We all knew that the Supreme Court was determined to cancel Roe v. Wade, and with it erase the federal constitutional right to abortion. And yet, Friday’s decision in Dobbs v. Jackson Women’s Health Organization still feels like a kick in the uterus.
Those of us living in a blue state where abortion will remain legal for now may not feel the pain as sharply. But our role going forward is to be a savior state, one of a handful charged with preserving a pocket of reproductive freedom in America. No small task, so let’s get to work.
With a five-justice majority, the court struck down Roe v. Wade on the basis that “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional protection.” The Constitution fails to specify a whole host of antidiscrimination provisions that nonetheless are fully protected today — despite the fact that our so-called Founding Fathers deliberately excluded women and enslaved people from their obtaining full rights. In focusing so heavily on the original text, the majority’s reasoning significantly threatens additional constitutional protections that have been based on privacy rights case law for decades: access to contraception, freedom to marry, and decriminalization of homosexuality.
Justice Samuel Alito purports that those rights can be “sharply distinguishe[d]” from abortion, which he says poses a “critical moral question,” described in the Mississippi law as the destruction of “an unborn human being.” Yet the dissent by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, doubts that the court can “neatly extract the right to choose from the constitutional edifice without affecting any associated rights. (Think of someone telling you that the Jenga tower simply will not collapse.)” Indeed, the ground is shaking for a host of rights that the Constitution has protected for decades.
In the immediate moment, Dobbs paves the way for over a dozen states to ban abortion almost instantly, while another dozen will start scrambling to pass their own restrictions. Some of these laws will probably apply the concept of “fetal personhood” to confer full legal rights on a pregnancy from the moment of conception. Doing so will chill medical providers’ ability to provide unfettered health care for pregnant patients, probably exacerbating high rates of maternal mortality and morbidity and increasing racial disparities in health care. If voters elect a majority of antiabortion candidates — either Republican or Democrat — to Congress in the 2022 midterm elections, we may be looking at a federal criminalization of all abortion on the horizon.
Fortunately, the Massachusetts Legislature has recognized the importance of access to abortion as a fundamental right. Last December, in anticipation of this day, state legislators overrode Governor Charlie Baker’s veto, passing the ROE Act to expand access to abortion. Attorney General and Democratic gubernatorial candidate Maura Healy has pledged to continue her demonstrated commitment to protecting reproductive rights if elected. This month, New York Governor Kathy Hochul signed a package of exemplary bills into law, and like-minded leaders in blue and purple states — including California, Colorado, Connecticut, New Mexico, New Jersey, and Washington — are similarly working to shore up access to abortion. We need to support these leaders and vote to elect more champions for reproductive rights. Not every red state has to be turned blue, but it’s time to bring Republicans back to join us in the fight for our rights nationwide, as they did from the 1970s through 1990s.
Meanwhile, blue states can expect to see the arrival of tens of thousands of abortion migrants seeking services and needing assistance. For far too long, accessing abortion has depended on an individual’s resources and an ability to overcome barriers to health care. Many young women and teens — those in rural areas, living in poverty, and with physical impairments — have been experiencing this “post-Roe” world for quite some time. Abortion restrictions, combined with structural racism, have meant that the adverse impact has fallen disproportionately on women of color.
Abortion funds and grass-roots organizations nationwide are already set up to assist with travel and the cost of food, accommodations, and child care. A proposed amendment to Massachusetts’ state budget would allocate up to $2 million to state abortion funds. It’s an important step and a necessary commitment of public funds. We need corporate, religious, and community leaders and allies to join us in speaking up in support.
Before Roe legalized abortion nationwide, in 1973, women and their allies often took matters quite literally into their own hands to provide safe abortions without stigmatization. Today the arrival of medication abortion makes self-induced abortion far more feasible, and safe. For those who are unable or unwilling to travel, several organizations exist to help provide medications to safely self-induce abortion at home. Other organizations can provide legal defense services for those prosecuted for self-inducing or for miscarriages.
Massachusetts is well-situated to be a leader in reproductive health care policy innovation. The state already allows telemedicine for abortion services. A key initiative is pending that would permit medical providers to do so across state lines and reach red state patients desperately needing services. To expand access to brick-and-mortar services within the state, university health care facilities and urgent care centers that have proved so vital and accessible to so many during the pandemic should provide medication abortion. Our many world-class hospitals should open their doors to a wider range of abortion patients, including second-trimester abortion services. The mental and physical health of a pregnant person must always come first in Massachusetts. Any facility that provides MassHealth recipients with abortions must be reimbursed at a higher rate.
The end of Roe is the start of a new era of expanded rights within Massachusetts. The Beyond Roe Coalition has a created a comprehensive policy agenda that can serve those in the Bay State and make the state a hub for preserving reproductive freedom during this dark time.
Allowing individuals to determine whether, when, and with whom to have a child is a basic human right. It is also politically popular nationwide — 60 percent of American adults support legal abortion, according to a new NPR/Marist poll. While the Supreme Court has turned back the clock on our federal constitutional rights for now, strong activism by those in Massachusetts and allied states will continue to provide women access to safe, legal abortions, and the right to do so.
Julie F. Kay is a human rights lawyer who successfully argued against Ireland’s ban on abortion before the European Court of Human Rights. She is coauthor of “Controlling Women: What We Must Do Now to Save Reproductive Freedom.”