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Are Reproductive Rights Safe?

by Rosie Spinks

December 19, 2016

LET’S ADDRESS one of the biggest knots in our collective uterus since the  2016 election: Will Roe v. Wade be overturned, seriously jeopardizing the right to a legal abortion in the United States? President Donald Trump — along with aggressively anti-choice Mike Pence as his vice president — was clear all along in his plans to fill the open Supreme Court seat with a justice who would vote to reverse the ruling, remanding a woman’s constitutional right to privacy under the 14th Amendment. And Justice Gorsuch seems to be just that, meaning such a rollback is possible, but there are a number of obstacles standing in the way.

The court, as currently constituted, believes that any burden on reproductive access must serve to improve women’s health — and not act as a mere deterrent.

For starters, Gorsuch replacing the late Antonin Scalia still leaves the court with a 5-4 majority in favor of reproductive rights. In 2016, the court upheld those rights with a 5-3 ruling in the landmark case of Whole Woman’s Health v. Hellerstedt, reversing a series of Texas laws that severely restricted access to abortions. The decision marked a highly significant interpretation of the rights protected by Roe v. Wade, according to Paula Abrams, a constitutional law professor emerita at Lewis & Clark Law School in Portland, Oregon, who specializes in reproductive rights. This ruling indicates the court believes that any burden on reproductive access must serve to improve women’s health — and not act as a mere deterrent. Therefore, any attempt by Congress to restrict abortion, should it be legally challenged, will be judged by that existing standard. “Take heart in the strong precedent established by Whole Woman’s Health,” Abrams said. “The decision comes out strongly protective of women’s reproductive health, and it would be highly controversial, to say the least, for the Supreme Court to so rapidly depart from the precedent established in a decision of this magnitude.”

The circumstances become more precarious should another justice either retire or die during Trump’s term. The average age of a Supreme Court justice is 70.4 years, meaning there is a morbid reality we must confront, as the loss of another justice could conceivably put the court in a position where Roe v. Wade could be argued again. But should this happen in the second half of Trump’s term (after the 2018 midterm elections), there’s no guarantee a different Senate makeup would approve such a judge. Furthermore, there would have to be an apt case that directly challenges Roe v. Wade and four justices would need to agree to hear it.

You might take solace in the fact that the Supreme Court is still held to the same ethical and judicial standards it always has been. By design, the Supreme Court was not intended to be a political institution. Overturning its own precedents to cater to the whims of an unconventional president and a raucous national mood would undermine the court’s legitimacy and legacy.

WHAT ELSE IS ON THE VAGENDA?

The United States already trails behind other developed nations in regards to women’s reproductive health, but as Vice President Pence’s gubernatorial history shows, things could get worse. As governor of Indiana, Pence signed eight anti-abortion bills into law in less than four years, including legislation that denied termination in cases of fetal anomalies and prevented private insurance from covering the procedure, unless it was a case of incest, rape, or the woman stood to lose her life.

Trump and the GOP’s attempts for repealing the Affordable Care Act have so far failed, but that doesn’t mean they won’t keep trying. Should it happen, the cost of contraception and other preventive services (cancer screenings, mammograms, Pap smears) could skyrocket.

WHAT ABOUT (AFFORDABLE) BIRTH CONTROL?

A more urgent concern on women’s minds has been the fate of no-cost contraception, which under the ACA was a huge step forward in terms of improving access to adequate reproductive health care. According to Planned Parenthood, repealing this provision of the law — as Trump claimed he would do on Friday, Oct. 6, 2017 — would result in 55 million women losing these preventive services, which also include STI tests and cancer screenings.

In the meantime, the Center for Reproductive Rights recommends the online resource bedsider.org for finding local birth control options. Other activists say stocking up on the morning-after pill, which can be purchased over the counter and has a shelf life of several years, is a prudent move in case it’s not as readily available or costs rise in the coming years.

WHAT ABOUT PLANNED PARENTHOOD?

The reproductive health organization has seen its donations and volunteer network dramatically increase as a direct result of Trump’s election. Though the looming threat to public funding from a Republican Congress — 43% of Planned Parenthood’s financial backing comes from the government — the organization has remained faithful and steadfast in its ability to defend itself. “We have seen time and time again that when access to care is under attack, our supporters stand up and fight back,” a spokesman told us.

Updated on 10/6/2017: Update to include new information about Trump’s intentions to rollback the ACA coverage of birth control and other updates that took place in 2017. Illustrations by Ariel Roman.

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Are Reproductive Rights Safe?