As December approaches, those on either side of the abortion debate are anxiously awaiting the first of the month, when the Supreme Court will hear oral arguments in Dobbs v. Jackson Women's Health Organization, the case that could decide whether the 1973 Roe v. Wade decision legalizing abortion will be overturned.
The case revolves around a law passed in Mississippi that outlaws abortions after 15 weeks' gestation, which is several weeks before the fetus is considered viable. At issue in the case is whether all pre-viability laws against abortions are unconstitutional.
Sides Differ on What's at Stake
Each side has very different views about what's at stake in the case. According to Laura Echevarria, spokesperson for the National Right to Life Committee, which opposes abortion, the Roe decision took away the right of each state to decide its own abortion restrictions. In 1973, "there were some states that were moving in the direction of liberalizing their abortion laws, others that of course had not, and so it was something that was being looked at on a state-by-state basis," she said in a phone interview. "It's out of the hands of the people, and it should have stayed with the state and allowed states to make this decision."
The decision also "was not a decision based on behalf of the woman," but more on the right of the physician to decide, she added. "Physicians were held to a really high degree of respect, and the way this decision was written, it was actually written more for the rights of the doctor to make this decision, rather than any rights of the woman."
But Julie Rikelman, JD, senior litigation director for the Center for Reproductive Rights (CRR), who will be arguing the case at the Supreme Court on behalf of Jackson Women's Health Organization -- the only remaining abortion clinic in Mississippi -- sees it differently. "A decision upholding this ban on abortion before viability would really undermine the rule of law," said Rikelman during a briefing for reporters hosted by the CRR. "And that's because the Supreme Court has recognized and protected this right as part of the constitutional right to liberty for just about 50 years now."
In previous cases, the high court has already looked at the issues presented in this case, and has rejected all the arguments for overturning Roe, she added. "One of the things that [the court] had said incredibly clearly was that a woman's right to make this decision before viability was a rule of law and a component of liberty ... Nothing has changed in terms of the facts; nothing has changed in terms of the law. So there is just no basis for the court to reach a different outcome today than it has in the past."
Is Roe on Solid Ground?
One question hovering over the case is whether the Roe decision was solidly grounded. "The foundation for it is very weak legally, and that's why you even see people on the other side of this issue" who will acknowledge that, said Echevarria. "Usually you can look at the Constitution and the Supreme Court will say, 'This is constitutional; this isn't constitutional.' This [decision] has no real foundation in anything."
The decision also relies on a right to privacy, although the justices admitted that such a right wasn't explicitly in the Constitution, she noted.
But the Roe decision wasn't just based on a right to privacy, according to Mary Ziegler, JD, professor of law at Florida State University in Tallahassee and the author of Abortion and the Law in America: A Legal History, Roe v. Wade to the Present. "The argument that abortion rights' supporters usually make relies on the Equal Protection Clause [of the 14th Amendment], which prohibits sex discrimination," she wrote in an email. "The arguments vary; some focus on the sex stereotypes that claimed to motivate abortion restrictions; some focus on the fact that only certain people -- primarily cisgender women -- get pregnant, which makes abortion regulations tantamount to sex-based laws."
The oral arguments come at a time when abortions appear to be on the decline in the U.S., although exact numbers are hard to come by. "The number and rate of abortions increased rapidly after abortion was made legal in the whole U.S. by Roe v. Wade, stayed relatively stable through the 80s, and then started declining; they have been declining since the 80s," Amanda Stevenson, PhD, assistant professor of sociology at the University of Colorado Boulder, said at a briefing on the issue hosted by SciLine.
Although the CDC collects data on abortions, advocates on both sides consider that data inaccurate because states provide it voluntarily, and the largest state population-wise -- California -- doesn't report. Instead, they rely on data from the Guttmacher Institute, a pro-abortion rights organization that collects data directly from abortion providers. Guttmacher's latest data show that from 2011 to 2017 -- the last year in which these data were collected -- the annual number of abortions in the U.S. fell from 1,058,000 to 862,000.
Varying Reasons for Abortion Decline
"Some of the reasons that scholars think that abortion may be declining include improvements in the contraceptive method mix; people are using more effective methods of contraception now than they were in the past, including IUDs and implants instead of, say, condoms and oral contraceptive pills," said Stevenson. In addition, "there may be increases in self-managed abortion or increases in abortion stigma, both of which would depress the rates at which people have abortions in the United States."
"We've been seeing the numbers go down," Echevarria said. "I think part of that is there's more acceptance of women who may get pregnant when they're not married -- a far cry from what it was in 1970 or 1973," when Roe v. Wade was decided. She noted that the ratio of abortions to live births, which used to be about 1:3, is now about 1:5, "so that's telling you right there that more women are choosing to give birth."
At the same time, the number of restrictions on abortion has been increasing, with 106 restrictions passed by states in the first 9 months of 2021, according to Elizabeth Nash of Guttmacher; the number of restrictions -- which range from total bans on abortion as early as 6 weeks to laws targeting abortion providers -- surpasses the previous high of 89 restrictions enacted in 2011. And restrictions in one state have effects in other states. For example, since September 1, Texas has been enforcing a state law known as S.B. 8, which prohibits abortions after 6 weeks' gestation. As a result, abortion clinics in nearby states that don't have such laws are seeing an uptick in patients from Texas.
Ironically, this is even true in Mississippi, where the state's own 15-week abortion ban has been enjoined from taking effect pending the outcome in the Supreme Court. "The law in Texas has caused our facility to be very busy," Shannon Brewer, clinic director at Jackson Women's Health Organization, said at the CRR briefing. "The day that it went into effect, our phones were ringing from 8:00 [a.m.] until we closed, and about one-fourth of our patients are Texas patients, from that day up until today."
What will happen if Roe is overturned? States would each decide their own abortion laws, said Echevarria. "Legislatures today would have different opinions from the legislators from 1973, so that would depend on the will of the people at that point in time. So that's not necessarily a bad thing in our opinion, because that was taken away from the people."
Brewer sees it differently. "If they decide to do it, most of the Southern states are going to ban abortion immediately, and that's not going to be good for women -- [especially] the women who need it the most," she said. "Women will be forced to give birth or do something illegal."
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