Contributed by Amara Willey
In the crucible of reproductive rights, the threat to Roe v. Wade is already being waged. Should the Supreme Court overturn that historic court precedent, whether a woman has the right to choose abortion would become a states’ issue.
In preparation for that, at least 13 states have passed or are considering laws that would make abortion illegal. Trigger laws, or state legislation that will become active should the Supreme Court overturn previous decisions about reproductive rights, are being put in place in a number of places. Some states, such as Arkansas and Louisiana, have created legislation that will make abortion illegal. This can work both ways though. Other states, such as New Mexico and Vermont, have created laws that will protect a woman’s right to choose. For example, New York lawmakers passed the “Reproductive Health Act” in January, which protects access to abortions after 24 weeks if the fetus is not viable or if there is risk to the mother’s health.
Recent presidents have been using executive orders as a way to bypass Congress on certain issues. Just like laws, executive orders can be found to be unconstitutional. One of the first orders President Donald Trump signed reinstated the “global gag rule,” which prevented U.S. funding to international nongovernmental organizations that offer or advise on a wide range of family planning and reproductive health options if they include abortion.
State governors can also use executive orders in this way. In January, Illinois Governor JB Pritzker signed an order that gives all women, regardless of income, the ability to make their own decisions about their reproductive health. Last year Gov. Andrew Cuomo ordered insurers in New York to cover over-the-counter emergency contraception for women — better known as Plan B.
Although perhaps the most famous, Roe v. Wade is not the only court precedent for women’s reproductive rights. More than 15 other cases have been heard by the highest court in the land regarding right to choose and contraceptive access. For example, in the 1971 Supreme Court case, United States v. Vuitch, a doctor challenged the constitutionality of a District of Columbia law permitting abortion only to preserve a woman’s life or health. The Court rejected the claim that the statute was unconstitutionally vague, concluding that “health” should be understood to include considerations of psychological as well as physical well-being. The Court also held that the burden of proof should be on the prosecutor who brought charges, not on the doctor.
Meanwhile, all of the Democratic candidates are aligned in their support for reproductive freedom, while Trump seems to be using the issue as a way to rally his base. In a recent CNN poll of Iowa Democrats, abortion ranked slightly ahead of recognizing climate change as the greatest threat to humanity. In order for reproductive rights to be protected through Federal law, it seems likely that Democrats will need to hold the majority in both the House and the Senate.