A post-Roe world is likely to be a hellscape of endless battles, unrelieved uncertainty, and above all peril for women.—Ed Gilgore, New York Magazine (5/26/19)
Sometime in 1970, Susan Struck sought help from the American Civil Liberties Union. She had been discharged from the Air Force because she, incredibly enough, had refused to abort her fetus. Ironically, military hospitals were the only place where abortions were allowed. Presumably and absurdly, this rule was designed to protect military “readiness.”
A young attorney named Ruth Bader Ginsburg took Struck’s case, and she argued that her 14th Amendment right to equal protection under the law had been violated. The Air Force, she maintained, had infringed on Struck’s right to be a mother, and it would not think of denying a male the right to father a child. Ginsburg held that the same argument would apply to a pregnant woman who chose not to give birth.
In 1972, the Supreme Court agreed to hear Struck’s case, but the Defense Department changed its policies in the face of losing an argument that most viewed as indefensible. Ginsburg deeply regretted not being able to try a case that she thought would have been stronger than Roe v. Wade.
Now with Amy Coney Barrett replacing Ginsburg on the Supreme Court, there is a real fear that Roe will be overturned. In that case pregnant women with means could travel to states where abortion was still legal. Ginsburg predicted that it would be “poor women who would suffer,” and be forced to bear children that they do not have resources to support.
In his article “A Post-Roe America Would Be a Never-Ending Nightmare,” Ed Kilgore writes: “Are red state women just out of luck forever, unless they literally move like war refugees? Unintended childbirth will jump to historically high levels. Abortion bans would exacerbate the already unaddressed issues of maternal mortality and child mortality.”
If Roe is overturned, Sen. Elizabeth Warren will propose a national abortion law that would protect a woman’s right to choose. Passing this bill, however, would require the elimination of the filibuster and convincing pro-life Democratic Sen. Joe Manchin to support it — two big obstacles.
Another option to bolster equal liberty for women is to ratify the Equal Rights Amendment. Ironically, the ERA was initially defeated in part because of the blacklash against Roe, but now it might serve to preserve abortion rights.
Most people do not know that the ERA was first proposed in 1923, and Republicans were the first to support it at that time.
In 2019, Virginia became the 38th state to vote for ERA ratification and finally secure its passage. Early last year, citing the fact that the Constitution does not place a time limit on passing amendments, the House passed a bill recognizing all affirmative votes after 1982, and rejecting the attempts of five states (Idaho among them) to rescind their ratification. The bill will now go to the new Democratic Senate, but it would also require the elimination of the filibuster for passage.
The current consensus among legal scholars is that Roe will not be overturned, and a recent survey showed that 70 percent of those polled were against repeal. Despite this, many restrictions to abortion rights are now before the courts. Since 2011, in the aftermath of the Tea Party revolution in state legislatures, more than 400 such bills have been passed in 21 states.
Requiring hospital admitting privileges for abortion doctors in Texas and Louisiana has been struck down twice in two recent decisions. There is simply no medical reason to necessitate this, and this is one of many reasons that 275 abortion clinics have closed since 2013.
Arguing that this admitting rule is an “undue burden” on the woman (a phrase made famous by former Justice Sandra Day O’Conner), Chief Justice John Roberts, in both instances, sided with the liberals on this provision. Conservative justices may now outvote Roberts, so women and their doctors may face this arbitrary restriction and many other undue burdens in the future.