Since Roe v. Wade was decided in 1973, abortion has been a constitutionally protected right in the United States. The case was decided based on the right to privacy protected by the 14th amendment. The decision was regarded as a victory that meant unwanted or dangerous pregnancies didn’t have to result in potentially deadly illicit abortions or criminalization of those who terminate their pregnancies. Within the year, United States legislators put into motion a variety of amendments to limit federal and foreign funding of abortion and related services. These amendments kickstarted the ransacking of Roe’s protections, and have always underlined race and class disparities in abortion access.
Now, in 2018, U.S. Supreme Court Associate Justice Anthony Kennedy is retiring, and the panic spreading through the pro-choice populace around the United States is not unfounded. Despite his conservatism and his votes in his final terms regarding the Voting Rights Acts, racial gerrymandering in Texas, Trump’s travel ban and LGBT discrimination, Kennedy was useful to the pro-choice movement as a swing voter in the 1982 decision regarding Planned Parenthood v. Casey and 2017’s Whole Woman’s Health v. Hellerstedt.
So what does Kennedy’s retirement mean for abortion rights and Roe v. Wade? In short, it means the reality of nonwhite, poor and undocumented people regarding abortion will now become the reality of most in the United States. When Roe’s protections inevitably dwindle across the country, the circumstance will be dire for anyone who isn’t lucky enough to live in a state with abortion rights protections in the absence of Roe or who, because of finances or documentation status, can’t afford to travel out of state or country for abortion services, as many did in the late 1960’s and early 1970’s when New York state and England liberalized their abortion laws pre-Roe.
The expected chain of events for the next few years will play out much like the House Bill 2 proceedings did in Texas— only different. Now, anti-choice politicians will pass state legislation considered unconstitutional under Roe v. Wade. When pro-choice advocates deliver a legal counterpunch, the Supreme Court will no longer deem abortion restrictions as “undue burden” on those seeking the services- even if the provisions are medically unnecessary or cause clinic closures. And, per usual, the language used in the pieces of legislation will claim the health and well-being of women as their primary concern.
It is important to remember that Justice Kennedy voted to uphold previous state legislation that laid the groundwork to undermine Roe v. Wade. In the 1982 Planned Parenthood v. Casey decision, Kennedy voted along with Justices Sandra O’Connor and David Souter in a plurality opinion to uphold four of five provisions in the Abortion Control Act. The legislation in question was enacted by then-governor of Pennsylvania Bob Casey Sr. It’s worth noting that Casey Sr. was an anti-choice Democrat. The precedential Supreme Court decision set the stage for current state barriers to abortion access not only by creating the 24-hour waiting period and requiring parental consent for minors but, most importantly, by introducing the concept of the viability of the fetus to replace the trimester framework. The trimester framework outlined in Roe had previously disallowed any regulation of abortion in the first trimester, and the plurality opinion in Planned Parenthood v. Casey declared the state can indeed regulate abortions at any point in the pregnancy so long as the provisions do not impose “undue burden.”
Fast forward to 2013 and Texas Governor Rick Perry has signed into law House Bill 2, which ultimately caused the closure of more than half of clinics that provide abortions services in Texas. By 2014, conservatives were celebrating a decline in the number of reported abortions. In 2015, studies began to show an uptick in self-induced abortion and people traveling out of state for their abortions. By the time Justice Kennedy cast the swing vote in the 2016 Supreme Court decision declaring HB2’s provisions unconstitutional, the entire debacle hinged on the “undue burden” language of Planned Parenthood v. Casey.
In Texas, where it is certainly guaranteed that anti-choice legislation will continue rolling in, the situation has been dire even before this impending Supreme Court change. This is especially true in the Rio Grande Valley and any other border region where undocumented people are often trapped, with no means to travel freely and safely past checkpoints and access abortion services in cities or states to the north.
At Whole Woman’s Health McAllen, the last standing abortion provider in the RGV, surgical abortion procedures are performed up to 17.6 weeks. At some points during the HB2 proceedings, the clinic was forced to halt operations along with over a dozen other clinics and at other times allowed to stay open; the three hundred mile distance to the next clinic was considered an “undue burden.” This exception was not based on a concrete definition of burden but arbitrary decisions by federal judges and circuits. According to the Guttmacher Institute, abortion restrictions have always disproportionately affected nonwhite women in the United States; from 1972 to 1974, death from self-induced abortion occurred in nonwhite women at 12 times the rate as in white women. While Texas is not one of the states that have any pre-existing legislation triggered by the absence of Roe, there is no doubt that Texans can count on severe abortion restrictions.
Advocates of reproductive justice have always argued that the constitutional right to choose whether or not to continue a pregnancy is useless if access to safe abortion is restricted; anti-choice politicians and activists know this, too. To understand what it would look like to restrict and effectively criminalize abortion procedures to pursue what anti-choice conservatives dub a “culture of life,” one can look to the Central American nation of El Salvador where, in 1998, all abortions, for any reason, were outlawed and thus criminalized. The human rights implications of such strict laws are staggering; a report by the Center for Reproductive Rights shows that women who arrive in emergency rooms hemorrhaging are immediately regarded as criminals, and as a result, many women die because they refuse to seek medical attention for fear of incarceration. Despite this, 246,275 abortions occurred between 1995 and 2000, and 11.1% of them resulted in death. In the United States, 59% of those who get abortions are already parents- that is, people who would leave behind their families if they died or were incarcerated because of criminalized abortion. According to the same report, in El Salvador, suicide of pregnant women accounts for a devastating third of maternal deaths. Human rights advocates link this suicide rate to high rates of unprosecuted sexual assault and the resulting pregnancies.
In the United States, a nation where seven in 1000 reported rape incidents end in prosecution, details have emerged about sexual abuse at immigrant detention centers, and in the fields where farmworkers make their livings. These populations are not only the most vulnerable to human rights violations, but they are also the first and most directly hit by legislation regarding reproductive health. This reality in the Rio Grande Valley, coupled with elements like the removal of Title IX guidance for sexual assault on campuses, abortion rights at stake, and the withdrawal from the United Nations Human Rights Council, seems poised to cultivate a so-called “culture of life.”