No, Roe Won’t ‘End This Week’ — And That’s a Bad Thing

This week the United States Supreme Court will have to make a decision that will have a profound effect on the state of abortion access in the country. And some – like the progressive news outlet ThinkProgress – have declared it to be the possible death of Roe v. Wade.

It won’t be. But that’s not necessarily a good thing.

The Fifth Circuit Court recently ruled that the state of Louisiana can now allow a pending abortion regulation to go into effect: a TRAP — Targeted Regulation of Abortion Providers — bill that will close at least two of the three remaining clinics in the state. The legislation requires that abortions only be performed by doctors with admitting privileges to a hospital within 30 miles of the clinic.

The law was passed prior to the 2016 ruling in Whole Women’s Health v. Hellerstedt, which declared that admitting privileges offered no real medical advantage and instead are used to limit abortion access for by shuttering clinics.

But despite that fact, Louisiana continued to push for an appeal of its own law, and the Fifth Circuit obliged. In a 2-1 decision, the court ruled that there isn’t any indication that Louisiana would be as impacted by the law going into effect as Texas was expected to be, so the injunction on it should be lifted.

Essentially, the court ignored the precedent set by SCOTUS just two years earlier, hoping for another shot at overturning the Texas case.

And yes, that could feasibly happen. But if it does, that’s not “the end of Roe” — and to claim as much does a disservice to those who are most impacted by onerous and burdensome anti-abortion laws.

Even ThinkProgress writer Ian Millhiser admits that the headline –  ”The Supreme Court May Kill Roe v. Wade As Soon As This Week“ – is overblown:

Yes, the court is very unlikely to hand down an opinion this week which uses the words “Roe v. Wade is overruled.” But…When the court refuses to enforce its own decision, that will send a clear signal to lower court judges throughout the country that they are free to uphold restrictions on abortion.

That may very well be true — and likely –  but it still doesn’t mean that any states will make abortion completely illegal, which is what Roe v. Wade is about.

When Roe isn’t overturned this week — and it won’t be — people are going to breathe a sigh of relief and forget about the crisis for the most part. After all, they won’t directly see the impact of abortion becoming mostly inaccessible for all but the most privileged of patients.

What Millhiser suggests, though, is exactly what many of us expected once Kavanaugh was put onto the bench: Roe would stay intact — and there would technically still be a legal right to abortion — but states could limit how that abortion is obtained by limiting gestational limits to the point where a termination is impossible or closing all clinics so one can’t be obtained in the state.

A person would still have the right to an abortion, as guaranteed by the Constitution. However, a state would not have to guarantee access to an abortion; they just would not be allowed to make it completely illegal.

In my opinion, that “ghost-Roe” landscape would actually be the worst outcome possible if we ever want to see abortion be legal and accessible for all people, regardless of race, income or location. At this point, we need Roe to be overturned if we ever want to have true access for all people and not just the privileged.

Roe v. Wade is in tatters, and the only way people will recognize this reality and come up with a better frame for legal accessible abortion is when abortion becomes is visibly unobtainable.

Basically, privileged white people have to hurt, too — and that’s only going to happen when states can ban abortion completely.

In many ways, it’s ironic that it would actually be in the abortion rights movement’s best interests to see Roe overturned. Sadly, however, it really is — and we probably won’t be waiting too long for this to happen, either.

While admitting privileges laws may be reversed as soon as this week, that’s by no means the only abortion restriction poised to be heard by the Supreme Court. And the number of cases pending means that the bench can essentially choose for themselves when they want to take up a different abortion case and end Roe for good.

The odds are strong that they will not do so before the next election, given that the GOP knows reversing Roe will lose them the White House — and probably the Senate, too. But after the next presidential race, Republicans will push the courts to move –  and either kill it in their victory, or kill it in their defeat.

And honestly, that’s a good thing. The patchwork quilt of access to abortion that Roe has left is neither workable nor just.

Photo credit: Robin Marty/Flickr

65 comments

Vincent T
Vincent T1 months ago

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Ingrid A
Past Member 1 months ago

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Anna R
Beth R2 months ago

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Louise A
Louise A2 months ago

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Louise A
Louise A2 months ago

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Emma L
Ellie L2 months ago

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Barbara S
Barbara S2 months ago

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Dr. Jan H
Dr. Jan Hill2 months ago

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Jan S
Jan S2 months ago

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Maria P
Martha P2 months ago

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