How the Anti-Abortion Movement Used the Progressive Playbook to Chip Away at Roe v. Wade

“The attack on Roe has been decades in the making—and its successes owe not just to the strength of the conservative anti-abortion movement, but to the progressive playbook that achieved breakthroughs on civil rights, gay marriage and even abortion.

Much like the civil-rights activists of the past, abortion foes have pursued a long-term strategy that stretches far outside the courts. It depends on grassroots political change as well as legal challenges, and on the tidal push-and-pull between politics and the law at the highest levels.”

“Efforts by anti-abortion activists at the state and local level also reflect the use of a strategy that has already proved successful for gay rights advocates—one that focused on changing local laws, one step at a time, to make the values written into an earlier case appear to be out of step with contemporary constitutional law as well as public sentiment.”

“The current focus on “viability”—the question at the heart of the Dobbs case—is a new step in this politics of repudiation. In Roe v. Wade, the Court has held that there is a right to abortion until fetal viability, which now falls around the 24th week of pregnancy. Advances in neonatal care might move up the date of viability somewhat, but until now the point has held: Any future limits on abortion right would have to observe that line in the sand. The Court has preserved this “viability” line even as it repeatedly tinkered with abortion rights in response to politics.
To chip away at the “viability” norm, states have rushed to ban abortions much earlier in pregnancy—the Mississippi law now before the Supreme Court prohibits the procedure a full eight to nine weeks before viability. Georgia recognizes fetal personhood at six weeks. Alabama has sought to ban abortions outright, regardless of gestational time. Anti-abortion activists then point to all these moves as evidence that the viability norm encoded in Roe, just like the sexual-behavior norm encoded in Bowers, has now become an outlier—a relic of a time when American beliefs around abortion were far more permissive.”

“By flooding the field of action with abortion restrictions based on different standards over the years, abortion opponents have forced courts to wrestle with difficult and often murky medical questions, and given judges with more favorable ideological leanings maximal opportunities to revisit legal rules and frameworks. One successful wave of post-Roe anti-abortion activism assailed the logic of the trimester framework, a critical part of the original Roe decision that deemed most restrictions in the first trimester of pregnancy unconstitutional. In the most important Supreme Court abortion case between Roe and Dobbs—Planned Parenthood v. Casey, in 1992—the Court threw out the trimester framework but preserved the viability line as an essential component of the right to choose.”

“In Dobbs, the renewed attack on viability sets the stage for an end game. Viability has long been in the crosshairs because abortion foes see it as a potential weakness in the Roe precedent—philosophers and bioethicists have sometimes questioned its logic. The Supreme Court could have dodged the fate of viability in Dobbs, but instead they decided to tackle it head-on: In fact, they narrowly chose to consider only the question of whether pre-viability bans are unconstitutional. That means that if the Court wants to uphold Mississippi’s law, the justices must get rid of at least part of Roe. Even if the justices in Dobbs do not openly repudiate a woman’s right to choose, Roe could be fatally weakened.”

Will at-home abortions make Roe v. Wade obsolete?

“Biden’s pledge to “follow the science” when it comes to public health is under scrutiny as medical experts argue — citing new data gained during the pandemic — that administering the abortion drugs remotely is safe and effective.

Should the federal rules get rewritten, someone in, say, Arkansas, could have a video consultation with a doctor in Massachusetts or even the UK and then receive the pills by mail. Even if red states moved to ban their importation, enforcement would be nearly impossible.

“It takes the fight out of the clinic setting into individual people’s homes,” explained Alina Salganicoff, the Director of Women’s Health Policy at the Kaiser Family Foundation. “That becomes much more difficult to regulate and could potentially broaden access.”

Women’s health and advocacy groups stress, however, that the pills are not a panacea. For one, they can only be used safely in the first 10 weeks of pregnancy — a narrow time window during which many people are not yet aware that they are pregnant. Additionally, taking the pills in a state that has banned them could be legally perilous, discouraging people from seeking medical help if they have a complication.”

“Medication abortion relies on two pills — misoprostol, which is lightly regulated, and mifepristone, which has been more tightly regulated by FDA since its introduction in the market decades ago.

Yet mifepristone “has very few risks at all,” argues Villavicencio. “It is more safe than over-the-counter medications like ibuprofen and Tylenol. We know this medication can be safely administered via telemedicine because we’ve studied it.”

ACOG, along with the American Medical Association and other leading medical groups, has been lobbying the Biden administration and arguing in court that the federal rules for dispensing the pills should be loosened. Their push has been echoed on Capitol Hill, where Democratic lawmakers have urged Biden to allow telemedicine abortions both during the pandemic and beyond.

But the decision still presents a political quandary for Biden, who until recently was relatively conservative on abortion for a Democratic politician.”