In the last week alone, anti-abortion laws moved forward in four states. Arizona and Kentucky voted to approve a 15-week abortion ban. Idaho’s governor signed into law a bill that bans abortion after about six weeks of pregnancy. A near total ban on abortion began making its way through Oklahoma’s legislature. They’re all part of a larger juggernaut rolling back abortion rights that doesn’t seem to be impeded by the legal consensus that Roe v. Wade is settled law.
Supreme Court nominee Ketanji Brown Jackson reinforced that consensus in her confirmation hearing when she said that she agreed with Justices Brett Kavanaugh and Amy Coney Barrett that Roe is settled law and that the Supreme Court has reaffirmed the framework Roe established.
So why, if there’s no disagreement about Roe being settled law, is its future so in doubt?
The short answer is that Roe is already effectively overturned for many. One in 10 women of reproductive age in the U.S. live in Texas, and for them, the state’s SB 8 law renders abortion rights under Roe essentially meaningless. SB 8 bans abortion as early as six weeks of pregnancy, a radical departure from the “settled law” of Roe which the conservative-majority Supreme Court nonetheless allowed to stand.
The advent of SB 8 is prompting copycat anti-abortion legislation outside Texas, just as abortion rights advocates predicted it would. In addition to Idaho and Oklahoma, lawmakers in Missouri and ten other states are proposing Texas-style laws that empower private citizens to sue anyone who “aids and abets” an abortion after the period set by the ban.
In other states, lawmakers are closely following Mississippi’s 15-week abortion ban and proposing bills that emulate it. Mississippi’s abortion ban is a direct challenge to Roe and is currently before the Supreme Court. During oral arguments, Justice Barrett stated that stare decisis (the legal principle that courts will adhere to established precedent in decisions) was not an “inexorable command and that there are some circumstances in which overruling is possible.”
Anti-abortion lawmakers are taking this as a signal that Roe’s days are numbered. In addition to Arizona and Kentucky, lawmakers in Florida and West Virginia are passing 15-week abortion bans mirroring Mississippi’s. One Florida lawmaker callously characterized the 15-week period as “generous,” which may be an indication that anti-abortion legislators prefer a six-week ban, but they’re starting with a 15-week ban for tactical reasons and could tighten restrictions over time.
All this comes on the heels of the worst year for abortion rights since the Roe decision in 1973. The U.S. performance on reproductive health and rights in 2021 scored the worst grades yet in the ten-year history of the Population Institute 50-State Report Card, not the least due to the many anti-abortion bills enacted. And it’s not just the gestational age bans directly challenging Roe that anti-abortion lawmakers are enacting;attacks on abortion rights are also carried out through a plethora of restrictive policies that undermine Roe, such as TRAP laws (targeted restrictions on abortion providers), mandatory counseling and waiting periods, method bans or restrictions, and more.
These medically unnecessary restrictions have a cumulative effect, working in tandem to make access to abortion insurmountable for many and deepening existing inequalities. They disproportionately impact Black, indigenous, and people of color, people earning lower incomes, people in rural areas, people with disabilities, young people, and the LGBTQ+ community.
Research on the economic costs of abortion restrictions shows that being denied an abortion negatively impacts an individual’s financial situation, health, and well-being, and contributes to a systemic cycle of poverty, inequality, and economic injustice. And that’s while Roe is still in effect. If the Supreme Court guts Roe or strikes it down, those impacts will only worsen.
Supreme Court Justices must stand by what they said in their confirmation hearings about Roe being settled law. But we also need to do more than just preserve it as a precedent. Roe is not the ceiling of abortions rights, it’s the floor. It is not and never was sufficient to ensure that everyone — regardless of race, income level, zip code, gender identity, or immigration status — has access to abortion services. Even with Roe still in force, the right to abortion is more theoretical than actual for far too many people in the U.S.
Judge Jackson’s nomination comes at a time when abortion rights are in peril. Her confirmation is critical to the future of the Supreme Court and the decisions it passes down. But if confirmed, she won’t take her seat until next term, after the fate of Roe is decided in the Mississippi case. And her confirmation won’t change the Supreme Court’s 6-3 conservative supermajority.
It’s up to Congress to guarantee bodily autonomy through legislation. The Women’s Health Protection Act would have just done that. While the House passed it in an historic vote in September 2021, the Senate rejected it in February. But that can’t be the end of the story. The bill should be brought back until it’s enacted.
With the fate of Roe hanging in the balance, it’s all the more important that abortion access for anyone who needs it, anywhere in the U.S., be codified in federal law. Access to abortion is not a privilege for a few; it’s a basic right for all.
Bridget Kelly is director of research at the Population Institute, a nonprofit based in Washington, D.C. that supports reproductive health and rights.