Will 2020 be the year abortion is banned in the US?

A conservative supreme court will take up its first abortion case as activists brace for a fight that could change everything

In a centuries-long debate about gender and sexuality, 2020 could mark a turning point for abortion rights in the US.

In the coming year, the anti-abortion president, Donald Trump, faces re-election, and a conservative supreme court will take up its first abortion case, with potentially far-reaching consequences for a woman’s right to choose in America.

Supporters and activists on both sides of the divide – pro-choice and anti-abortion – are braced for a titanic fight that could change the face of abortion access in the States.

“I don’t think there’s any doubt that the big issue this year is going to be the election in November,” said Carol Tobias, president of National Right to Life, an anti-abortion organization.

For activists like herself, “the worst fear would be absolutely everything goes against us in the election, and we have a pro-abortion president and Democrats like Chuck Schumer and Nancy Pelosi in charge of the House and the Senate,” said Tobias. “They could do some serious, long-lasting damage, but I really, really, really do not believe that is going to happen.”

Meanwhile David Cohen, a pro-choice Drexel University law professor and co-author of Obstacle Course: The Everyday Struggle to Get an Abortion in America, described the coming election as “an all-consuming news item this year”. He said: “We have two parties with starkly different views on abortion, so that is going to be a major issue in the presidential campaign.”

An unprecedented wave of the most restrictive anti-abortion laws

This week marks the 47th anniversary of the landmark US supreme court case Roe v Wade, which legalized abortion in the US and has been a target for conservatives since the religious right adopted abortion as a cause in the late 1970s.

Hundreds of thousands of anti-abortion protesters will also gather in Washington DC on 24 January for the March for Life, the nation’s largest anti-abortion protest. And the evidence of recent years shows they are successfully rolling back access to abortion across the US.

Anti-abortion activists protest outside the supreme court during the March for Life in Washington DC, on 18 January 2019.
Anti-abortion activists protest outside the supreme court during the March for Life in Washington DC, on 18 January 2019. Photograph: José Luis Magaña/AP

Last year saw an unprecedented wave of the most restrictive anti-abortion laws in decades, many blatantly unconstitutional. In 2019, so-called “heartbeat bills”, which ban abortion at six weeks, before most women know they are pregnant, became law in Georgia, Kentucky, Ohio and Mississippi. Alabama banned abortion outright.

In one case, an extreme bill proposed in Ohio would have charged doctors with “abortion murder” if they did not attempt to “re-implant” an ectopic pregnancy. There is no such procedure in medical science, and ectopic pregnancies that form in the fallopian tubes are never viable. They do, however, threaten women’s lives.

None of these laws are in effect, as they directly contravene law set out in Roe v Wade. This is by design. Emboldened by Trump and funded by conservative Republican mega-donors, abortion opponents hope they can push the right-leaning supreme court to take up a case and overturn Roe, even though most of the public agrees abortion should remain legal.

“The main takeaway is that the states will continue to be important players on abortion laws and regulation,”said Elizabeth Nash, state issues manager at the pro-choice Guttmacher Institute.

Clinics are shuttering in large numbers in the south and midwest

There will be an intense focus on the supreme court this spring, as it hears oral arguments in June Medical Services LLC v Gee. The case from Louisiana focuses on whether doctors should be required to obtain the right to admit patients to local hospitals and will have national implications.

The right to admit patients to hospitals, called “admitting privileges”, is meant to sound like it improves women’s health. In fact, hospitals are already required to take all cases which come through the emergency department. Instead, admitting privileges often serve as an insurmountable hurdle for doctors who practice independently at abortion clinics, in effect closing their practices.

If it is ruled constitutional, the regulation could shut down two of Louisiana’s three abortion clinics, despite providing no measurable health benefits for women. Legal scholars were shocked the country’s highest court was even hearing the case. It ruled on an identical law from Texas in 2016, finding the measures unconstitutional and an undue burden to women seeking abortions.

“The breadth of the outcomes is really wide,” said Cohen. The case could result in “everything from ‘you can regulate a little more’ to ‘you can outlaw abortion’. So there’s a lot we don’t know about what’s coming in the future.”

But if the case in the supreme court could decide the legal fate of abortion rights, a woman’s ability to exercise her right is already in dire straits. Between 2011 and 2017, 4% of abortion clinics closed across the US. This modest change obscures a broader truth – clinics are shuttering in large numbers in the south and midwest and opening on the coasts, leading to expensive logistical nightmares for many women.

We just have to keep on fighting

Abortion is now central to America’s culture wars, one of a number of divisive issues shaped by a hyper-partisan political divide. Trump has played a key role in widening the gulf – and attempting to exploit it for electoral gain.

“Virtually every top Democrat also now supports late-term abortion, ripping babies straight from the mother’s womb right up until the moment of birth,” Trump told a booing audience at a recent rally in Toledo, Ohio. That statement is false – but emblematic.

Abortion is a repeat topic as Trump campaigns for re-election at rallies, where his rhetoric often goes beyond what even the anti-abortion movement could have hoped for from past Republican candidates.

Tobias and other anti-abortion activists have worked diligently to spread news of Trump’s “amazing work” to the broader electorate. She mentioned a list of his administration’s achievements that the movement holds in esteem, including remaking the federal bench with ideological judges and preventing foreign aid from being used to advise women on abortions.

“I’m expecting more pro-life laws to be passed, and there will of course be more challenges in the court, but we’re moving forward,” said Tobias.

People during a rally calling for abortion rights outside the US supreme court in Washington DC, on 21 May 2019.
People during a rally calling for abortion rights outside the US supreme court in Washington DC, on 21 May 2019. Photograph: Ting Shen/Xinhua/Barcroft Media

That was not always the case. The Christian right only took up the mantle of abortion after Roe was decided and after the supreme court ruled against the segregationist policies of private Christian schools, many of which were founded to exclude African American students.

Southern Baptists even supported abortion rights at their annual conference until 1976. Until Roe, abortion was seen mostly as an issue for the Catholic church, and it was predominantly Democratic states that opposed access to abortion and contraceptives.

Now, most Americans – nearly 80%, according to Gallup polling – support legal abortion in at least some circumstances. However, abortion has historically been a motivating issue for conservative voters, less so for liberals. That has led to a virulent anti-abortion right, while the left has only begun to enshrine abortion rights in state law.

Loretta Ross is a reproductive justice activist and expert who has worked not just for abortion rights but against pregnancy discrimination and maternal mortality. “We just have to keep on fighting the same way black people have to keep on fighting for voting rights for 400 years,” she said.

Some older feminists in particular fear abortion rights, which younger women have grown up with, have been taken for granted since Roe v Wade. Doctors such as Mary Jane Minkin, a professor of obstetrics and gynecology at Yale School of Medicine, worry about a return to illegal and deadly procedures.

“Unfortunately, the young women today don’t realize how bad it was,” said Minkin. When she was attending Brown University in 1968, “I knew of a young woman a couple years before me, she got pregnant during freshman week.

“She was subsequently infertile … had an illegal abortion done, and couldn’t get pregnant thereafter,” said Minkin. There were, of course, even worse outcomes. One of Minkin’s mother’s friends had a sister, a flight attendant, who died from an illegal abortion.

“There were very dark times with people dying having septic abortions and people being infertile for the rest of their lives,” said Minkin. “We don’t want to go back to that. We really don’t want to go back to that.”


Jessica Glenza in New York

The GuardianTramp

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