The Politics of Abortion in the US

The ‘personal’ history of Roe isn’t exactly distilled water for all. Jane Roe’s — or Norma McCorvey’s — story is never accepted by pro-choice activists. From McCorvey terming her pregnancy as a consequence of rape to calling it a result of consensual sex, the case of abortion rights wasn’t exactly strengthened by the weak storytelling that she flaunted. Further, it gave enough reasons for the conservative, pro-life opinion to pounce and attend to the ‘harmful’ effects that abortions had had on young women. A New Yorker article, notes how McCorvey even fell onto the other side of the discourse, supporting the pro-life cause, therefore bringing more discontentment to the pro-choice movement (as per Joshua Prager’s observations). But none of this takes away from the fact that Jane Roe wanted an abortion, and ended up not getting the right, albeit a judgment that came in her favor. Why? It was too late — the judicial system can never match the ‘brevity’ of gestation. And if Prager is to be believed, her attorneys were too eager to cast her as a plaintiff than as a victim.

Experts like Ruth Bader Ginsburg did oppose the structure of the verdict. Ginsburg went on to describe how the verdict essentially categorized abortion rights as constitutionally concerned with privacy than with equal protection. Her thoughts came as an immediate reaction to Struck v Secretary of Defense wherein Captain Struck was ordered out of service because she was pregnant and for Ginsburg, this was violative of the right to equal protection – Struck’s personal choice was being diminished here. The Roe verdict overlooked the nuanced nature of abortion rights, in her opinion. Ginsburg had called into question the very power of the State to decide what a woman does with her body or not.

Verdicts never are perfect and that is a consequence of the complexity of the law. There will be multiple lenses to look at these rulings and later interpret them in keeping with whatever circumstance a future case might be set in. And so, Roe v Wade, despite all of its ‘personal’ fidgetiness and the public critiques that came through, stood its ground because it helped women. It helped women access the healthcare system and assert some individual choice.

Verdict overturned

The Roe v Wade verdict (1973) ruled that all state bans or constraints on abortion were unconstitutional. It “held that the specific guarantee of ‘liberty’ in the Fourteenth Amendment of the US Constitution, which protects individual privacy, includes the right to abortion prior to fetal viability.” Now, fetal viability is that stage at which the fetus is capable of growing or developing outside the uterus — and this is the point where the fetus’ rights become separate from that of the mother. Viability, given recent medical advancements, stand between 23 and 24 weeks today. That is around 6 months. In announcing its decision, the court did specify that the right to privacy could come under the state’s scanner when it deems it necessary to interfere in protecting the life and health of the individual.

The verdict enabled safe abortion practices to be adopted by women. The risks reduced with fewer women requiring post-abortion hospitalization out of complications. It also allowed more opportunities for women now that they could pursue their actual personal choices — they were stepping out to further their education and get employed.

But, on June 24, 2022, this verdict was overturned. Justice Samuel Alito, representing the majority on the bench, wrote that the Roe judgment had to be overruled because it was “egregiously wrong” and the arguments it placed weren’t strong at all. The justices who opposed this new turn were only three in number and were appointed by Clinton and Obama during their terms. They were quick to recognize and state that this overruling means trouble for young women who will now have “fewer rights than their mothers and grandmothers.” In a strongly worded manner, they wrote, “With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent.”

In the context of a renewed Supreme Court position, more than half the states in the US were inclining toward banning abortion. The Guttmacher Institute, in a study on the state of abortion, noted how the obstacles faced by those wanting to terminate their pregnancies were plenty even before the verdict was handed out: In a survey carried out across 6674 pregnancy-capable individuals, they found that “abortion patients in restricted states were more likely to be paying out-of-pocket for care, be relying on financial assistance, and indicate that it was difficult to pay for the abortion… [and] twelve percent of the respondents crossed state lines for care and the majority was going to another restricted state.” It is also strange how, even in the post-Roe phase, some states did not roll back bans — all that they needed to do now was bring these back to light.

Mifepristone, access, and the way ahead

A Texas federal judge, Matthew Kacsmaryk, decided to suspend the approval that FDA had given to mifepristone, an abortion pill widely in use. The lawsuit was filed by anti-abortion activists, the Alliance for Hippocratic Medicine, and four doctors who maintained a pro-life stance. In Washington, a ruling opposed the suspension. Because there were contradictory rulings, this issue was eventually taken to the 5th Circuit Court of Appeals where it was decided to keep mifepristone available in the market but to have restrictions imposed on when to use it and how it could be dispensed. While it did not challenge the 2000 approval, it did revoke the 2019 approval given to mifepristone’s generic form.

In response to these developments, the US justice department accompanied by Danco Laboratories took the case to the Supreme Court underscoring how the drug could become entirely inaccessible for months if the Texas judge’s decision was upheld. After extending the deadline by two extra days, the Supreme Court finally allowed the drug to remain in market. Two justices, both appointed by Conservatives, publicly dissented as well with Samuel Alito commenting swiftly that the two parties (Danco and the Justice Department) “are not entitled to a stay because they have not shown that they are likely to suffer irreparable harm in the interim.”

But the Supreme Court decision is not the final stop. These were emergency requests and the ruling simply returned the matter to the appeals court for further review.

What’s important to note here is that mifepristone, through multiple studies, was shown to cause no harm and has proven effective, especially when taken with misoprostol. Nearly half of America’s abortions were carried out through this method of medication because it is affordable and not invasive. In fact, it was found to be even safer than penicillin and Viagra – it also showed only a 0.31% risk of medical complications.

It’s also absolutely necessary to understand that misoprostol is a drug that has been in use for treating other illnesses like stomach ulcers. There have been people who took this drug without combining it with mifepristone — these cases led to more medical complications. If mifepristone is to go off the pharmacy racks, chances are, people will, in large numbers, go back to the single-drug formula. And this can only worsen the situation and make abortion practices unsafe, let alone unaffordable. In the pursuit of false safety, the conservative forces are wrecking the state of reproductive rights.

The Biden administration sure is trying very hard to preserve access to medication for abortion. Rather than make pregnancy-capable individuals take up highly risky methods — because the need to terminate pregnancies does not magically disappear with the ban on procedures — it would be best to make sure that the procedures remain well within the reach of those in need. Additionally, whenever there is a policy change, it needs to be communicated transparently across all states. In the case of mifepristone, even before the Texas ruling, there was much confusion in some states about whether selling the drug was 'legal' or not. In terms of administrative attitude, there needs to be a more inclusive way of placing policies too. In most of the conversations around abortion, the transgender community is not taken into account. It is, therefore, more appropriate to use an umbrella term that does not just restrict itself to 'women'.