Abortion rights advocates had feared this day for years, as the Supreme Court moved steadily to the right and states across the country passed laws limiting access to the procedure.
But the stark reality that the nation’s high court is poised to overturn Roe v. Wade, the 1973 decision guaranteeing a constitutional right to abortion, sent shockwaves across New England on Tuesday, stunning even Massachusetts leaders who had enshrined abortion rights in state law in anticipation of this precise outcome.
It was a “devastating but utterly predictable day,” US Representative Katherine Clark said in front of the State House, where leaders had gathered to decry the court’s draft decision, which was published Monday night by Politico.
While advocates sought to reassure patients that abortion remains legal nationally, and will remain so in Massachusetts, many said Roe’s repeal would bring an influx of women seeking abortions from states that are likely to prohibit them. After Texas enacted a law banning most abortions after about six weeks last fall, Massachusetts providers quickly began seeing patients seeking legal access.
“It is unfathomable that in a few months, 13 states will instantaneously outlaw abortion and another 13 states will follow thereafter,” said Rebecca Hart Holder, executive director of Reproductive Equity Now. “We just don’t know what that is going to look like on impact to our health care system.”
Twenty-six states are expected to prohibit abortion if a Supreme Court ruling allows it, leaving large swaths of the country without access. New Hampshire is now the only state in New England where abortion rights are not fully protected.
A recent analysis by FiveThirtyEight found that wait times for abortions soared in eight states surrounding Texas after a restrictive new law went into effect last September.
While supporters of abortion access were devastated by the prospect of Roe’s reversal, opponents said it was a legal victory years in the making. The opinion’s sharp language, written by Justice Samuel Alito, heartened those who had long voiced similar arguments that the consequential and precedent-setting rulings were frustratingly vague.
J. David Franks, chairman of Massachusetts Citizens for Life, said in a statement he found it “cathartic” to read.
“What we have wanted to say for decades in response to the shoddiness of Roe and Casey, we find expressed here in argumentation of great cogency,” he said. It is worth a look on its own merits.”
Although the court confirmed the draft’s authenticity, the leak of a confidential high court opinion left advocates — even those who would cheer its unveiling — uncertain how much to celebrate.
“Justice Alito’s draft decision is just that: a draft. We must all wait for the official ruling,” said Myrna Maloney Flynn, president of Massachusetts Citizens for Life. “However, we acknowledge that such a ruling would be a historic win for the pro-life movement, and a moment pro-life advocates have worked toward for 49 years — a half century that saw the tragic loss of 65 million lives as a result of Roe v. Wade.”
Abortion opponents had been working toward this moment for decades, building power and allies on the local and judicial fronts and, as they gained traction during the Trump administration, championing an ambitious array of laws in states across the country aimed at challenging and ultimately overturning Roe. The case being considered by the Supreme Court, Dobbs v. Jackson Women’s Health Organization centers on a 2018 Mississippi law that aimed to ban almost all abortions after 15 weeks.
But to those who have equated Roe with freedom for nearly 50 years, the reversal of that protection would set women back immeasurably and further widen gaping inequalities between genders, races, and the haves and have-nots.
“This is a worst-case-scenario come to life. If and when this decision takes effect, the consequences will be unbearable — and for many women, lethal,” Women’s March executive director Rachel O’Leary Carmona said in a statement. “That is no exaggeration. But it’s also no exaggeration to say that women will fight back like we always have.”
The Women’s March on Washington and cities across the country in 2017 was fueled in no small part by concerns that Trump’s inauguration would mark the beginning of the end of abortion rights. Trump had pledged during his campaign to appoint anti-abortion justices. The three appointments he made during his term cemented a conservative majority on the court that paved the way for the draft opinion.
Politico released the opinion on Monday night, reporting that a majority of the court had already voted to strike down Roe v. Wade, the 1973 decision that made abortion legal. The draft opinion rejected the logic of Roe entirely, saying abortion is not mentioned in the Constitution and is not protected under its provisions.
“Roe was egregiously wrong from the start,” Alito wrote. “Its reasoning was exceptionally weak and the decision has had damaging consequences.”
The opinion also rejects the precedent of Planned Parenthood v. Casey, a 1992 case that affirmed that states could not prohibit abortions before fetal viability but could, before that time, set regulations that do not impose an undue burden on the right to abortion.
Massachusetts and other states plan to support patients who may come to New England for abortion care their states refuse. Connecticut Gov. Ned Lamont said he will sign a bill just passed by both chambers that would protect providers and patients who seek abortion care in Connecticut from states that outlaw it.
Abortion rights advocates are also eyeing medication abortion -- a portable solution -- as the next wave of battle. During the pandemic, the Biden administration expanded the availability of prescription medicine that can be used in the early weeks of gestation to terminate a pregnancy, without a trip to an abortion clinic. Massachusetts lawmakers are proposing a bill that would require abortion medication to be dispensed on state college campuses, some of which are far removed from abortion clinics.
In Massachusetts, the Legislature may also boost funding for abortion this year. The House has adopted a budget that directs $500,000 to reproductive health care, including, for the first time ever, funding sent directly to three “abortion funds,” or nonprofits that help women pay for abortions.
In New Hampshire, Republican Governor Chris Sununu signed a law last year barring abortion after 24 weeks’ gestation in almost all circumstances, with a narrow exception to save a patient’s life. The law also created criminal penalties for medical providers who violate it and required an ultrasound at any stage of gestation.
Sununu is now expected to sign into law a measure that lifts the ultrasound requirement and allows exceptions for abortions after 24 weeks in cases of fatal fetal diagnoses.
But a Planned Parenthood spokeswoman bristled at Sununu’s statement suggesting that would “expand access,” noting that he signed New Hampshire’s first abortion ban in modern history just last year.
Sununu said he committed to make changes to the law to “to ensure that women have additional access and more flexibility to make health care choices for themselves. We are getting rid of the ultrasound provisions and adding provisions for fatal fetal anomalies – just like most other states have.”