Roe v. Wade at 36: Reproductive Justice Advocates Reflect on What Roe Does, and Doesn’t Do

Emily Douglas

On the 36th anniversary of Roe v. Wade, Rewire asked prominent reproductive justice writers and activists what Roe meant to them and the women they serve -- and why Roe is not enough to ensure all women have access to reproductive choice.

Thirty-six years ago, the Supreme Court decision that argued that a woman’s fundamental right to privacy included the right to decide to terminate a pregnancy. And yet in years since, the Court argued that this “right” existed for women even when women couldn’t make use of it — when abortion was too expensive, or the provider too far away. The Court refused to hold the government accountable for making abortion accessible to women. On this 36th anniversary of Roe, Rewire asked prominent reproductive justice writers and activists what Roe meant to them and the women they serve — and why Roe is not enough to ensure all women have access to reproductive choice.

Rewire: What is the significance of Roe to you and to the women you serve?

Miriam Perez, Senior Advocacy Associate at the National Latina Institute for Reproductive Health:

For the women we work with, many of whom come from
countries in Latin America where abortion is
still criminalized, Roe has the potential to have a huge impact on their lives.
Roe has the potential to make reproductive health services just like any other
healthcare need a woman has, it has the potential to make a usually clandestine
procedure safe and accessible. Unfortunately for them, the Roe decision has
been weakened and diluted by subsequent legislation. The Hyde Amendment, in
particular, has seriously stunted the potential of Roe. Because of these laws,
we have a long way to go for low-income and immigrant women to really feel the
full affects of this historic Supreme Court decision.

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Toni Bond Leonard, Board President, National Network of Abortion Funds:

As I think about Roe
on this 36th anniversary, I cannot help but reflect on the
stories I have heard from women who have been unable to realize the
constitutional protections it was created to afford all women.
For low-income women, women of color, Native American and indigenous
women, immigrant women, and young women, Roe is an unfilled promise.
Although Roe held that a woman may terminate her pregnancy for any reason
up until the point at which a fetus is viable, far too many women are
forced to do just the opposite. Roe was supposed to support
and affirm a woman’s constitutional right to privacy and human right
to be self-determining about her body. The landmark case that
was our answer and solution to back-alley abortions and far too many
lives being lost due to unsafe and illegal abortion has been forever
tainted by the Hyde Amendment passed in 1976. Roe gave women the
ability to literally save their own lives through empowering them to
make critical decisions about when to parent. Unfortunately, the
Hyde Amendment came along and robbed those women who lacked the economic
means of that right. Roe has been the proverbial carrot that has
been dangled before the eyes of poor women and cruelly yanked from them
through the Hyde Amendment. For poor women in grassroots communities
around this country, Roe has yet to be fully realized. It is a
constitutional right that sounds good in theory but still is not a reality
for the women who call member funds of the National Network of Abortion

Loretta J. Ross, National Coordinator, and Serena Garcia, Communications Coordinator, SisterSong Women of Color Reproductive Health Collective:

The decision and impact of Roe v. Wade has facilitated our ability to make healthy decisions about our bodies,
sexuality and reproduction for ourselves, our families and our communities in
all areas of our lives.

Aspen Baker, Executive Director, Exhale:

I was born on the third anniversary of Roe v Wade. I have grown up only knowing legal abortion and the war that surrounds it, which is something else I share in common with thousands of women and men who call Exhale’s post-abortion talkline every year looking for emotional support. That many of us know to be true is that despite its legality, abortion remains taboo, a big secret, something to hide rather than share. I see the anniversary of Roe as an opportunity to listen to the voices of those who have had legal abortions over the last 36 years and to learn from their experiences. They are the ones that can point us towards a better, more peaceful path for abortion in the US for the next 36 years.

Maria Luisa Sanchez Fuentes, executive director of the Grupo de Información en Reproducción Elegida (GIRE), or the Information Group on Reproductive Choice:

Legal abortion [obtained for women living in Mexico City nearly two years ago] has given women relief, confidence in public
hospitals, and the freedom to choose what is best for their lives. It has
reduced embarrassment and guilt. And it has made them more careful of
their sexual lives.

Rewire: Is Roe enough? What does our country need in addition to Roe to ensure reproductive justice for all women?

Miriam Perez:

Roe isn’t enough because privacy is not enough. That
narrow legal framework has only barely protected our legal right to access the
procedure. It says nothing about access, about funding, about autonomy and barriers.
It says nothing about justice. It has not addressed those who based on moral
and religious convictions try to limit the health care women can receive. It
has not addressed those who want women’s bodies to be manipulated in
service of a religious agenda and who want the fetus’s rights to be
placed about those of the mother. We need a lot more than a shaky legal
framework to stand on if we want to achieve reproductive justice.

Toni Bond Leonard:

Each day, when the phone
rings with a call from another woman in need of financial assistance
for a safe abortion, I am again reminded that Roe is not enough.
Is Roe enough? No, it is not enough to merely say that a woman
has a constitutional right to determine when and whether to have a child.
It is not enough when we live everyday with funding restrictions that
prohibit women from making life changing decisions about their bodies,
their lives. To realize true reproductive justice, women need
access to the full range of reproductive health care. That includes,
family planning, safe contraceptives, and safe abortion services.
Our country has to become a place that promotes a reproductive justice
agenda that creates and supports the conditions where women live in
homes and communities free from all forms of sexual and domestic violence.
Ours must become a country that sets an example for the rest of the
world of how women live free from all forms of sexual oppression.
To realize true reproductive justice, women must be entrusted to be
the true agents of their own lives afforded with the economic and social
supports to make the best decisions for themselves, their families,
and their communities. The reproductive justice framework is one
that promotes a holistic approach to creating a society where women
are healthy, have healthy families and live in healthy communities.
This means living in a country where citizens have jobs paying living
wages, safe and adequate housing, affordable health care, access to
safe, healthy foods, and sustainable and clean environments. True
reproductive justice means that women not only are able to make and
exercise decisions about having an abortion, but also have the social
and economic supports to raise and parent children. Women need
access to pre- and post-natal care, as well as support for the right
to play pivotal roles in decisions about labor and delivery experiences.
Women incarcerated must be afforded the right to receive abortion services
and have birthing experiences with dignity and not shackled down to
beds like animals. Parenting women with substance abuse problems
must receive social and economic assistance and support to not only
live substance free but have access to services and housing that support
them being fully functioning mothers enabled and empowered to raise
their children and not have them taken away to become a part of a failed
child welfare system. It is only when this country redresses these
and other problems will we be a country that has ended the sexual and
reproductive oppression of women and realized true reproductive justice.

Loretta Ross and Serena Garcia:

As activists, we have insisted that reproductive justice evolves
simultaneously as a theory, a strategy, and a practice. As a critical theory,
it incorporates an intersectional analysis based on the human rights framework
applied to reproductive politics.

When we conform, we lose sight of who we really are. By centering our
analysis on articulating what it would take to end the reproductive oppression
of women of color, we break out of the endless circularity of abortion debates
– pro or con – and seek a new understanding of our lived experiences.

Aspen Baker:

Roe, and the zero-sum/win-lose attitude that surrounds it, has defined the conversation about abortion for far too long. Yes, the legality of abortion is the crux of this war, but one of the ways out of war is to  xpand the conversation and raise new voices and perspectives on divisive issues. We can do this by addressing many important reproductive and sexual health issues that have not gotten the attention they need and deserve and by creating new ways to think and understand the role of abortion in all our lives. Right now, all of us are excited and overwhelmed not just by the promise and practice of unity over  partisanship, but by real-life examples of what can happen when you address people’s real needs and give them the opportunity to make change in their own lives and those of their communities. Let us learn from these lessons but most importantly, let us recognize, support, promote and help grow the efforts of those who are already doing it well and finding success, like Asian Communities for Reproductive Justice, California Latinas for Reproductive Justice, Gay-Straight Alliance Network and many others whose strategies have been under valued and under appreciated in an era defined by Roe. The truth is an experience with abortion is often just one part of a person’s story and its time we listened to the whole story, and responded and supported the whole person.

Roundups Politics

Campaign Week in Review: ‘If You Don’t Vote … You Are Trifling’

Ally Boguhn

The chair of the Democratic National Convention (DNC) this week blasted those who sit out on Election Day, and mothers who lost children to gun violence were given a platform at the party's convention.

The chair of the Democratic National Convention (DNC) this week blasted those who sit out on Election Day, and mothers who lost children to gun violence were given a platform at the party’s convention.

DNC Chair Marcia Fudge: “If You Don’t Vote, You Are Ungrateful, You Are Lazy, and You Are Trifling”

The chair of the 2016 Democratic National Convention, Rep. Marcia Fudge (D-OH), criticized those who choose to sit out the election while speaking on the final day of the convention.

“If you want a decent education for your children, you had better vote,” Fudge told the party’s women’s caucus, which had convened to discuss what is at stake for women and reproductive health and rights this election season.

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“If you want to make sure that hungry children are fed, you had better vote,” said Fudge. “If you want to be sure that all the women who survive solely on Social Security will not go into poverty immediately, you had better vote.”

“And if you don’t vote, let me tell you something, there is no excuse for you. If you don’t vote, you don’t count,” she said.

“So as I leave, I’m just going to say this to you. You tell them I said it, and I’m not hesitant about it. If you don’t vote, you are ungrateful, you are lazy, and you are trifling.”

The congresswoman’s website notes that she represents a state where some legislators have “attempted to suppress voting by certain populations” by pushing voting restrictions that “hit vulnerable communities the hardest.”

Ohio has recently made headlines for enacting changes that would make it harder to vote, including rolling back the state’s early voting period and purging its voter rolls of those who have not voted for six years.

Fudge, however, has worked to expand access to voting by co-sponsoring the federal Voting Rights Amendment Act, which would restore the protections of the Voting Rights Act that were stripped by the Supreme Court in Shelby County v. Holder.

“Mothers of the Movement” Take the National Spotlight

In July 2015, the Waller County Sheriff’s Office released a statement that 28-year-old Sandra Bland had been found dead in her jail cell that morning due to “what appears to be self-asphyxiation.” Though police attempted to paint the death a suicide, Bland’s family has denied that she would have ended her own life given that she had just secured a new job and had not displayed any suicidal tendencies.

Bland’s death sparked national outcry from activists who demanded an investigation, and inspired the hashtag #SayHerName to draw attention to the deaths of Black women who died at the hands of police.

Tuesday night at the DNC, Bland’s mother, Geneva Reed-Veal, and a group of other Black women who have lost children to gun violence, in police custody, or at the hands of police—the “Mothers of the Movement”—told the country why the deaths of their children should matter to voters. They offered their support to Democratic nominee Hillary Clinton during a speech at the convention.

“One year ago yesterday, I lived the worst nightmare anyone could imagine. I watched as my daughter was lowered into the ground in a coffin,” said Geneva Reed-Veal.

“Six other women have died in custody that same month: Kindra Chapman, Alexis McGovern, Sarah Lee Circle Bear, Raynette Turner, Ralkina Jones, and Joyce Curnell. So many of our children are gone, but they are not forgotten,” she continued. 

“You don’t stop being a mom when your child dies,” said Lucia McBath, the mother of Jordan Davis. “His life ended the day that he was shot and killed for playing loud music. But my job as his mother didn’t.” 

McBath said that though she had lost her son, she continued to work to protect his legacy. “We’re going to keep telling our children’s stories and we’re urging you to say their names,” she said. “And we’re also going to keep using our voices and our votes to support leaders, like Hillary Clinton, who will help us protect one another so that this club of heartbroken mothers stops growing.” 

Sybrina Fulton, the mother of Trayvon Martin, called herself “an unwilling participant in this movement,” noting that she “would not have signed up for this, [nor would] any other mother that’s standing here with me today.” 

“But I am here today for my son, Trayvon Martin, who is in heaven, and … his brother, Jahvaris Fulton, who is still here on Earth,” Fulton said. “I did not want this spotlight. But I will do everything I can to focus some of this light on the pain of a path out of the darkness.”

What Else We’re Reading

Renee Bracey Sherman explained in Glamour why Democratic vice presidential nominee Tim Kaine’s position on abortion scares her.

NARAL’s Ilyse Hogue told Cosmopolitan why she shared her abortion story on stage at the DNC.

Lilly Workneh, the Huffington Post’s Black Voices senior editor, explained how the DNC was “powered by a bevy of remarkable black women.”

Rebecca Traister wrote about how Clinton’s historic nomination puts the Democratic nominee “one step closer to making the impossible possible.”

Rewire attended a Democrats for Life of America event while in Philadelphia for the convention and fact-checked the group’s executive director.

A woman may have finally clinched the nomination for a major political party, but Judith Warner in Politico Magazine took on whether the “glass ceiling” has really been cracked for women in politics.

With Clinton’s nomination, “Dozens of other women across the country, in interviews at their offices or alongside their children, also said they felt on the cusp of a major, collective step forward,” reported Jodi Kantor for the New York Times.

According to Philly.com, Philadelphia’s Maternity Care Coalition staffed “eight curtained breast-feeding stalls on site [at the DNC], complete with comfy chairs, side tables, and electrical outlets.” Republicans reportedly offered similar accommodations at their convention the week before.

Analysis Law and Policy

After ‘Whole Woman’s Health’ Decision, Advocates Should Fight Ultrasound Laws With Science

Imani Gandy

A return to data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous "informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

Whole Woman’s Health v. Hellerstedt, the landmark U.S. Supreme Court ruling striking down two provisions of Texas’ omnibus anti-abortion law, has changed the reproductive rights landscape in ways that will reverberate in courts around the country for years to come. It is no longer acceptable—at least in theory—for a state to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.

In an opinion driven by science and data, Justice Stephen Breyer, writing for the majority in Whole Woman’s Health, weighed the costs and benefits of the two provisions of HB 2 at issue—the admitting privileges and ambulatory surgical center (ASC) requirements—and found them wanting. Texas had breezed through the Fifth Circuit without facing any real pushback on its manufactured claims that the two provisions advanced women’s health. Finally, Justice Breyer whipped out his figurative calculator and determined that those claims didn’t add up. For starters, Texas admitted that it didn’t know of a single instance where the admitting privileges requirement would have helped a woman get better treatment. And as for Texas’ claim that abortion should be performed in an ASC, Breyer pointed out that the state did not require the same of its midwifery clinics, and that childbirth is 14 times more likely to result in death.

So now, as Justice Ruth Bader Ginsburg pointed out in the case’s concurring opinion, laws that “‘do little or nothing for health, but rather strew impediments to abortion’ cannot survive judicial inspection.” In other words, if a state says a restriction promotes women’s health and safety, that state will now have to prove it to the courts.

With this success under our belts, a similar return to science and data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous “informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

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In Planned Parenthood v. Casey, the U.S. Supreme Court upheld parts of Pennsylvania’s “informed consent” law requiring abortion patients to receive a pamphlet developed by the state department of health, finding that it did not constitute an “undue burden” on the constitutional right to abortion. The basis? Protecting women’s mental health: “[I]n an attempt to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”

Texas took up Casey’s informed consent mantle and ran with it. In 2011, the legislature passed a law that forces patients to undergo a medical exam, whether or not their doctor thinks they need it, and that forces them to listen to information that the state wants them to hear, whether or not their doctor thinks that they need to hear it. The purpose of this law—at least in theory—is, again, to protect patients’ “mental health” by dissuading those who may be unsure about procedure.

The ultra-conservative Fifth Circuit Court of Appeals upheld the law in 2012, in Texas Medical Providers v. Lakey.

And make no mistake: The exam the law requires is invasive, and in some cases, cruelly so. As Beverly McPhail pointed out in the Houston Chronicle in 2011, transvaginal probes will often be necessary to comply with the law up to 10 to 12 weeks of pregnancy—which is when, according to the Guttmacher Institute, 91 percent of abortions take place. “Because the fetus is so small at this stage, traditional ultrasounds performed through the abdominal wall, ‘jelly on the belly,’ often cannot produce a clear image,” McPhail noted.

Instead, a “probe is inserted into the vagina, sending sound waves to reflect off body structures to produce an image of the fetus. Under this new law, a woman’s vagina will be penetrated without an opportunity for her to refuse due to coercion from the so-called ‘public servants’ who passed and signed this bill into law,” McPhail concluded.

There’s a reason why abortion advocates began decrying these laws as “rape by the state.”

If Texas legislators are concerned about the mental health of their citizens, particularly those who may have been the victims of sexual assault—or any woman who does not want a wand forcibly shoved into her body for no medical reason—they have a funny way of showing it.

They don’t seem terribly concerned about the well-being of the woman who wants desperately to be a mother but who decides to terminate a pregnancy that doctors tell her is not viable. Certainly, forcing that woman to undergo the painful experience of having an ultrasound image described to her—which the law mandates for the vast majority of patients—could be psychologically devastating.

But maybe Texas legislators don’t care that forcing a foreign object into a person’s body is the ultimate undue burden.

After all, if foisting ultrasounds onto women who have decided to terminate a pregnancy saves even one woman from a lifetime of “devastating psychologically damaging consequences,” then it will all have been worth it, right? Liberty and bodily autonomy be damned.

But what if there’s very little risk that a woman who gets an abortion experiences those “devastating psychological consequences”?

What if the information often provided by states in connection with their “informed consent” protocol does not actually lead to consent that is more informed, either because the information offered is outdated, biased, false, or flatly unnecessary given a particular pregnant person’s circumstance? Texas’ latest edition of its “Woman’s Right to Know” pamphlet, for example, contains even more false information than prior versions, including the medically disproven claim that fetuses can feel pain at 20 weeks gestation.

What if studies show—as they have since the American Psychological Association first conducted one to that effect in 1989—that abortion doesn’t increase the risk of mental health issues?

If the purpose of informed consent laws is to weed out women who have been coerced or who haven’t thought it through, then that purpose collapses if women who get abortions are, by and large, perfectly happy with their decision.

And that’s exactly what research has shown.

Scientific studies indicate that the vast majority of women don’t regret their abortions, and therefore are not devastated psychologically. They don’t fall into drug and alcohol addiction or attempt to kill themselves. But that hasn’t kept anti-choice activists from claiming otherwise.

It’s simply not true that abortion sends mentally healthy patients over the edge. In a study report released in 2008, the APA found that the strongest predictor of post-abortion mental health was prior mental health. In other words, if you’re already suffering from mental health issues before getting an abortion, you’re likely to suffer mental health issues afterward. But the studies most frequently cited in courts around the country prove, at best, an association between mental illness and abortion. When the studies controlled for “prior mental health and violence experience,” “no significant relation was found between abortion history and anxiety disorders.”

But what about forced ultrasound laws, specifically?

Science has its part to play in dismantling those, too.

If Whole Woman’s Health requires the weighing of costs and benefits to ensure that there’s a connection between the claimed purpose of an abortion restriction and the law’s effect, then laws that require a woman to get an ultrasound and to hear a description of it certainly fail that cost-benefit analysis. Science tells us forcing patients to view ultrasound images (as opposed to simply offering the opportunity for a woman to view ultrasound images) in order to give them “information” doesn’t dissuade them from having abortions.

Dr. Jen Gunter made this point in a blog post years ago: One 2009 study found that when given the option to view an ultrasound, nearly 73 percent of women chose to view the ultrasound image, and of those who chose to view it, 85 percent of women felt that it was a positive experience. And here’s the kicker: Not a single woman changed her mind about having an abortion.

Again, if women who choose to see ultrasounds don’t change their minds about getting an abortion, a law mandating that ultrasound in order to dissuade at least some women is, at best, useless. At worst, it’s yet another hurdle patients must leap to get care.

And what of the mandatory waiting period? Texas law requires a 24-hour waiting period—and the Court in Casey upheld a 24-hour waiting period—but states like Louisiana and Florida are increasing the waiting period to 72 hours.

There’s no evidence that forcing women into longer waiting periods has a measurable effect on a woman’s decision to get an abortion. One study conducted in Utah found that 86 percent of women had chosen to get the abortion after the waiting period was over. Eight percent of women chose not to get the abortion, but the most common reason given was that they were already conflicted about abortion in the first place. The author of that study recommended that clinics explore options with women seeking abortion and offer additional counseling to the small percentage of women who are conflicted about it, rather than states imposing a burdensome waiting period.

The bottom line is that the majority of women who choose abortion make up their minds and go through with it, irrespective of the many roadblocks placed in their way by overzealous state governments. And we know that those who cannot overcome those roadblocks—for financial or other reasons—are the ones who experience actual negative effects. As we saw in Whole Woman’s Health, those kinds of studies, when admitted as evidence in the court record, can be critical in striking restrictions down.

Of course, the Supreme Court has not always expressed an affinity for scientific data, as Justice Anthony Kennedy demonstrated in Gonzales v. Carhart, when he announced that “some women come to regret their choice to abort the infant life they once created and sustained,” even though he admitted there was “no reliable data to measure the phenomenon.” It was under Gonzales that so many legislators felt equipped to pass laws backed up by no legitimate scientific evidence in the first place.

Whole Woman’s Health offers reproductive rights advocates an opportunity to revisit a host of anti-choice restrictions that states claim are intended to advance one interest or another—whether it’s the state’s interest in fetal life or the state’s purported interest in the psychological well-being of its citizens. But if the laws don’t have their intended effects, and if they simply throw up obstacles in front of people seeking abortion, then perhaps, Whole Woman’s Health and its focus on scientific data will be the death knell of these laws too.