Roe v Wade: What will happen to abortion rights under President Biden?

Save Roe – give now,” reads an online ad from Planned Parenthood that appears at the side of my screen with increasing frequency. It’s a Google programmatic ad that follows me round the internet, mainly because I do a lot of research on the issue of women’s reproductive rights for my job, but also probably simply because I fit the demographics of “female” and “based in the US”. Despite two years of living full-time in New York City, I still find it startling when commercials concerning medical issues appear: the ads for cancer drugs on cable TV; the schizophrenia story told by happy people riding horses that drops in between episodes of 90 Day Fiancé on YouTube; the lobbying efforts of reproductive health groups like Planned Parenthood, who currently face a crisis in government funding. The cancer and schizophrenia ads are consequences of America’s half-broken healthcare system, of course. The pleas for us to “Save Roe” come from a very different place.

Roe v Wade – the lawsuit that made abortion legal in the United States – has always been contentious, but perhaps not as contentious as Donald Trump thought. Comprehensive polling by Gallup has consistently shown that most Americans support the procedure being legal, even if many would like to see more limits on when it can be performed. The polling also shows that although a lot of Americans might identify themselves as “pro-life” – 46 per cent in 2020 – they are not as hard line as that label might imply. When their views are broken down, only 20 per cent said they want abortion to be “illegal in all circumstances”, a percentage which has stayed steady, bar two percentage points flipping back and forth either way, since records began in 1975. On a trip to Alabama in 2019, I saw some evidence of this convoluted viewpoint in the people I spoke to: “I’m not saying abortion is right – never quote me as saying abortion is right,” one rosary-wearing woman told me. “But sometimes young girls just get themselves in trouble. And they’re just not ready to be mothers, pure and simple.”

Parsing through those Gallup records from 1975 to 2020 tells us an interesting story: abortion views in the US haven’t changed much, except to have become slightly less liberal over time. In 1996, 56 per cent of people described themselves as pro-choice and just 33 per cent identified as pro-life. The fact that people are now more likely to identify with the pro-life cause is likely to be less to do with evolving views and much more to do with that very American issue: marketing. Right-wing anti-abortion groups like 40 Days for Life and Life Chain are often backed by wealthy donors and are excellent at marketing themselves. Billboards of smiling babies in the middle of cities and trucks parked outside reproductive health clinics offering “free, no-pressure ultrasounds” so pregnant women can “hear baby’s heartbeat” are central to this smiling warmongering. A pro-life university group in Alabama told me that they oppose abortion because they “care about women” and that society’s lack of support for new and expectant mothers is the “real problem”. Increasingly, groups of young people from Republican backgrounds choose to expand the definition of “pro-life” – itself a marketing triumph of a label for a group of people whose only defining characteristic was being anti-abortion – to include refugee rights and campaigning against the death penalty, in the hope of attracting more progressively minded compatriots.

The dark side of this kind of marketing is the eugenics conversation. Some anti-abortion groups specifically targeting black supporters during the years of Trump’s presidency have become increasingly vocal about the idea that abortion is a “black genocide” or a back-door eugenics conspiracy. At the root of this belief is the fact that abortion is more common in poorer areas, many of which have majority black populations. The fact that poorer people seek out abortion more often is true across the world, and most likely due to a lack of access to contraception as well as the financial constraints of having further children; and it’s worth bearing in mind that 60 per cent of Planned Parenthood’s clinics offering abortion are in majority-white areas. That hasn’t stopped Republicans on the campaign trail – including celebrated black Republicans Ben Carson and Herman Cain (who died of Covid-19 earlier this year) – claiming that reproductive charities have nefarious aims. In an interview with Fox News in 2015, Carson claimed that Planned Parenthood was founded to “control the population” because its founder, Margaret Sanger, was “not enamoured with black people”. During his presidential run in 2011, Cain wrongly claimed that most Planned Parenthood clinics were in black areas and that in “Margaret Sanger’s own words, she didn’t use the word ‘genocide,’ but she did talk about preventing the increasing number of poor blacks in this country by preventing black babies from being born”.

It’s not true that Sanger wanted to prevent black people from having children, but it is true that she was involved in the eugenics movement which had swept America and, shamefully, caught the imaginations of many in the country at the time. Sanger’s main argument was that people should be able to choose which children to have and when. She wrote that parents of all races should get that choice, and did do outreach into majority black areas like Harlem, writing in 1939 that “to give them the means of helping themselves is perhaps the richest gift of all. We believe birth control knowledge brought to this group, is the most direct, constructive aid that can be given them to improve their immediate situation.” Other racist quotes which are often attributed to her by anti-abortion groups – such as, “The mass of ignorant negroes still breed carelessly and disastrously, so that the increase among negroes, even more than the increase among whites, is from that portion of the population least intelligent and fit, and least able to rear their children properly” – are falsely attributed to her. The aforementioned quote, for example, was actually written in 1932 by W E B DuBois, the founder of the NAACP.

Nevertheless, Sanger’s flirtation with eugenics is highly problematic. A lot of her writings seem to imply that she saw disabled people as inferior, and her views about “helping” black families and poor white families were paternalistic and sometimes insulting. In July of this year, amid the Black Lives Matter protests and a long overdue reckoning by many organisations over racist legacies they had overlooked for too long, the New York Planned Parenthood clinic chose to remove her name from the building. “The removal of Margaret Sanger's name from our building is both a necessary and overdue step to reckon with our legacy and acknowledge Planned Parenthood's contributions to historical reproductive harm within communities of color,” said Karen Seltzer, the chair of the group’s New York board, at the time. “Margaret Sanger’s concerns and advocacy for reproductive health have been clearly documented, but so too has her racist legacy.”

open image in gallery

It’s clear that Planned Parenthood is not a racist organisation in 2020, but protests outside their clinics still repeat the lines stated by people like Herman Cain and Ben Carson. I myself have been accused of “supporting black genocide” outside of an abortion clinic in Queens, and approached by protesters who asked, “Are you Jewish? You shouldn’t be helping to create another holocaust.” Such shocking rhetoric became even more common during the years of Trump’s presidency, when each side calling the other “Nazis” became de rigueur, and Trump himself attempted to bolster his appeal to black voters by dedicating an entire night of the Republican National Convention to “the pro-life agenda”, platforming black Christian evangelicals while doing so. On the campaign trail, he spoke at length about delivering on his promise to put more conservatives into the Supreme Court, adding that he imagined Roe v Wade being overturned if he was handed a second term.

It’s important to remember, though, that a full-scale federal ban on abortion was never on the cards. Trump – and most Republicans – wanted to hand the issue back to the states, overturning an edict that made abortion a human right and instead allowing red-voting Bible Belt areas to bring in localised bans of their own. Few right-leaning Republicans, many of whom lean libertarian and like to wax lyrical about “freedom”, want the consequence of their anti-abortion agenda to be an absolute outlaw. Instead, they envision an America split down the middle, where some women are freer than others. Of course, in those low-tax Republican states where abortion could be banned in that scenario, no Republican seems to support extending state benefits or taxes to help support the young mothers forced to carry to term babies they cannot afford to bring up.

How realistic is that aim? Even with conservative justices like Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett – who repeatedly tried to make it harder to access abortion in her home state of Indiana during her pre-Supreme Court career, and made allusions to “overruling” Roe v Wade in a Texas Law Review article in 2013 – are far from guaranteed to pursue such a controversial effort. One of Barrett’s most recent discussions of abortion rights occurred in 2016 at Jacksonville University, where she said that she didn’t think Roe would ever be overturned in practice, but that “the question is how much freedom the court is willing to let states have in regulating abortion”. Stricter controls in southern states and more liberal ones in coastal areas is, again, how that would probably play out. But that would require a case to make it all the way to the Supreme Court before that, all the way being fought by the American Civil Rights Union, which helps tens of such lawsuits to be dismissed every year.

open image in gallery

Such state restrictions are already enacted by local lawmakers before an inevitable challenge by organisations like the ACLU or Planned Parenthood. In May, while most of the US was experiencing wide-ranging lockdowns and the coronavirus pandemic numbers skyrocketed, I spoke to a Texan couple who had recently been told that their much-wanted twins were “incompatible with life”. Melissa* and Joe* – who spoke to me under condition of anonymity because they feared possible violent reactions from anti-abortionists in their state — had recently been told the devastating news. It had coincided with a lockdown brought in by state governor Greg Abbott, an anti-abortion Republican who used Covid-19 as an opportunity to ban “elective procedures” in hospitals in the state, which included abortions. Melissa and Joe themselves were Republican voters who had cast a ballot for Abbott a couple of years earlier. They were generous to the governor, suggesting he must have made a mistake, but also exhausted emotionally and physically by the 24-hour round trip they’d ended up having to do under cover of darkness in order to access an abortion in the neighboring state of New Mexico. Because Melissa’s medical insurance only covered Texan hospitals and physicians, the trip also left them financially wiped out. Neither of them described themselves as political people previous to their experience, but both agreed that they now wanted their story to be told as far and widely as possible, because they’d come to realise, they said, that the issue of abortion was an issue of misogyny. “I valued the life and the quality and experiences of an infant I was going to have, and that’s why I made my decision. I didn’t want it to know only suffering,” said Melissa, when describing how she still wanted to be known as “pro-life”. “If this was a hot-button issue that involved a man’s body then it wouldn’t be politicised.” Joe agreed, saying that he voted Republican because he believed in personal autonomy, and had been aghast at the idea of politicians saying “they know better than doctors”.

Melissa and Joe’s experience underlines one important truth about abortion: that banning the procedure doesn’t stop it happening, but merely drives it underground. In October, Elizabeth Stone wrote for The Independent about her own abortion as a young student before Roe v Wade (which was passed in 1973). “I stood on a street corner in a city I’d never been to with five $100 bills in my pocket, while I waited to be picked up by someone I’d never met,” she wrote, adding that she feared her body would never be found if something went wrong. A week before, she’d read about the case of a woman’s body being left in her car for family members to find after a suspected termination gone wrong. Stone’s own abortion was medically straightforward, but still frightening. Eight states only have one abortion provider even in 2020, with many clinics having been shut down by Republican state governors and local politicians, meaning that women face the choice of expensive, exhausting travel – like Melissa and Joe — or, if that’s not possible, then home remedies or underground doctors. For women who live in these areas, a different ruling on Roe v Wade would make very little functional difference.

Now that Biden has won the election and the American people have rejected the idea of a far-right Trump second term, there will be less appetite to make changes to Roe, even as the issue simmers on in the background. And it’s also worth bearing in mind that Trump’s assumptions about conservative judges were fundamentally misguided. Nothing demonstrates this more than the number of lawsuits Trump himself has lost under the leadership of Rudy Giuliani and Jenna Ellis; many have been thrown out of state Supreme Courts by some of the most conservative judges appointed in years, and on 11 December, a controversial lawsuit brought by Texas and backed by Trump that sought to throw out the votes of battleground states was brought to a swift end by the now majority-conservative national Supreme Court. 

“The Supreme Court really let us down. No Wisdom, no Courage!” Trump tweeted in response, clearly surprised by a perceived lack of loyalty from his appointees. But conservative judges pride themselves on interpreting the law and Constitution “as it was written”; they are not bipartisan actors happy to push through every Republican agenda. In contrast to their liberal counterparts – who believe in making new, more appropriate-to-the-time laws as society changes – conservative justices on the Supreme Court prefer to interpret the law to the letter, and they did so in the Trump ruling. They are not business associates who make deals with presidents and, crucially, Trump lost all his leverage the moment he placed them in a seat for life. This failure to understand the motivations and modus operandi of the people he’d pledged to help ended up being a large part of his downfall, and will also be a massive stumbling block to achieving that Roe ban he always imagined might be a part of his legacy.

Because of their reticence to change the law – and the changed political atmosphere under soon-to-be President Biden – liberals can be cautiously optimistic about the preservation of Roe over the next four years. Indeed, some believe that there may even be scope to extend the rights of women in states where they are legally but not practically met. Deregulating the medication mifepristone – known commonly as the morning-after pill or Plan B — is the sort of small step for pharmaceuticals that would be a huge leap for womankind if Biden could achieve it. At the moment, there are restrictions on where and how one can obtain mifepristone which make it virtually impossible for women to access it; unlike in the UK and many other countries, it is not as simple as picking up the pill from a pharmacy or obtaining a prescription from a reproductive health clinic. The excuses for the regulations are medical, but the reason is clearly political; as pointed out by Greer Donley of the University of Pittsburgh Law School, much higher-risk drugs such as Viagra are freely available from pharmacies with a prescription, and mifepristone itself is deregulated if it’s being prescribed for any other medical condition. Even without control of the Senate, Biden could put mifepristone availability for abortion in line with pretty much any other prescription medication in the United States. If he was able to do that at the same time as reversing the Trump administration’s attacks on funding for family planning providers, he could revolutionise the landscape for women’s reproductive health under his presidency.

Of course, all of this is best-case scenario stuff – which feels strange to be engaging in after four years of Make America Great Again (Except For Anyone Who Isn’t White and Male). But there are encouraging noises from within the administration, a diverse new cabinet and a first lady with a good record on campaigning for women’s rights and the rights of underprivileged people in poor areas. If we were peering down the barrel of another Trump term, Roe v Wade could well have been toast. But voters rejected that, and most seasoned politicians know what that means. The Bill Barrs of this world may believe they have the divine right to support Trump in his evangelical cause no matter what, but most Republicans are ideological shape-shifters. Especially if the Democrats come out on top after the all-important Georgia runoffs in January, a much freer era for American women could be just over the horizon.