Abortion Access Is Essential and Must Be Protected

Courts Resources, Economic Justice Resources 12.1.21

By Kathleen Malloy

Today, the U.S. Supreme Court hears oral arguments in Dobbs v. Jackson Women’s Health Organization, the most consequential abortion rights case to come before the Court in decades and a direct challenge to Roe v. Wade.

The case involves a Mississippi law that bans abortion after 15 weeks in direct defiance of Roe. This clearly unconstitutional law was already struck down by the U.S. District Court for the Southern District of Mississippi and the U.S. Court of Appeals for the Fifth Circuit as an unconstitutional restriction on the right to an abortion. Now, Mississippi has asked the Supreme Court to overturn Roe or render it meaningless, which would put the health and livelihoods of millions of people at risk.

Dobbs is of great concern to the civil rights community because abortion access is a racial and economic justice issue: Abortion restrictions and bans disproportionately burden Black women, low-income people, and other people who already face intersecting, discriminatory barriers to accessing health care. Despite nearly 50 years of jurisprudence reaffirming the right to an abortion since the Court decided Roe in 1973, access to abortion services remains out of reach for many pregnant people. Appallingly, states have passed more than 1,300 restrictions on abortion since Roe. And as The Leadership Conference on Civil and Human Rights and the Lawyers’ Committee for Civil Rights Under Law argued in an amicus brief to the Court signed by 15 other prominent organizations, abortion bans perpetuate racial and socioeconomic disparities, with devastating impacts for Black women and people with low incomes.

Abortion access is linked to economic and racial justice in the same way that school desegregation, inclusive health care, and voting rights are linked to economic and racial justice: These rights ensure that America’s ideals of equality and justice are lived realities for all people. Our nation’s shameful legacy of slavery, systemic racism, and persistent structural inequality in housing, health care, education, employment, and other areas of life created the racial and economic disparities we see today, and restricting access to abortion will only worsen them. That’s why the Supreme Court’s decision in Dobbs will be a decision about who has the ability to fully and equally participate in society — and whether we can begin to live up to our nation’s promise of justice for all.

But let’s be clear: It is not by chance that this Supreme Court is hearing arguments on whether to overturn Roe. Although the American people support abortion by large margins, this case comes after the Trump administration stacked the Supreme Court with three justices hand-selected with the express purpose of ending legal abortion in the United States. The Supreme Court’s decision to even hear this case signals at least some of the justices’ willingness to reopen settled law and ultimately jeopardize the health and rights of millions of people.

This is a pivotal moment for the Supreme Court to demonstrate that it can decide cases fairly and based on precedent and the rule of law. Indeed, all federal courts have the opportunity to uphold America’s promise of justice for all. And that is why as the Court considers — for the first time in 50 years — a case on the constitutionality of a pre-viability abortion ban, it is more important than ever that President Biden and the Senate prioritize building an equal justice federal judiciary with diverse, fair-minded, and empathetic judges. It’s clear that courts matter when it comes to abortion access, and the Senate has a powerful role in ensuring we have judges who understand that.

But the Senate can do more than confirm fair-minded judges who will deliver equal justice. Senators can and must pass legislation — like the Women’s Health Protection Act, which the House passed in September — to protect abortion access from medically unnecessary restrictions and to prevent the onslaught of state-level bans and restrictions like the one being challenged in Dobbs.

The truth is this: Until we have a federal judiciary that upholds equal justice for all, and until we have federal legislation to prevent harmful abortion bans from taking effect in the first place, the health and economic security of our communities are at stake. Access to abortion is essential — and must be protected by the courts and by Congress.

Kathleen Malloy is a fall 2021 undergraduate intern at The Leadership Conference on Civil and Human Rights.