Turn Outrage at Court into Muscle

‘Roe v. Wade’ ruling means Biden, DOJ must protect women

President Biden is right that the surest way to counter the Supreme Court’s decision to end to a half-century of federal abortion rights is to elect pro-choice lawmakers who could codify those rights into law.

“You can have the final word,” he said in his statement after the ruling’s release. “This is not over.”

Yet his administration also must aggressively work to ensure this broadly unpopular decision doesn’t lead to more women dying because of fewer places to get safe and legal abortions.

For, despite the likelihood that at least 26 states will soon ban the procedure, abortions will not cease. The 6–3 court ruled that the 1973 Roe v. Wade ruling was wrongly decided as a constitutional right and that abortion laws should be left to the states.

After the ruling was announced, Attorney General Merrick Garland vowed to “use every tool at our disposal to protect reproductive freedom.” He outlined some lines that abortion-ban states shouldn’t cross:

• Abortion pills remain legal. About half the abortions in the country are by medication, not surgery. During the pandemic, the Food and Drug Administration approved distribution by mail with a tele-health visit. Several states have already passed laws banning the medication or imposing barriers to getting them.
• No state can prevent residents from visiting another state to get an abortion. Missouri lawmakers have been considering this option.
• Under the First Amendment, individuals must remain free to inform and counsel each other about reproductive care available in other states.
• DOJ will continue to enforce the law prohibiting obstruction to reproductive health services through violence, threats or property damage.

Most intriguing was Garland’s statement that federal agencies may continue to provide reproductive health services and that the states have no rights to impose civil or criminal penalties on those workers.

Is it possible, then, for federal abortion services to be established in states that ban abortion?

In whatever way DOJ and other federal agencies respond, it should be strong and immediate. Official letters or legal filings should be sent to states that have passed extreme bans opposed by the majority of their citizens. Too many states make abortion illegal even in the case of rape or incest. Oklahoma even prohibits abortion after fertilization.

Also, find ways to support the 15 states and Washington, D.C., that have strengthened their laws to ensure women retain control over their bodies, as well as groups such as the National Network of Abortion Funds that help pay expenses for women who must travel out of state for care. There could be incentives for more businesses to aid their employees.

As Biden said, this is not over. The anti-abortion movement is aiming for a nationwide abortion ban, if conservatives get control of Congress. Also Justice Clarence Thomas, in a concurring court opinion, welcomed challenges against privacy rights over birth control and marriage equality.

To counter this successful decades-long anti-abortion strategy will take some confrontation and ingenuity. For instance, hours after the ruling’s release, California Gov. Gavin Newsom signed a law that would, along with Oregon and Washington, protect abortion providers and their patients that come from other states.

“The Supreme Court has stripped women of their liberty and let red states replace it with mandated birth,” he said. “Time to fight like hell.”