Sixty Years of Progress Down the Drain? – The Fate of Reproductive Rights

On Sept. 18 of this year, Supreme Court Justice and active supporter of reproductive rights, Ruth Bader Ginsburg (RBG), died at her home in Washington D.C. after a final battle with pancreatic cancer. Shortly after the announcement of her death, a wave of fear and anxiety could be felt across the Bates campus and throughout the U.S. This fear stemmed from the chance that another conservative appointment, which creates a majority 6-3 conservative Supreme Court, would put the rights that many Americans currently enjoy in jeopardy. 

The preservation of reproductive rights is of major concern with a majority conservative Supreme Court. There is fear that the 1973 U.S. Supreme Court Case, Roe v. Wade, which affirms that it is a constitutional right to access legal and safe abortions, has the potential of being overturned. 

According to a survey conducted by The Student, 80.6% of students, faculty, and staff respondents reported that they think the outcome of the Nov. 3 election will impact reproductive rights. Female-identifying respondents in particular believe this; 88% said they believe reproductive rights will be affected.  

Julia Raboy ‘22, a board member of the Bates Reproductive Justice Alliance (RJA), was beginning to celebrate the Jewish new year, Rosh Hashanah, when she heard about the death of RBG. As she was grieving her death, the prominent Jewish thinker, Ruth Franklin, tweeted: “According to Jewish tradition, a person who dies on Rosh Hashanah… is a tzaddik, a person of great righteousness.” Raboy has been clinging to this quote throughout the recent Senate hearings for RBG’s conservative Supreme Court replacement, Amy Coney Barrett. 

“I’d like to believe all that RBG has worked toward in securing not only reproductive rights but reproductive justice, can’t be so easily undone. But I guess only time will tell,” Raboy said. 

Politics Professor Steven Engel, an expert in constitutional law, believes that access to abortion “will likely be curbed by the Supreme Court.” Engel is unsure if there will be an explicit overturning of Roe v. Wade in the near future, but it is much more likely that restrictions on access to abortion through state legislatures will increase.  

The 1992 Supreme Court decision in Planned Parenthood v. Casey ruled that it is a constitutional right to seek an abortion without undue burden prior to the viability of the fetus (viability refers to the point within gestation that the fetus can survive outside of the womb). Despite this ruling, states have found means of passing legislation that restricts abortion access. 

Politics major Elise Grossfeld ‘21, told The Student that “since state legislatures do not get as much media attention as Congress, it is easy for these bills to fly under the radar.” Some of these restrictions include prohibiting abortions after a specific point and requiring parental consent or partner consent, regardless of family situation. 

The “heartbeat” bills are one state-level techniques used to limit abortion. This legislature prohibits abortions after a heartbeat can be detected, which can be early as six weeks — long before many women are aware that they are pregnant. This clearly violates the Planned Parenthood v. Casey viability doctrine as the fetus is not yet able to survive outside of the womb. For this reason, many heartbeat bills have either died or stalled, pending further action. However, several states, including Georgia, Kentucky, Ohio, and Mississippi, have managed to pass these bills into law.  

Grossfeld’s senior thesis examines the factors that allow the heartbeat bill to pass within the state legislature. “I am looking at how factors such as the presence of Republican female legislators, anti-abortion interest groups, and the partisan composition of the state… affects whether or not the bill is introduced and passed,” Grossfeld said. 

The confirmation of Amy Coney Barrett as the new Supreme Court Justice, solidifying a Republican majority, may allow for more legislature like the heartbeat bills to slip by the viability doctrine and become easily passed. 

“I think people are so anxious about a Justice Barrett in part because she has expressed views that are not only hostile to Roe [v. Wade], but hostile to the foundation of Roe, namely privacy,” Engel said. 

The interpretation of privacy as a fundamental right in the constitution not only allows for abortion access but also access to other forms of reproductive healthcare (i.e. contraception, PAP smears, and STD testing), and the decriminalization of same-sex intimacy and marriage. Since Barett’s interpretation of the constitution does not include the right to privacy, all of these rights are put at stake with Barret’s confirmation.

Reproductive rights are protected by a second mechanism besides the right to privacy: the Affordable Care Act (ACA), whose constitutionality is once again before the Supreme Court. Since Barrett has long been an advocate for the conservative legal movement, she is most likely hostile towards the ACA and would vote the law as unconstitutional. The loss of the ACA would disproportionately affect minority communities who have relied on these health care services. In light of the pandemic, it would also be devastating for those seeking care for COVID-19.

Raboy is most worried about the equitable access to reproductive healthcare for minoritized populations. “It is already so difficult for the majority of Americans to access adequate reproductive care, even now while procedures like abortion are legal. If there is a repeal on some of the most fundamental reproductive rights… it will be members of the most marginalized communities who will be hit first and hardest,” Raboy said. 

In the event that Roe v. Wade is overturned, abortion rights will be left to states and more bills that prohibit access to abortion will be passed. “This is because abortion is a fully-partisan issue,” Engel said. The Republican party has been known to be actively opposed to Roe v. Wade, while the Democratic party acts as the “political home” for those who support the matter. 

However, there is still some hope in the protection of reproductive rights. Engel largely believes that the confirmation of Amy Coney Barett will only limit, rather than explicitly overturn, Roe v. Wade. Only in the event that President Trump is re-elected and is able to replace Justice Stephen Breyer will the ruling be completely overturned. 

Although the Supreme Court in the past has often ruled against popularly supported policies, over 70 percent of Americans support access to abortion. “The court has often ultimately relented, in part, I believe because the Constitution belongs to the people and not to just judges. I have faith that will remain true,” Engel remarked. 

Engel recommends in the case that “the Supreme Court does overturn the ACA or Roe, learn what the consequences of that are and engage with your representatives in Congress and at the state level to promote the range of policy and institutional responses.” As much as it may feel out of our hands, collectively using our voices to protect and promote the rights which uphold equality holds more power than we think.