Examining Roe v. Wade and the Attacks on Reproductive Freedom 

Restrictions on abortion are rampant. What does that mean for access?  

This year, state legislatures across the United States have passed more restrictions on abortion than any other year since Roe v. Wade was decided in 1973. 

With an anti-abortion majority on the Supreme Court and the Justices agreeing to hear a case challenging the landmark Roe v. Wade decision this fall, many of are wondering how we got here and what this moment could mean for the future of abortion health care in America. 

That’s why the ACLU is fighting to demand equitable access to reproductive health care for everyone, everywhere. 

Background on reproductive freedom in the United States  

Before the Civil War, abortion and contraceptives were legal in the U.S., used by Indigenous women as well as those who arrived from Europe. For the most part, reproductive health care was provided by midwives, half of whom were Black women. 

But, as slavery ended, skilled Black midwives represented both real competition for white men who sought to enter the practice of child delivery, and a threat to how white, male obstetricians viewed themselves – as elite members of a trained profession. In an effort to create a monopoly on the industry, male gynecologists claimed midwifery was an unhygienic, barbarous means of obstetrical care. 

They pushed women out of the field of reproductive health by lobbying state legislatures to ban midwifery and prohibit abortions, a move that undercut access to reproductive health and drove qualified Black women out of medical services. Barred from the American Medical Association, women and Black people lacked any meaningful path to the formalized skill set necessary to practice in the field. Abortion proved an expedient way to frame the campaign to create monopolies on women's bodies for male doctors. 

It wasn't until the 1960s that a wide range of new demands for abortion gained political traction, from people who wanted to control the number and spacing of their children to doctors and activists appalled by the unsafe and unsanitary practice of illegal abortion that maimed and killed thousands. 

In 1969, the ACLU officially entered the fold, asking state legislatures to abolish all laws imposing criminal penalties for abortions and deeming the matter a civil liberties issue, in addition to immediately joining a number of promising abortion cases, including Doe v. Bolton and Roe v. Wade. 

Unpacking Roe v. Wade 

The first abortion case to reach the Supreme Court was United States v. Vuitch, in which a doctor challenged the constitutionality of a District of Columbia law permitting abortion only to preserve a person's life or health. In its ruling, the Court concluded that "health" should be understood to include psychological as well as physical well-being, and that the burden of proof should be on the prosecutor who brought charges, not on the doctor. 

By the time the Vuitch decision came down in 1971, 17 other abortion challenges were headed for the Court, including the landmark Roe v. Wade case in which patient “Jane Roe” challenged a Texas law prohibiting all but lifesaving abortions. 

In its famous 1973 decision, the Supreme Court invalidated the Texas law on the ground that the constitutional right to privacy encompasses a person's decision whether or not to continue their pregnancy. Characterizing this right as "fundamental" to the "life and future" of those seeking abortion health care, the Court held that the state could not interfere with the abortion decision unless it had a compelling reason. 

The Justices concluded that a state could ban abortion only once the fetus became "viable" (usually at the beginning of the last trimester of pregnancy), and even then, access to an abortion would be available if it were necessary to preserve the life or health of the person seeking the care. In later cases, the Court also struck down statutes that restricted abortions to particular types of hospitals, required external approval, or imposed residency requirements. 

Attacks on abortion access 

Roe vs. Wade may have established access to abortion as a fundamental right in theory, but in practice that right has been radically eroded. 

The deterioration began soon after Roe v. Wade was decided, most notably with the Supreme Court allowing the government to ban abortion coverage in the Medicaid program. By doing so, the Court made abortion inaccessible for people without wealth and resources, and stigmatized abortion by allowing the government to allocate federal funds to support patients who decide to carry to term, but not those who sought abortion coverage. 

State legislatures quickly followed suit, passing thousands of restrictions on abortion access and targeting abortion providers and patients with burdensome rules – the same tactics anti-abortion opponents are using today. 

Reproductive Rights in 2021 

This year has already made history as the worst year for abortion rights since Roe v. Wade, with an alarming 90 abortion restrictions enacted in the first six months of 2021. 

This legislative session, eight states have enacted 11 abortion bans, with Arkansas and Oklahoma banning abortion in nearly every case. Idaho, Oklahoma, South Carolina, and Texas have enacted bans on abortion at about six weeks – before most people even know they're pregnant – with the Texas law allowing anyone anywhere to sue abortion providers or sue to try to stop an abortion. 

States have targeted medication abortion, and eight have enacted new restrictions. Three of those states, Arizona, Arkansas, and Oklahoma, go as far as prohibiting patients from receiving the medication by mail, despite the Food and Drug Administration allowing abortion pills to be mailed throughout the pandemic. 

Seven states have enacted TRAP laws, burdensome and medically unnecessary regulations for abortion clinics written with the goal of forcing them to shut down. Oklahoma now requires a board-certified obstetrician-gynecologist to perform an abortion. 

Because of racism and structural inequality, these types of restrictions fall hardest on people of color, low-income people, immigrants, and LGBTQ people, as well as young people, people in rural areas, and other marginalized communities. They do nothing to respect or support a patient's decision; instead, they impose intrusive mandates on abortion patients, regardless of their own wishes. 

The Supreme Court 

Anti-abortion extremists have long worked to chip away at abortion access in the states while leaving the legal right in place, even if in name only. But that strategy shifted during the Trump administration with the nominations of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to the Supreme Court, as abortion opponents began to hope the new conservative-majority Court would use a ban to overturn Roe v. Wade. 

Now, they may get their opportunity. The Supreme Court has decided to hear arguments in Dobbs v. Jackson Women's Health Organization this fall, a case in which the Center for Reproductive Rights is challenging Mississippi's ban on abortion at 15 weeks of pregnancy. In that case, Mississippi has asked the Supreme Court to overturn Roe v. Wade. 

If the Supreme Court rules in favor of Mississippi and overturns Roe, the decision will empower politicians around the country who are poised to limit abortion access. In fact, right now, approximately half of U.S. states have laws on the books that would restrict or ban abortion if Roe falls. That means millions of people, particularly in the South and Midwest, would be at risk. Patients in hostile states would be forced to travel to obtain legal abortion care, leaving many unable to access abortion at all. 

Real-world impacts  

As we consider what is at stake, it's critical to understand how protecting the right to abortion intersects with other urgent fights to demand gender equality, racial justice, and LGBTQ rights. 

Right now, our ability to access abortion care we need depends in large part on where we live and how much money we have. People of means will be able to travel the ever-increasing distances to access an abortion provider, take time off work, secure childcare, and pay for the procedure – which the government bars insurance from covering in many states. The same is impossible for those of us who lack the same privilege and resources. 

Barriers to abortion care will continue to be felt most acutely by Black people and people of color, given the wealth gap that results from systemic inequality and the pervasive racism in the medical system. A decision of the Court to further reduce abortion rights will only compound systemic inequality. 

Restrictions on abortion also constitute sex discrimination for women as well as nonbinary people and transgender men, and emphasize how pervasive and archaic notions of gender have thwarted visibility and access for people who don't conform to persistent gender norms. 

Reproductive freedom intersects with women's rights as well as LGBTQ rights, racial justice, disability rights, and economic justice. And it's critical to understand these intersections, how they disproportionately affect different people, and what's really at stake, so we can secure equal access for all. 

Fighting back  

The ACLU is on the frontlines fighting the myriad bans and unconstitutional laws that restrict or altogether remove access to abortion. With our nationwide affiliate presence in all 50 states, we're able to file quick, defensive lawsuits to block harmful restrictions as they pop up, while simultaneously filing strategic, affirmative lawsuits to actually expand access to abortion in key states. Thanks to these efforts, ACLU litigation has kept clinics open and made services more accessible, so that thousands of people are able to access the abortion care they need. 

This is an urgent, anxious time for reproductive freedom. Even if the Court does not expressly overturn Roe v. Wade, states will continue to push abortion further and further out of reach. This is why we have to take immediate action to pass the Women's Health Protection Act. This important bill would provide a nationwide safeguard against abortion bans and medically unnecessary restrictions that push abortion care out of reach. It would protect the constitutional rights of all people, no matter where they live. 

And we must do whatever it takes to defend the right to vote, to ensure that our public officials are elected fairly and committed to advancing civil liberties for everyone. 

In the Courts 

ACLU attorneys from coast to coast are pushing to advance reproductive rights in the courts: 

  • In Texas, the ACLU and partners have filed a federal lawsuit challenging the state's unconstitutional 6-week abortion ban. 
  • We just blocked Arkansas' ban on abortion, the latest and most direct attack on abortion by anti-abortion politicians in the state. In addition, our ongoing litigation is currently blocking bans in Alabama, Georgia, Kentucky, Missouri, Ohio, and Tennessee. 
  • We are awaiting a permanent decision in Ohio, where a federal judge granted a temporary restraining order to block the state's six-week abortion ban in July 2019, after the ACLU and allies filed suit to stop the law. 
  • In North Carolina, we're pressing to dismantle unjust laws, many of which have affected abortion access for generations, including: a law prohibiting qualified medical professionals from providing abortion, a ban on the use of telehealth for medication abortions, and a mandatory 72-hour waiting period between the patient's consultation with their provider and when they can actually have the abortion. 
  • In Guam, we've filed a lawsuit seeking to restore abortion access to the island. The ACLU won an important victory in March, clearing the way for people in Guam to obtain medication abortion through telemedicine. And now, we're fighting a second law that requires an in-person visit before an abortion, a restriction that creates unnecessary obstacles and jeopardizes the confidentiality of patients' abortion decisions. 
  • As a result of ACLU litigation challenging restrictions on medication abortion during COVID-19, in April, the Biden administration lifted a requirement forcing patients to pick up abortion medication in person during the pandemic. And in May, the U.S. Food and Drug Administration announced a long sought-after review of harmful, unnecessary restrictions on medication abortion. 
  • Following the FDA decision allowing medication abortion during COVID-19, the ACLU has submitted a legal filing in a dormant case in Hawai'i seeking expanded federal access to abortion medication. 

You can help 

Everyone has the ability to play a valuable role in the fight to protect reproductive freedom. From contacting your U.S. Senators and Representative in support of the Women's Health Protection Act to volunteering at a local abortion provider, there are countless ways you can personally support the movement. Stay up to date with the latest ACLU efforts in the fight for our reproductive rights.

Keep informed for the fight ahead.