A Roe requiem and a road to a brighter future

Roe would have turned 50 yesterday. Last summer the conservative justices of the Supreme Court decided this was not to be. Roe’s not-a-versary provides a moment to chronicle the loss and plot a determined path forward.

Although far from perfect, there was much to love about Roe. Its trimester framework made abortion accessible to many, though not to all. Roe was not written by a pack of radical feminists: In 1973 the bipartisan, all-male majority was reacting to the times and case law when it voted 7-2 in favor of legalizing abortion nationwide. 

Already abortion was legal and/or readily available in several states. Just a year earlier, the court had (finally) legalized contraception for unmarried people in Eisenstadt v. Baird by applying the same privacy rights rationale that would form the core of Roe. A nascent “women’s lib” movement was successfully challenging traditional sex stereotypes. Justice Harry Blackmun’s Roe opinion was a consensus that sought to keep abortion uncontroversial and in doctors’ offices. 

In the years following Roe, anti-abortion legislators and judges constructed barriers that hit the most marginalized women the hardest. First came a ban on federal Medicaid funding, moving abortion out of reach for many low-income folks, and disproportionately harming women of color. To further their agenda, abortion opponents steadily and successfully wooed the Republican party. President Ronald Regan’s politically expedient shift to oppose abortion fueled a movement, one that also began to dominate statehouses nationwide. 

Once the Supreme Court in 1992 in Planned Parenthood v. Casey voted to allow states to place “burdens” on access to abortion, the anti-abortion floodgates opened wide. Republicans enacted a wide range of anti-abortion laws at the state level, such as waiting periods, onerous clinic regulations and biased counseling requirements. These restrictions, combined with the effects of domestic terrorism and widespread violence against abortion providers throughout the 1990s, severely curtailed abortion access. Abortion services were inaccessible for rural women, teens and those who lacked the resources for travel or faced systemic racism in accessing health care.

By middle age, Roe was a hollowed-out shell of its younger self. 

Last year, Dobbs v. Jackson Women’s Health Organization erased Roe’s protections and the abortion landscape became dramatically more barren. Broad swaths of the U.S. now severely restrict or ban abortion, with more likely to come. Several medical schools have stopped teaching basic reproductive health techniques essential to preserving fertility and preventing serious harm to pregnant people. Without Roe, miscarriage management also has become dangerously limited in red states. 

Abortion funds responded by dramatically increasing assistance with the costs and logistics of traveling to reach abortion services. But travel for abortion with its accompanying costs, disruption and stigmatization is often impossible and rarely ideal. 

In this post-Roe era, the brightest light is the growing availability of medication abortion. The two-pill regimen is safe and effective up to at least 11 weeks of pregnancy. It did not exist as an option in the pre-Roe era. After it gained FDA approval in 2000, abortion opponents started working at the state and federal levels to impose significant restrictions on access.

Fortunately, with the help of dedicated community activists and nonprofit groups, women and pregnant people are able to access medication abortion in restrictive circumstances and safely self-induce an abortion on their own terms. Decades ago women, of color launched the reproductive justice movement to recognize that abortion is a fundamental human right and one that is majorly encumbered by racial inequity. Sometimes called abortion freedom fighters, these activists help women and pregnant people to access the resources they need to decide whether to safely continue a pregnancy or access abortion. 

Allied activists are now pursuing telehealth as a way to directly reach the most marginalized people. The reproductive health care providers and activists that I work with to develop these practices feel an ethical obligation to help women and pregnant patients who have been denied in-state options. Telehealth offers the direct involvement of a health care provider and substantially lessens the burden on those patients who cannot or do not want to travel in person to a clinic. After a telehealth appointment with a provider, a patient can receive abortion medication by mail within a few days. Contraception and a host of other reproductive health care also can be readily provided through telehealth.

Massachusetts has taken the lead to give telehealth abortion providers a level of protection by passing the country’s first “shield law.” Anti-abortion state officials who seek to cross state lines to prosecute, bring civil claims or simply intimidate clinicians providing essential reproductive health care will receive no help. Physicians, midwives and other medical care providers are getting ready to start offering services. Other states are following suit and just this month New York introduced a bill that is expected to move quickly, with California, Vermont, Illinois, Washington, Colorado and others not far behind. 

In addition to telehealth, we need to increase access to free contraceptives as the Affordable Care Act promised us; the Biden administration must take the lead on enforcement. The administration also will soon launch new workplace protections once the Pregnant Workers’ Fairness Act, which was included in the omnibus spending bill, is signed. Let’s follow it up with better support for child care and universal pre-K that are so essential for working parents.

Long term, we need to modernize our federal constitution by adding a Gender Equity Amendment. Our chance at equal opportunity should not rely so heavily on the weakened privacy rights precedent that remains after Roe. More than 100 years after our foremothers gained the right to vote, it’s time to demand more from our constitution.

Doing so means we’ll need to stay politically engaged for the long haul. The abortion-rights majority in the U.S. must roar, echoing the global “Green Wave” that already has successfully legalized abortion in several countries by recognizing abortion rights as human rights. It’s what the framers of Roe would have wanted.  

Julie F. Kay is a human rights lawyer who successfully argued against Ireland’s ban on abortion before the European Court of Human Rights and the co-author of “Controlling Women: What We Must Do Now to Save Reproductive Freedom.”