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Legal Actions We Could Take, Didn’t Take, and Can Still Take

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This blog series offers accessible explainers on reproductive health, policy, politics, and social movements. Each post focuses on one aspect of reproductive health and provides an overview of the history, current conversations, and research on the topic. 

From the author: From environmental movements to the criminal legal system to new age instagram, reproductive health and politics covers a lot of ground! It is a full time job staying up to date and I should know because it’s my full-time job! I know not everyone can spend hours a week reading up on reproductive health, so I’ll boil it down to 800 words or less so you can get and stay in the repro know.

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Legal Actions We Could Take, Didn’t Take, and Can Still Take

Transnationally, forced pregnancy is recognized as a human rights violation. The failure of a nation to allow safe, legal abortions is a failure of human rights. Roe established abortion as protected under the right to privacy. Casey, while expanding legislature’s ability to restrict abortion, upheld the underlying right to an abortion. Roe used a trimester system, preventing legislators from restricting the procedures during the first two trimesters. Casey removed the trimester system and instead allowed for restrictions much earlier in the process but prohibited outright bans. As long as abortion depended on court rulings alone, it remained vulnerable to being overturned (which it was in Dobbs). The Dobbs ruling did not make abortion illegal. It did remove abortion as protected by the right to privacy. This means that legislatures at the state and federal level can now ban abortion at any stage.

Could we make Roe law?

You may have heard the phrase “Codify Roe” recently but the idea is not a new one. To codify means to make something into law. While the courts forbid legislators from banning abortion, Congress could have at any time made abortion a federally protected procedure. A Congressional act could have made Roe into law that would apply to all 50 states. Casey (1992) throws a wrench in that idea. Roe prevented law makers from “placing an undue burden” on pregnant people seeking abortion. Casey replaced undue burden with a much broader term “rational basis.” For the full protections of Roe to be made into law Casey would need to be challenged. Protections for abortions at the earliest stages of pregnancies and protections for contraceptives can be enshrined in law under the current conditions.

So why haven’t we passed any laws protecting abortion at the federal level? In the public imagination Roe was lionized as an established and untouchable precedent, those seeking total abortion bans were viewed as fringe. This view of Roe was inaccurate as Casey proved. There were activists and doctors sounding the alarm after Casey but the public did not mobilize the way we saw after Dobbs. Many counted Casey as a win for abortion access. Beyond the courts, state legislators have chipped away at abortion access since the Roe decision.

What’s in our way?

Casey allowed non-medical/evidence-based restrictions on abortion. Anti-abortion politicians introduced restrictions with the express purpose of making abortions difficult or impossible to obtain. Clinics providing abortions were targeted and subjected to intense scrutiny and regulations—far beyond those necessary for a medical facility—such as specific hallway widths. Other health clinics of similar sizes were not subject to these additional regulations. These burdens caused clinics to close or reduce operations in some states. 

Some states are taking legislative steps to protect abortion but other states are going beyond banning abortion to surveilling bodies capable of pregnancy. Proposed surveillance measures include tracking out-of-state travel, period tracking apps, investigating miscarriages, and accessing social media and text conversations for references to abortion. People who menstrate are deleting period tracking apps and expressing concerns about reporting their periods to healthcare providers. People seeking care for miscarriages (sometimes refered to as spontaneous abortions) are being denied or receiving delayed care because of new abortion policies. The level of surveillance necessary to enforce an abortion ban is incredibly invasive and modern technology is enabling these invasions of privacy.

What can we do now?

Locally, prosecutors can agree not to prosecute abortion and miscarriage. Calling on local officials to protect your community by refusing to surveil and criminalize pregnant bodies can protect people in states hostile to abortion care. Electing local and state officials who support abortion rights and the right to privacy is also critical. State legislators can protect abortion care at the state level. You can also call your congressional leaders and demand action on abortion care.

While Dobbs and Casey may limit federal interventions and legislation may go to the courts, it is important that we continue pushing for national level protections. President Biden can issue some executive orders, which would likely be challenged in court. He could, for instance, expand the Supreme Court. This would be a drastic action but it is allowable under the law. The size of the court is not determined by the Constitution and FDR proposed expanding the court when he was attempting to establish the New Deal. The threat of court packing was enough to reduce resistance to the New Deal which ultimately became one of FDR’s crowning achievements.

Beyond the government, private companies are turning over conversations and data (like Facebook messages to use as evidence in abortion cases). Using encrypted messaging or staying away from social media and apps that sell data may provide individual level protection, but lobbying for better privacy online would provide blanket protections. Dobbs does not signal the end of legal options, there are still many ways to protect abortion care in the U.S. beyond voting in national elections.

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Elle Rochford

Dr. Elle Rochford is a Researcher at the Center for the Study and Prevention of Gender-Based Violence at the University of Delaware. She also hosts Proofing and Lies, a social science podcast covering a new topic and new baking project every other week!