This coming year, the U.S. Supreme Court will have the opportunity to undo the right to legal abortion, when it rules on a Mississippi law that bans the procedure at 15 weeks of pregnancy. If the Court decides that the Mississippi law is constitutional, it will effectively overturn the 1973 Roe v. Wade decision, which unequivocally allows abortion up to the point of “fetal viability,” when a fetus could survive outside the womb (generally between 24 and 28 weeks).

The stakes are very high. The Guttmacher Institute, a pro-choice research and advocacy organization, noted recently that more abortion restrictions had been enacted by U.S. states in the first six months of 2021 than in any entire year since 1973. And at least 12 states have “trigger laws” in place that will ban abortion immediately if Roe is overturned.

A host of pro-choice organizations, including the Women’s March and Planned Parenthood, have called for demonstrations around the country on October 2^nd, two days before the Court convenes its new term. A massive turnout—as there was in 2017 after Trump’s inauguration—can make an enormous difference in influencing the Court’s decision.

Texas’ six-week abortion ban

While there is no way to predict how the Court will rule in the Mississippi case, recent indicators have not been encouraging. In August, a majority on the Court refused to stop a clearly unconstitutional Texas law banning the vast majority of abortions, so the ban went into effect on September 1st. The results have already been devastating for those turned away by abortion providers in recent weeks.

The new Texas law will prevent an estimated 85 to 90 percent of patients from obtaining an abortion at clinics inside the state.

The law does not include an exception in cases of rape and incest. For his part, Texas’ Republican governor Greg Abbott ludicrously claimed there was no need for an exception in cases of rape and incest because he planned to ensure that police “eliminate all rapists from the streets of Texas.”

The ban is called the “Texas Heartbeat Act,” outlawing abortion at about six weeks of pregnancy—before most people even know they are pregnant. At six weeks, however, there is in reality no beating heart in what is not yet a fetus but an embryo measuring about one-quarter of an inch. An ultrasound can only detect electrical activity in the embryo; the ultrasound machine produces the artificial “beating” sound.

With this bill, the Texas legislature has also turned the law’s enforcement into a bounty hunt, in which the state government plays no role (and accepts no responsibility). Instead, individual people (who do not even have to live in Texas or be remotely acquainted with the patient) are encouraged to sue anyone who they believe has played a role in helping a Texan to obtain an abortion—including doctors, clinic staff, someone who drives the patient to the clinic, or a person who helps the patient to pay for or in any other way assists them in getting an abortion. The possibilities are endless.

If anyone who files such a lawsuit wins in court, they are entitled to a “reward” of $10,000 or more. The legal expenses alone could easily be ruinous for those accused of this new crime. This law has abortion clinics so terrified that some just hand out a leaflet with information listing out-of-state providers to those needing abortions after the six-week limit to avoid lawsuits.

Weeks after the clinical abortion ban described above took effect, Abbott signed yet another anti-abortion law, barring any Texas doctor or medical provider from giving abortion-inducing drugs after seven weeks of pregnancy. Violating this law carries a fine of up to $10,000 and up to two years in prison.

It’s not about “life”

When Abbott signed the Texas law in May, he declared that it “ensures that the life of every unborn child who has a heartbeat will be saved from the ravages of abortion.” But Abbott is concerned with advancing a right-wing agenda, not with preserving human “life”—as is evidenced by his infamous ban on local mask mandates during the most recent surge of the covid pandemic.

The state of Texas was already a microcosm of the multitude of abortion restrictions in the U.S. over recent decades. As the Guttmacher Institute reported in January 2021, months before the new Texas law took effect, the state already restricted abortions in the following ways:

• Most patients must receive state-directed counseling that includes information designed to discourage them from having an abortion, and then wait 24 hours before the procedure is provided. Counseling must be provided in person for women within 100 miles of the provider and must take place before the waiting period begins, thereby necessitating two trips to the facility.
• Private insurance policies cover abortion only in cases of life endangerment or if the woman’s health is severely compromised.
• Health plans offered in the state’s health exchange under the Affordable Care Act can only cover abortion in cases of life endangerment or severely compromised physical health.
• Abortion is covered in insurance policies for public employees only in cases of life endangerment or severely compromised physical health.
• Medication abortion must be provided using the FDA protocol. The use of telemedicine to administer medication abortion is prohibited.
• The parent of a minor must consent and be notified before an abortion is provided.
• Public funding is available for abortion only in cases of life endangerment, rape or incest.
• A patient must undergo an ultrasound at least 24 hours before obtaining an abortion; the provider must show and describe the image to the patient.
• An abortion may be performed at 20 or more weeks postfertilization (22 weeks after the last menstrual period) only in cases of life endangerment, severely compromised physical health or lethal fetal anomaly. This law is based on the assertion, which is inconsistent with scientific evidence and has been rejected by the medical community, that a fetus can feel pain at that point in pregnancy.
• The state requires abortion clinics to meet unnecessary and burdensome standards related to their physical plant, equipment and staffing.

Abortion is also a class issue

Those who suffer the most from all these abortion restrictions are young and poor. The parental consent requirement puts the fate of pregnant teens in the hands of a parent who may be abusive, unsympathetic to their plight, or simply reactionary. The new law requires pregnant Texans to travel an average of 14 times farther—to an out-of-state facility—than they did before it came into effect. The 24-hour waiting period requires two trips to the abortion facility, which is a major financial burden on top of the cost of the abortion. Those who are living paycheck to paycheck might well not be able to afford missing two days of work. And those needing an abortion who already have children are less likely to be able to leave town overnight. Abortion is now, and always has been, a class issue.

There is another serious consequence besides forcing women and other pregnant people to carry an unwanted pregnancy to term: a rise in maternal mortality. There is a direct connection between abortion restrictions and pregnancy-related deaths.

The U.S. has the highest rate of maternal death among the world’s wealthy nations, and Texas, which already has a maternal mortality rate higher than the U.S. average, is likely to see a dramatic rise because of the new ban. This is because states that deny abortion rights tend to also limit prenatal care by reducing funding for the clinics (like Planned Parenthood) that offer accessible and affordable prenatal care for women.

As Time magazine recently reported, “[F]rom 1995 to 2017, the maternal mortality rate increased most significantly in states that enacted the most restrictive abortion laws. In 2017, states that restricted abortion had a maternal death rate (28.5 maternal deaths per 100,000 live births) that was nearly double (15.7 maternal deaths per 100,000 live births) those that had passed laws protecting access to abortion.”

Time estimated that Texas “could see increases in maternal mortality of up to 15% overall, and up to 33% for Black women next year,” adding, “Black patients are often disproportionately impacted by abortion restrictions, and they are far more likely to die [due] to pregnancy-related deaths than white or Hispanic women.”

But if the future of legal abortion in the U.S. hangs in the balance, the abortion rights movement in neighboring Mexico has scored a decisive victory.

The movement for abortion rights in Mexico shows how to win

On September 7^th, just days after the Texas ban went into effect, Mexico’s Supreme Court struck down a law criminalizing abortion in its northern state of Coahuila, immediately south of the Texas border. The Court ruled unanimously that Coahuila’s law carrying a prison sentence of up to three years for women who had an illegal abortion was unconstitutional. The ruling is binding on all other Mexican states, thereby opening the door to legalizing abortion nationwide.

This is no small matter, since Mexico has the world’s second largest Roman Catholic population, behind only Brazil. And abortion was criminalized throughout Mexico until as recently as 2007, when Mexico City legalized it through the 12^th week of pregnancy. And until now, only four of Mexico’s 32 states—Mexico City, Oaxaca, Veracruz, and Hidalgo—allow abortions, although (in contrast to Texas’ new law) women who became pregnant through rape are eligible to legally terminate their pregnancies throughout Mexico.

The success of the movement in Mexico has many lessons for abortion rights activists around the world—most importantly, how mass struggle can overcome seemingly insurmountable obstacles and emerge triumphant. But the movement in Mexico was also inspired by the massive struggle for choice in Argentina, which won legal abortion in late December 2020 after years of unrelenting struggle. The victory in Argentina emboldened women’s rights activists throughout much of Latin America, who have donned green scarves like those worn in Argentina to demonstrate their solidarity. 

It must also be stated, however, that women in Mexico and elsewhere in Latin America have faced appalling mistreatment for a very long time—which makes these victories even more important. An estimated one million illegal abortions are performed in unsafe conditions each year in Mexico, with an untold number of deaths. Most of those who experience life-threatening consequences from illegal abortions are afraid to go to the hospital because they could be arrested.

Women and girls in Mexico and other parts of Latin America also face murderous violence on a daily basis simply because of their gender—which has been labelled, appropriately, as “femicide”—and has only worsened in recent years. The number of femicides in Mexico increased to 10 per day in 2019, up from seven per day in 2017.

In February 2020, hundreds of women stormed the National Palace in Mexico City, demanding an end to gender-based violence as they spray painted graffiti and defaced the façade of the palace. As one demonstrator explained, “If trashing monuments makes authorities look at us and listen to our demands, then we will continue to do so.”

The following month, tens of thousands of Mexican women joined massive demonstrations on International Women’s Day on March 8^th. The following day, tens of thousands of women went on strike in Mexico to underline the demand for government action against femicide. “We apologize for the inconveniences, but they are murdering us!” read one banner carried by protesters.

Struggle points the way forward

There is undeniably a conservative majority on the U.S. Supreme Court today. Former president Donald Trump nominated Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett because they are all on record against abortion rights and would, he assumed, establish a dependable anti-abortion majority on the Court that would be able to overturn Roe v. Wade.

But this is not the end of the story. And it is certainly not a reason to assume that Roe is doomed. While Supreme Court justices ostensibly stand “above” society, determining the constitutionality of laws in a legal bubble, history has shown that their rulings are influenced by the balance of political and class forces in the society in which they live.

This is the only way to explain, for example, why in 1896 the Supreme Court upheld the constitutionality of racial segregation under the “separate but equal” doctrine, yet in 1954 ruled unanimously that “separate is not equal” when ruling that racial segregation violated the Equal Protection Clause of the Fourteenth Amendment.

And this is not the first time that the right to choose abortion has faced a possible repeal by the U.S. Supreme Court. In 1989, when the Court heard Webster v. Reproductive Health Services, the Court came so close to overturning Roe that three pro-choice justices circulated a proposed dissent stating, “Roe no longer survives.”

The Webster case considered a Missouri law mandating “fetal viability” testing on those believed to be 20 weeks pregnant or more before permitting an abortion. But the first woman Supreme Court Justice, Sandra Day O’Connor, apparently changed her mind about using this case to overturn Roe. Throughout the 1980s, O’Connor—appointed by Ronald Reagan—had consistently voted in favor of restricting abortion rights. For this reason, she was expected to provide the key swing vote against Roe in the 1989 case. But she didn’t. While ruling in favor of abortion restrictions in the Webster case, she made clear that she was against overturning Roe v. Wade.

What happened to change O’Connor’s vote? When the right to legal abortion was clearly in peril in 1989, massive numbers of pro-choice supporters mobilized around the U.S. to defend it—culminating in a 300,000 strong pro-choice demonstration in Washington, D.C. in April of that year.

By 1992, the right to legal abortion was again threatened, when the Court was presented with the Planned Parenthood v. Casey case. This Pennsylvania law required informed consent (an anti-abortion lecture) and a 24-hour waiting period before allowing an abortion; the consent of one parent before a minor could obtain an abortion; notification of the husband if a married woman seeks an abortion.

That year, roughly a half-million people descended on Washington, D.C. to defend the legal right to choose.

The Court ended up striking down the spousal notification but upholding the other restrictions. However, three Reagan appointees—O’Connor, along with justices David Souter and Anthony Kennedy—joined the 5-4 majority, declaring that “the woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce.”

There can be no question that these massive mobilizations for choice influenced the Justices’ assessments about ending legal abortion, whatever their personal views.

The lessons for us are obvious today. The pro-choice majority in the U.S. must once again find its voice and take to the streets. The day of abortion rights demonstrations on October 2^nd will be our first opportunity to do so. We should not lower our expectations just because the immediate prospects look dim but instead follow the lead from our sisters in Argentina and Mexico—knowing that we can also win.