Roe v Wade: Is the US on the cusp of overturning abortion rights?

At the Pink House in Jackson they are preparing for what now seems the inevitable.

The flamingo-coloured building is currently the last clinic in the state of Mississippi providing abortion services.

It is also at the epicentre of the court case which, a leaked draft supreme court document suggests, will be the catalyst for the overturning of the landmark ruling from 50 years ago that made terminations legally available across the United States. The final court decision in late June or early July will determine whether the 1973 Roe v Wade ruling, which provided for a constitutional right to abortion, will survive.

In the meantime, the owners and management at the Jackson Women's Health Organization – as the Pink House is formally known – are making plans to move to New Mexico if necessary.

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Mississippi is a strongly pro-life state. Campaigners and politicians have for some years been seeking to chip away at existing arrangements and make the provision of abortions more difficult. There were requirements introduced for a 24-hour waiting period prior to an abortion being carried out. There was also an obligation put in place on doctors to tell a woman that having an abortion would increase the risk of breast cancer – although those involved in carrying out terminations argue that this is not the case and it is not supported by the American College of Obstetricians and Gynaecologists.

Mississippi introduced a ban on terminations after 20 weeks in 2014. However in 2018, the state went further and passed legislation known as House Bill 1510 which aimed to prohibit abortions after 15 weeks’ gestation.

This was challenged legally and ultimately made its way to the US supreme court in the case known as Dobbs v Jackson Women's Health Organization. The document leaked to US news organisation Politico this week maintained it was following deliberations in this case that the justices voted to overturn the Roe v Wade ruling of 1973.

Constitutional protections

Mississippi is also one of a number of states to have what are known as “trigger laws” in place which will essentially ban most abortions from being carried out if the Roe v Wade constitutional protections are removed. There are also earlier laws on the books against abortion that predate the 1973 ruling.

Abortion-rights advocates stress that at present the procedure remains legal and terminations continue to be carried out.

However, the Pink House’s days may well be numbered.

In Jackson, as elsewhere across the US, clinics providing terminations have been the scene of demonstrations and protests for years.

Outside the Pink House in Jackson earlier this year, The Irish Times witnessed a usual day. The clinic is located on a main road, but the car park opens on to a side street. The anti-abortion activists stand on that street and try to dissuade women from entering the premises. They may not cross into the property themselves, but women driving or being driven to the clinic must pass them.

On that day, there were three or four men on the road outside.

A young woman was in the car park. She had driven eight hours from Texas, which had introduced very restrictive abortion rules. Another woman had arrived at 6.30 that morning, having driven three hours from the Gulf Coast.

Outside on the street a man paced up and down: “Don’t murder your child today, Ma’am. You have murder in your heart. You know that to be true. You need to repent because the kingdom of God is at hand.”

"Turn to Jesus Christ today. Why are you here to murder children? Why are you here to do this wicked thing? Come onto Jesus Christ. You are not a victim. You are choosing to do this of your free will. Your own will and desire to be selfish.

“I am pro the death of murderers. Put murderers to death.”

Sidewalk counsellors

In the parlance of the American anti-abortion movement, the people who try to dissuade women from entering the clinic are known as sidewalk counsellors.

I spoke to one, a man in a grey jacket wearing an army medical corps baseball hat – not the individual who was shouting – who identified himself as David Lane. He said they were there to intercede on behalf of the child – "the little baby who cannot talk".

He said the sidewalk counsellors invited women planning to enter the clinic to go instead to another facility, just around the corner, where they are provided with an ultrasound and given details about child development and growth. He said there were people who may want to adopt children.

He also claimed about 85-90 per cent of women who went to the nearby pregnancy advice centre, “after they see an ultrasound, and see the feet and legs moving, will not have an abortion”.

Lane said he has been campaigning on the street against abortion for 39 years all across America. He had been a pastor for 40 years and said he went to the gate of the clinic every day he knew it was open.

In the aftermath of the leaked supreme court draft ruling, Lane still had doubts that it would lead to the closure of the Pink House. However, he told US media that if it did, he would “probably get to fish a little bit”. He also suggested he might begin street preaching or working with orphanages .

Clinic escorts

On the other side of the gate from the anti-abortion activists at the Pink House were the “defenders”.

They are the clinic escorts who, on a shift basis, seek to shield women entering the premises from the anti-abortion activists on the road outside. All are volunteers and wear rainbow-coloured tops. Some are students, others waitresses who stand outside the pink building in their spare time.

The Irish Times spoke to one of the defenders, Kim Gibson, who had been carrying out this role since February 2017. She said the primary reason she was there was that patients "do not deserve to be harangued by strangers here".

“It happens at more clinics than just this one. People have no idea this is going on and the general public generally has no idea what happens outside these clinics. This is also where the rubber meets the road with regard to the legislation of religion. This is just the beginning. Christian nationalism is a thing. This is where it is starting . . . The legislation is starting here because it is the easiest to get passed.”

Amplify voices

On the morning we visited the clinic, the protester outside was just shouting. Gibson said, on other days, the group on the street had devices to amplify voices and sounds. “Normally we have a PA speaker out there. A gentleman comes and does a show, as we call it, at 8.30 in the morning; a 1,200-watt speaker is pointed at the clinic and it goes on for half an hour.

“If it is raining, we get bullhorns, sometimes both.”

Speaking to The Irish Times this week, after the leak of the draft ruling, Gibson said she feared any striking down of Roe v Wade would not mean the end of the anti-abortion campaign. “This is the first thing, not the last thing.”

She said there were already suggestions in Missouri that it should introduce a ban on women travelling to other states for abortion where they were legal. Other social rights could also be in jeopardy.

She said women in Mississippi would face having to go hundreds of miles to access abortion services.

Gibson said people with money, means and privilege would be able to travel, but that poorer women would face difficulties, trying to secure abortion pills – if they were available or legal – or having to carry on with a pregnancy. “It is shameful and tragic what is happening,” she said.

Jameson Taylor was involved in drafting House Bill 1510, which sought to ban abortions in Mississippi after 15 weeks.

Attempts in future

He told me this week he did not believe there would be attempts in future to ban women travelling for abortions. He questioned whether that would be constitutionally permissible.

“Instead, I believe voters are going to decide what abortion policy should be in their state. People can vote on those or can also move to states where they prefer the political environment. We are going to see a shifting as we are already seeing on other issues, for instance relating to tax policy or second amendment [gun rights] issues. People are going to continue to segment themselves, so to speak, in states where they agree with the political environment. Mississippi is well-known as one of the most conservative traditional states in the country. For some people that is attractive, for others it is not.”

Taylor, who is president of the Center for Political Renewal in Mississippi, predicted that if the supreme court struck down Roe v Wade completely, the state governor would convene a special session of its legislature.

Essentially, this may come down to deciding whether the pre-Roe prohibition on abortion or the 2007 trigger law, which banned terminations except in cases of rape or a threat to the life of the mother, should come into effect.

The draft supreme court opinion suggested in future the issue of abortion should be decided by elected politicians. And in some parts of the US, particularly in the south, local legislatures have been racing to put anti-abortion legislation on the books in anticipation of the forthcoming ruling by America’s highest court.

In recent months, there has essentially been a type of arms race between states controlled by Republicans to put in place increasingly strict measures.

Six weeks

A Texas law banned abortion at six weeks and put enforcement into the hands of civilians. It offers the prospect of $10,000 rewards for successful lawsuits against anyone – potentially from a taxi driver to a doctor – who “aids or abets” a woman who gets an abortion once foetal cardiac activity can be detected.

Earlier this week, a similar law was introduced in Oklahoma and another is pending in Idaho.

Oklahoma also put in place legislation, which is expected to take effect this summer, to make performing or attempting to perform an abortion, except in a medical emergency, a felony punishable by a fine of up to $100,000 or a maximum of 10 years in state prison, or both.

However, there are concerns among liberals the draft court document could, if confirmed, ultimately see a nationwide ban on abortion – including more progressive parts of the country such as New York and California – being introduced by the US Congress if Republicans regained control of both houses as well as the presidency.

The Washington Post reported earlier this week that conversations about such a plan had taken place already between activists and conservative politicians.

US president Joe Biden warned that if the final court decision was along the lines of the draft, there could be major implications for other social rights that were not specifically set out in the constitution but were deemed to flow from the right of privacy including same-sex marriage and birth control. Biden said the draft, if it was confirmed as a final ruling, would represent "a fundamental shift in American jurisprudence". He said the rationale used by the supreme court justice who wrote the draft, if upheld, "would mean that every other decision relating to the notion of privacy is thrown into question".

Ring-fenced

The author of the draft document said its findings should be ring-fenced to abortion and not apply in other areas. However liberals and Democrats are not so sure and worry about what might happen in the future.

For Republicans and right-wing groups, a final supreme court ruling overturning Roe v Wade is an outcome they have been strategising and working towards for decades. The plan involved having sufficient conservative judges on the supreme court and then finding an appropriate case to bring before them.

Some liberals believe the plethora of anti-abortion laws introduced by Republican-controlled states were in part designed deliberately to ensure they were legally challenged. Some would then find their way eventually to the nation’s highest court which would then have an opportunity to revisit “Roe Wade”.

By chance and as a result of political manoeuvring by Republicans – the party refused to even consider a nominee put forward by Barack Obama in the final year of his term and then rushed through a conservative justice even after early voting had commenced in 2020 – Donald Trump had the opportunity to propose three justices for the supreme court.

Firmly conservative

This meant the court is now firmly conservative.

Biden’s options to respond to any overturning of Roe v Wade would appear to be limited. The existing senate has a razor-thin Democrat majority and the president does not have the votes for new legislation to guarantee abortion rights.

The Biden administration could try to provide greater access to the abortion pill or to allocate funding to facilitate poorer women in Republican states travelling elsewhere for an abortion. However, any measures that are proposed will undoubtedly face lengthy challenges by Republicans at state level.

Biden suggested people should vote for more pro-choice politicians who would allow for national abortion legislation to be introduced. However, it remains to be seen whether the actual or threatened removal of 50-year-old abortion rights will have a galvanising effect on voters to get them to go to the polls in November and support the Democrats in sufficient numbers.

Vice-president Kamala Harris certainly appeared to urge voters unhappy at any overturning of abortion rights to focus their anger at Republicans. "Some Republican leaders are trying to weaponise the use of the law against women. How dare they. How dare they tell a woman what she can and cannot do with her own body? How dare they try to stop her from determining her own future? How dare they try to deny women their rights and their freedoms?"

Oppose overturning

Polls suggest that a majority of Americans oppose overturning Roe v Wade. Democrats, who have been struggling in the face of soaring inflation, hope any new restrictions on abortion will lead to a backlash against Republicans that will improve their fortunes.

Republicans are aware they may be on the cusp of delivering for their conservative and evangelical supporters.

However, that base does not represent the majority of the country and that in itself poses political concerns.