get an abortion. You can also or text ‘hello’ to 202 883 4620 to get info.
  • Join or organize national Bans Off Our Body actions across the country on May 14th.
  • Share abortion stories. Share abortion access info. Share calls to action. Educate others! The Liberate Abortion Campaign has some great free graphics for social sharing.
  • Wherever you are, contact your local abortion rights orgs to find out more about how to get involved.
  • Do community care where you can. Check in with your loved ones and friends. Ask for what you need and give what you have as we collectively cycle through grief, anger, or any other very appropriate emotion.

This fight is far from over. Let’s take care of ourselves and each other, and know we will move forward from here taking care of our own, no matter what.

Have more info or resources to share or more questions to ask? Post them in the comments.


This! This article you just read wouldn't be possible without support from readers like you. In fact, we wouldn't be here AT ALL without reader support. We keep Autostraddle majority free-to-read, but it isn't free to create! We need YOU to sign up for A+ to help keep this indie queer media site funded. A+ membership starts at just $4/month or $30/year. If you can, will you join?

Join A+

KaeLyn

KaeLyn is a 39-year-old (femme)nist activist, word nerd, and queer mama. You can typically find her binge-watching TV, standing somewhere with a mic or a sign in her hand, over-caffeinating herself, or just generally doing too many things at once. She lives in Rochester, NY with her spouse, a baby T. rex, a xenophobic cat, and a rascally rabbit. You can buy her debut book, Girls Resist! A Guide to Activism, Leadership, and Starting a Revolution if you want to, if you feel like it, if that's a thing that interests you or whatever.

KaeLyn has written 229 articles for us.

21 Comments

  1. I have to wonder if the leak happened because the conservative justices wanted to know what the reaction would be. They said they weren’t affected by popular opinion, but I don’t believe that for a minute. As it is, they have time to gauge the response and still walk the decision back. This means we have time to make them understand that we have time to show them we will fight.
    See you on the barricades.

    • There’s no way to know. I think it’s highly likely it was an intentional move by Alito’s camp to ensure they have the votes to overturn Roe and dissuade any of the other moderate conservatives from joining Roberts, or a way to try to move Roberts further right.

      Regardless, the focus has to be on the harm and not the leak. I agree it’s an opportunity for us, too, to know what is coming and trying to fight back with the time we have. More people are certainly paying attention now!

  2. Can an American please explain to me why Biden said he wouldn’t try to change the filibuster thingy, since as far as I can tell, that’s the only real way to stop this. Can anyone explain why he’d rather sit back rather than defend something that most people in his party believe in?

    Am I missing something? (Probably)

        • Yeah, those are the two. Sinema and Manchin. Biden doesn’t have any power to compel them, but he certainly could spend a lot more time focusing on the issue and their obstructionism. Schumer (head of the Democrats in the Senate) and his leadership team are also partly responsible for not applying more pressure or finding suitable incentives.

          • Yup, agreed across the board, Mairi.

            And yes, it’s Sinema and Manchin and so-called pro-choice Republican Susan Collins isn’t helping either. Literally.

        • He can’t compel them.

          The issue with pressuring them too hard is that Manchin specifically is an odd one – he represents a state that is *extremely* republican, and his politics are not aligned with the Democratic Party.

          There is an implied threat to everything that he does that if the democrats annoy him he’ll switch parties – which would flip control of the senate to the republicans and completely eliminate Biden’s ability to make political appointments/appoint judges.

          Nobody is willing to call Manchin’s bluff, because no-one can tell if he is bluffing or not. And losing the senate would be a complete disaster.

          TLDR: Manchin is weilding a credible threat to single-handedly give the republicans the senate in order to control the entire government and do his best to make Biden a 1 term president. Calling his bluff would give the republicans the government and also make Biden a 1 term president.

          The only solution anyone can come up with is to elect more senators so we’re not being controlled by the coal baron asshole from West Virginia.

          (As for Sinema – I’m not sure anyone quite knows what the duck is up with her. She won’t be re-elected as a democrat though – that’s for sure.)

          • And the people of Maine and Alaska probably have the most power to fix things on this specific topic – as they keep re-electing the “pro-choice” republicans Collins and Murkowski, who keep expressing “concern” and then voting to appoint forced birth judges anyways.

    • It’s actually Bob Casey of Ohio along with Manchin that are both ardent anti-Roe Democrats. (NBC did a piece on this a few days ago) In many ways the filibuster is a straw man in this issue. A senate vote would probably go down 52-48 against abortion rights even if the filibuster was broken. Maybe 51-49 depending on the wording, if very limited it might maybe win 51-50, but the left wouldn’t like how very limited it would be. As far as Manchin and Senema go, they know that eventually they will be in the minority again, possibly as soon as this fall, and don’t want federal laws to radically change as often as every two years, or programs they support disappear, depending on who has 50+1 votes. As far as Biden is concerned, an active primary fight against them is lose-lose, and neither have terms up this cycle anyway. If a further left candidate wins, they likely lose in the general election, esp in WVa. Remember Manchin’s political base is the Coal Miner Union, a group that doesn’t fell very cleanly into the general left/right divide of the larger country. If the incumbent survives, they have a major grudge and are way less likely to be helpful. The filibuster rule could be what saves state level abortion laws from a federal government ban in the future depending on the 2024 elections. Then you just need 41 pro choice senators to save further erosion.

    • If they get rid of the filibuster, and the GQP takes control of the Senate, they will also not need 60 votes to pass bills. And while this leak has fired up the left (for now, we’ll see what it’s like in 6 months when we get to the general election), getting rid of the filibuster would probably energize the right. With no filibuster, they would only need 2 more seats to have unstoppable power in the Senate.

      Granted, in Trump’s first year in office, they held the White House & Congress, and STILL couldn’t get rid of Obamacare. But I don’t really want Mitch McConnell in charge of a Senate with no filibuster. Before making a change like that, I think people really need to think about how it will affect the future, not just things that are happening right this second.

      • Ah, sorry, I’m talking about the so-called Partial Birth Abortion Ban Act, passed in 2003 and upheld by SCOTUS in 2007 in Gonzales v. Carhart. It was a huge blow to abortion rights, the biggest roll-back of legal abortion since Roe. Insiders called it the Federal Abortion Ban because “partial birth” is not a medical term, nor is it the name of the procedure(s) that it banned, nor is it an accurate description of what it most specifically banned, intact dilation and extraction, which is reserved for serious late term abortions where the life or health of the pregnant person is at risk. Gonzales v. Carhart upheld the federal abortion ban, which ultimately removed the health exception for when a doctor could ascertain it was legal to perform a typically medically necessary procedure.

        Anyway, we called it the federal abortion ban instead of the partial-birth abortion ban for obvious reasons. The misinformation about so-called “partial birth” was a real detriment to helping the public understand what that it was really about the health and life of a pregnant person.

        I forgot this was “inside baseball” talk! Thanks for asking.

Contribute to the conversation...

Yay! You've decided to leave a comment. That's fantastic. Please keep in mind that comments are moderated by the guidelines laid out in our comment policy. Let's have a personal and meaningful conversation and thanks for stopping by!