Analysis Abortion

What Would Change If ‘Roe’ Were Overturned?

Jessica Mason Pieklo

Forty-two years after the Supreme Court's historic decision affirming a woman's right to choose an abortion, access to reproductive health care remains out of reach for a majority of Americans.

Read more stories commemorating the 42nd anniversary of Roe v. Wade here.

Anti-choice activists have never hid the fact that they want Roe v. Wade overturned. Now, 42 years after that landmark decision, with legal challenges to pre-viability abortion bans from states like North Dakota and Arkansas circulating in the federal courts, Republicans in Congress intent on passing similar federal restrictions, and an anti-choice majority on the Supreme Court, their wish has never been more likely to come true. That’s a terrifying thought, yes, but can we honestly say we’d notice?

If Roe were overturned and states suddenly had the power to re-criminalize abortion, would clinics be forced to close overnight? If the implementation of HB 2 in Texas is any indication, that answer is yes, at least in many parts of the country. States like Louisiana, Mississippi, North Dakota, and South Dakota already have laws on the books that would automatically criminalize abortion should the decision be overturned. Meanwhile, 11 other states, including Arkansas and Wisconsin, have pre-Roe laws criminalizing abortion that are still technically in effect and could be resuscitated following a reversal. 

Would women face prosecution for stillbirths? Well, jury selection begins this week in the case of Purvi Patel, an Indiana woman facing contradictory felony charges of neglect of a dependent and feticide after Patel admitted to hospital staff that she’d delivered a fetus she believed to be stillborn. So that’s already happening.

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In fact, it’s hard to think of one of the many nightmare scenarios of what life would be like in a post-Roe world that isn’t already taking place somewhere in this country. As of 2013, according to the Guttmacher Institute, more than half of the states qualify as “hostile” to abortion rights, meaning they have at least four reproductive health-care restrictions on the books. Meanwhile, a federal appeals court is currently giving serious consideration to the argument that fetal viability begins at conception, because during in vitro fertilization a fertilized egg can “survive” on its own for a few days prior to implantation.

It’s worth noting that if the federal appeals court buys that argument, it would set the stage for the Supreme Court to revisit Roe v. Wade—and possibly reverse it for good.

“Respect for human life finds an ultimate expression in the bond of love the mother has for her child,” wrote Justice Anthony Kennedy in Gonzales v. Carhart, the 2007 Roberts Court decision that upheld the federal ban on “partial birth abortions” by granting lawmakers the latitude to “pick sides” on matters that they determine to be in “scientific dispute,” like when a fetus can feel pain or if abortions cause cancer.

“While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained,” Kennedy wrote.

Forty-two years after Roe v. Wade, it’s Justice Kennedy’s infamous “abortion-regret” passage from Gonzales that perfectly sums up the state of abortion rights jurisprudence in the federal courts today. Instead of decisions grounded in science and fact, the courts continue to reinforce motherhood as some mystical state of being—a “phenomenon,” to borrow Justice Kennedy’s words, that defies measurability by “reliable data.”

In other words, celebrating the anniversary of Roe v. Wade is tricky business. Before Roe, 30 states criminalized abortion outright while others, like Washington and New York, had much more liberal access to abortion servicesOn the one hand, the decision remains a historic recognition of the fundamental legal autonomy of women and the limits on state power to regulate our most private areas of life. On the other, abortion-rights advocates today face a largely hostile and conservative federal judiciary, which appears more willing than ever to roll back all historic civil rights achievements, including reproductive rights.

The abortion-rights landscape is an ever-shrinking map of concentrated access in urban centers and “blue” states. Thanks to the Hyde Amendment, poverty remains a primary indicator of who can and cannot access abortion care in this country. And thanks to decades of targeted campaigns by anti-abortion radicals who disguise themselves as soft-spoken grannies looking to counsel lost, wayward patients, providers must navigate increasingly treacherous waters just to do their jobs.

When I look at the myriad efforts by anti-choice advocates to undermine abortion rights—everything from “personhood” measures dressed up as so-called heartbeat bans, to restrictions on medication abortions that jail women like Jennifer Whalen, to attacks on family planning services and contraception access—I no longer see Roe v. Wade as a tale of victory for abortion rights. Instead, I see it as a tale of caution: Just because the courts say the right to an abortion exists does not make it so.

Instead of expanding on the basic premise of Roe—that no state has the power to make the ultimate determination for whether a woman continues a pregnancy—the federal courts have spent the last 40 years limiting that premise and endorsing obstacles like the above, which place abortion access out of reach for most of the country. Instead of creating a Roe doctrine that builds on that decision and recognizes the fundamental right to be free from state-compelled pregnancy, the federal courts have created a Roe hypothesis, where a right to abortion exists in theory with no discernible way to access it in reality. Instead of fully embracing women’s legal autonomy, they opened for debate the merits of rape exclusions in abortion bans and reinforced the social stigma surrounding all women’s sexual and reproductive health-care decisions, but especially abortion.

It’s not that this country risks going back to the patchwork of laws in place before Roe. It’s that, in too many ways, we never left.

News Politics

Clinton Campaign Announces Tim Kaine as Pick for Vice President

Ally Boguhn

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

The Clinton campaign announced Friday that Sen. Tim Kaine (R-VA) has been selected to join Hillary Clinton’s ticket as her vice presidential candidate.

“I’m thrilled to announce my running mate, @TimKaine, a man who’s devoted his life to fighting for others,” said Clinton in a tweet.

“.@TimKaine is a relentless optimist who believes no problem is unsolvable if you put in the work to solve it,” she added.

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

Kaine signed two letters this week calling for the regulations on banks to be eased, according to a Wednesday report published by the Huffington Post, thereby ”setting himself up as a figure willing to do battle with the progressive wing of the party.”

Charles Chamberlain, executive director of the progressive political action committee Democracy for America, told the New York Times that Kaine’s selection “could be disastrous for our efforts to defeat Donald Trump in the fall” given the senator’s apparent support of the Trans-Pacific Partnership (TPP). Just before Clinton’s campaign made the official announcement that Kaine had been selected, the senator praised the TPP during an interview with the Intercept, though he signaled he had ultimately not decided how he would vote on the matter.

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Kaine’s record on reproductive rights has also generated controversy as news began to circulate that he was being considered to join Clinton’s ticket. Though Kaine recently argued in favor of providing Planned Parenthood with access to funding to fight the Zika virus and signed on as a co-sponsor of the Women’s Health Protection Act—which would prohibit states and the federal government from enacting restrictions on abortion that aren’t applied to comparable medical services—he has also been vocal about his personal opposition to abortion.

In a June interview on NBC’s Meet the Press, Kaine told host Chuck Todd he was “personally” opposed to abortion. He went on, however, to affirm that he still believed “not just as a matter of politics, but even as a matter of morality, that matters about reproduction and intimacy and relationships and contraception are in the personal realm. They’re moral decisions for individuals to make for themselves. And the last thing we need is government intruding into those personal decisions.”

As Rewire has previously reported, though Kaine may have a 100 percent rating for his time in the Senate from Planned Parenthood Action Fund, the campaign website for his 2005 run for governor of Virginia promised he would “work in good faith to reduce abortions” by enforcing Virginia’s “restrictions on abortion and passing an enforceable ban on partial birth abortion that protects the life and health of the mother.”

As governor, Kaine did support some existing restrictions on abortion, including Virginia’s parental consent law and a so-called informed consent law. He also signed a 2009 measure that created “Choose Life” license plates in the state, and gave a percentage of the proceeds to a crisis pregnancy network.

Regardless of Clinton’s vice president pick, the “center of gravity in the Democratic Party has shifted in a bold, populist, progressive direction,” said Stephanie Taylor, co-founder of the Progressive Change Campaign Committee, in an emailed statement. “It’s now more important than ever that Hillary Clinton run an aggressive campaign on core economic ideas like expanding Social Security, debt-free college, Wall Street reform, and yes, stopping the TPP. It’s the best way to unite the Democratic Party, and stop Republicans from winning over swing voters on bread-and-butter issues.”

News Politics

Former Klan Leader on Senate Run: My Views Are Now the ‘GOP Mainstream’

Teddy Wilson

David Duke has been a fervent support of the Trump campaign, and has posted dozens of messages in support of Trump on Twitter. Duke has often used the hashtag #TrumpWasRight.

David Duke, convicted felon, white supremacist, and former leader of the Ku Klux Klan, announced Friday that he will run for U.S. Senate in Louisiana, Roll Call reported.

Duke said that after a “great outpouring of overwhelming support,” he will campaign for the open Senate seat vacated by former Republican Sen. David Vitter, who lost a bid for Louisiana governor in a runoff election.

Duke’s announcement comes the day after Donald Trump accepted the GOP nomination in the midst of growing tensions over race relations across the country. Trump has been criticized during the campaign for his rhetoric, which, his critics say, mainstreams white nationalism and provokes anxiety and fear among students of color.

His statements about crime and immigration, particularly about immigrants from Mexico and predominantly Muslim countries, have been interpreted by outlets such as the New York Times as speaking to some white supporters’ “deeper and more elaborate bigotry.”

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Duke said in his campaign announcement that he was the first candidate to promote the policy of “America first,” echoing a line from Trump’s nomination acceptance speech on Thursday night.

“The most important difference between our plan and that of our opponents, is that our plan will put America First,” Trump said Thursday night. “As long as we are led by politicians who will not put America First, then we can be assured that other nations will not treat America with respect.”

Duke said his platform has become “the GOP mainstream” and claimed credit for propelling Republicans to control of Congress in 2010. He said he is “overjoyed to see Donald Trump … embrace most of the issues I’ve championed for years.”

Trump in February declined to disavow the support of a white supremacist group and Duke, saying he knew “nothing about David Duke” and knew “nothing about white supremacists.” He later clarified that he rejected their support, and blamed his initial failure to disavow Duke on a “bad earpiece.”

Trump’s candidacy has also brought to light brought many incidents of anti-Semitism, much of which has been directed at journalists and commentators covering the presidential campaign.

Conservative commentator Ben Shapiro wrote in the National Review that Trump’s nomination has “drawn anti-Semites from the woodwork,” and that the Republican nominee has been willing to “channel the support of anti-Semites to his own ends.”

Duke took to Twitter after Trump’s acceptance speech Thursday to express his support for the Republican nominee’s vision for America.

“Great Trump Speech, America First! Stop Wars! Defeat the Corrupt elites! Protect our Borders!, Fair Trade! Couldn’t have said it better!” Duke tweeted.

Duke has been a fervent Trump supporter, and has posted dozens of messages in support of Trump on Twitter. Duke has often used the hashtag #TrumpWasRight.

Duke was elected to the Louisiana house in 1989, serving one term. Duke was the Republican nominee for governor in 1991, and was defeated by Democrat Edwin Edwards.

Duke, who plead guilty in 2002 to mail fraud and tax fraud, has served a year in federal prison.