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Sensemaker: Abortion in America

Sensemaker: Abortion in America

What just happened

Long stories short

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  • Australia’s strict international border policy will be relaxed in November, allowing many of its citizens to travel abroad for the first time in 18 months. 
  • Colombian pop star Shakira was attacked by wild boars while walking in a Barcelona park with her sons. 

Abortion in America

A month ago today it became illegal in Texas to get an abortion after six weeks of pregnancy. But the significance of the Texas ban goes beyond state lines. What happens next could mean half of US states criminalise abortion, impacting millions of women. And an issue that has long divided America will become even more partisan. Was that the plan all along? 

What happened in Texas:

  • Just before midnight on 1 September the US Supreme Court declined to block a Texas law that effectively banned elective abortion after six weeks of pregnancy, when campaigners say a foetal heartbeat is detectable. 
  • It’s estimated 85–90 per cent of abortions happen after six weeks, mainly because most women don’t know they are pregnant until after that point.
  • The law bypassed the precedent set by Roe v Wade in 1973 and Planned Parenthood v Casey in 1992 – cases that established a constitutional right to access abortion without “undue burden” before viability (defined as when a foetus could live outside the womb). 

How did it bypass Roe? The new law says private citizens – including in other states or abroad – can sue if they believe someone “performed, aided or abetted” in abortions before six weeks. If successful, the complainant receives at least $10,000. This means government officials have no role in enforcement of the law, and the state can’t be sued for enforcing unconstitutional abortion restrictons – as is standard practice for pro-choice groups and their lawyers. 

The Texas law put the Supreme Court in a bind. The justices felt they couldn’t remark on the constitutionality of the law set out by Roe because of its complexities. Instead they ruled on whether the law could be challenged in courts. 

What did Biden say? The Biden administration has made it clear it will fight the Texas ban. At the president’s request, the Justice Department (DoJ) has sued the state for enforcing the law on the ground that it “illegally interferes with federal interests”. But the snail’s pace of the court system means the impact of the DoJ’s lawsuit is unlikely to be felt anytime soon.

The Texas ban is important for its citizens. But it also highlights a rift between the White House and the Supreme Court. In a statement after the Texas judgment, Biden said: “Rather than use its supreme authority to ensure justice could be fairly sought, the highest court of our land will allow millions of women in Texas in need of critical reproductive care to suffer while courts sift through procedural complexities.” Once again, abortion divides. 

How did it happen?

  • In 2016 Trump was asked in an election debate if he wanted Roe v Wade to be overturned. He replied that, if elected, it would “happen automatically… because I am putting pro-life justices on the court”.
  • In 2017 Mitch McConnell, as Senate majority leader, invoked a motion to override the filibuster rule for the nomination of Supreme Court justices. This meant justices could be appointed with a simple majority (51) in the 100 person chamber rather than the usual 60.
  • Trump then appointed three conservative justices over the course of his term, whom hold anti-abortion views. The latest, Amy Coney Barrett, replaced reproductive rights advocate Ruth Bader Ginsburg after her death last year. 
  • The Supreme Court now has a 6–3 conservative majority. Five justices voted to uphold the Texas ban – the three appointed by Trump and two other conservatives. The chief justice, John Roberts, dissented along with the three liberal justices.

It’s in this legal landscape that all eyes are on– or should be on – Mississippi. The next battleground over reproductive rights is arguably even more important than Texas.

Mississippi: 

  • In 2018 a state law was introduced by Mississippi Republicans that would ban abortion after 15 weeks. It was immediately challenged by the state’s sole abortion clinic, and federal district courts blocked it under Roe.
  • The Fifth Circuit Court of Appeals upheld that decision in 2019. But a petition was sent by the state in June 2020 asking the Supreme Court to consider the law’s constitutionality.
  • In May this year the court agreed to hear the petition, with the upshot that lawyers for the state and its only abortion clinic will present opposing arguments to the Supreme Court on 1 December in Dobbs v Jackson Women’s Health Organization
  • Mississippi’s attorney general Lynn Fitch says Roe and Casey have “damaged the democratic process” and “poisoned [America’s] national discourse”. 
  • Pro-choicers didn’t expect the Supreme Court to take up the case even with its conservative majority, as the Jackson clinic’s director explained earlier this year. More than 1,000 friend-of-the-court briefs have been filed, most by pro-lifers but including a pro-choice submission by more than 500 female athletes including Megan Rapinoe, captain of the US women’s soccer team.

The Supreme Court’s decision hangs on a single question to be decided by June next year: whether all pre-viability prohibitions on elective abortions are unconstitutional. 

Pro-life demonstrators petition staff outside the Jackson Women’s Health Organization clinic in Jackson, Mississippi

If the Supreme Court decides Mississippi can ban abortion weeks before viability (24 weeks), other states could follow suit. In principle they could enforce complete bans if they wished. Texas wouldn’t need to get private citizens involved, since the state could constitutionally enforce a six-week ban. The legal basis for the precedent established nearly 50 years ago by Roe would have been dismantled. 

The Supreme Court’s decision to hear the case is already a big win for pro-life groups. Laura Knight, president of Pro-Life Mississippi, tells Sensemaker: “With Dobbs, the Supreme Court can return decision-making about abortion policy to the elected leaders and allow the people to empower women and promote life.” 

Post-Roe America. What would an America without Roe v Wade look like? 

  • Abortion would likely become illegal in 22 states where existing legislation has been blocked by Roe, “trigger” legislation is waiting for Roe to be overturned or pre-Roe laws are waiting to be reinstated. 
  • 41 per cent of women of childbearing age would see their nearest clinic close. 
  • The average distance to get to an open clinic would rise from 36 miles to 279.
  • Up to 140,000 women seeking abortion would be unable to access one in the first year post-Roe, because of the distances involved. 

The end result? A tangle of abortion laws with little control at a federal level, vast areas with no access at all to abortion and “havens” on the west coast and in the northeast.

What are the chances? High. Mary Ziegler, a law professor at Florida State University, tells Sensemaker: “It’s definitely likely that the court will either reverse Roe altogether, or take a significant step in that direction.” She isn’t alone. Jennifer Holland, a historian at Oklahoma University who studies the anti-abortion movement, said abortion scholars and others paying attention to Mississippi tend to assume the court will “either fully overturn Roe either fully overturn Roe, or “leave it with nothing left”.

What changed? Anti-abortionists have been fighting Roe in court since it was introduced, but its precedent has continued to stand, if sometimes shakily. Holland traces the current threat to US abortion rights to the start of the millennium, when anti-abortion activists “put their foot down” and made it clear they wouldn’t elect Republicans who didn’t take action on abortion. It worked.

So Roe is over? Yes and no. Technically it will stay on the books, but if the Mississippi law is upheld, Roe will have little standing in court. Instead, Democrats hope to pass the Women’s Health Protection Act, legislation that would cement the right to abortion access federally rather than working through state courts. It was approved by the Democrat-controlled House of Representatives last week, but will face a vastly tougher challenge in the Senate. 

Norma McCorvey known as the Jane Roe from the 1973 ‘Roe v Wade’ ruling and lawyer Gloria Allred at a rally outside the Supreme Court, 1989

Pro-life organisations have their own legislative goals. Pro Life Mississippi, for example, wants a “personhood amendment” to the US constitution, which would recognise a “right to life of all human beings from the moment of their conception”.  

Midterms are on the horizon too. In November next year 34 Senate seats will be contested and candidates are unlikely to change tack on such a contentious issue. America remains split down the middle on abortion. In recent Gallup polling, 49 per cent of respondents said they considered themselves pro-choice – and 47 per cent pro-life. 

Both groups are political constituencies. Trump was never an abortion zealot but he harnessed the anti-abortion movement to smooth his path to the White House and consolidate his base. And the movement harnessed him to bring a diffuse but national effort that has been building for a generation to this point of power. Control of the Supreme Court was a means to an end that is now within the anti-abortionists’ grasp: the end of Roe v Wade.


Belonging identity, society, beliefs, countries

Black mothers matter
Speaking after the US Supreme Court refused to block the new Texas abortion law, Vice President Kamala Harris said it would “dramatically reduce access to reproductive care for women in Texas, particularly for women with low incomes and women of color”. The stats back Harris up. According to research from the Guttmacher Institute in 2014, nearly half of women accessing abortion in the America were living below the federal poverty level. Additionally, the American Journal of Public Health found black women have a disproportionately high abortion rate (27.1 per 1,000 women) compared with white women (10 per 1,000 women). When a state decides to ban abortion as Texas has, it’s poorer, non-white women who will see the biggest change. 


New things technology, science, engineering

Ransomware attack 
The WSJ reported yesterday on what may be the first death caused by a ransomware attack. In 2019, the Springhill Medical Center in Alabama faced nearly eight days of computer outages after a coordinated attack by hackers, believed to be the Russian-based gang Ryuk, which was launching similar attacks on other hospitals at the time. In the course of these eight days Teiranni Kidd gave birth to a girl, Nicko Silar, born with her umbilical cord wrapped around her neck. The baby was diagnosed with brain damage and died nine months later. Kidd is now suing the hospital for medical malpractice and claims the hack meant fewer eyes than necessary were on the foetal heartbeat monitors because of the computer shutdown, leading to her baby’s death. Yesterday, in our first Cyber Summit, we heard from experts across the world working to keep ahead of cybercrime. It seems to be pulling ahead of us. 


The 100-year life health, education, living, public poliCY

Secretary charged
Can the secretary of a Nazi concentration camp commandant be held responsible for deaths in the camp more than 70 years after the event? That is the question in the trial of 96-year-old Irmgard Furchner, assuming it ever takes place. She absconded from her care home in northern Germany yesterday morning rather than appear at the start of the trial in Quickborn, near Hamburg, where Holocaust survivors from the Stutthof camp – in what is now Poland – were also due to appear. Furchner took a taxi towards a nearby metro station yesterday morning but was apprehended and taken for a medical assessment. The case could resume next month. It has been made possible by a 2011 ruling in the case of John Demjanjuk, a former guard at the Sobibor camp, that anyone can be held responsible for holocaust deaths if proven to be a cog in the “machinery of destruction” – however small. 


Our planet environment, natural resources, geopolitics

Amazon reprieve
Half as many fires were counted in the Amazon in the first 29 days of September as in the same period last year. Rain had something to do with it – there was more of it, and more is forecast for October. But so did human efforts to save the forest. A senior scientist at Brazil’s national space research agency said thousands of fines issued for illegal burning and deforestation had been “very relevant”. It’s significant that a space agency is pulling all this information together. The Amazon is so huge that satellites are best-placed to see the big picture – although a Reuters reporter in a spotter plane roughly corroborated the findings from low-earth orbit, seeing only two fires in a 40-minute flight from Porto Velho in the upper Amazon basin. There are no grounds for complacency, though. 16,747 fires – the September count – is still a lot. 


Wealth investment, fairness, prosperity

Economics of abortion
Both sides in the abortion debate have long relied on emotional and moral arguments to galvanise support, sometimes leaving the economic impact out of the conversation. But that impact is substantial. Research from the Institute for Women’s Policy Research suggests limiting abortion access can cost state and local economies in the US $105 billion a year as women participate less in the labour force and earn less. Limiting access to abortion affects employers too. After last month’s de facto ban in Texas, 50 companies including Netflix, Bumble and Yelp signed an open letter in protest. Salesforce, which has offices in Dallas, set up a fund for employees seeking abortions and offered to help relocate employees. The CEO of Dell Technologies sent an email to his Texas employees saying the company’s goal was “for you to have more (health) coverage, not less”. Uber and Lyft offered to pay drivers’ legal costs if they were sued for taking a women to an “illegal” abortion. There is a common thread here: Texas has increasingly become a magnet for tech companies seeking lower rents and tax. Could abortion bans change that?

Thanks for reading, and do share this around.

Phoebe Davis
@phoebe_ivy

Giles Whittell
@gwhittell

Produced by Phoebe Davis and edited by Xavier Greenwood. 

Photographs Damian Klamka/ZUMA Wire/Shutterstock & Getty Images