What Amy Coney Barrett on the Supreme Court Could Mean for Your Reproductive Rights

Graphic via Denzel Boyd for COURIER

By Cassandra Stone

October 9, 2020

An overwhelming majority of Americans are in favor of safe, legal abortions. Barrett’s confirmation to the Supreme Court, however, could put Roe v. Wade at risk.

Republicans are pushing to quickly fill the vacancy on the Supreme Court left by Justice Ruth Bader Ginsburg’s death with a far more conservative judge than, arguably, many of its current members. The Senate Judiciary Committee will begin confirmation hearings for Amy Coney Barrett, President Donald Trump’s nominee for the high court, on Monday.

Barrett’s critics, however, are worried about what her confirmation will mean for the future of family planning—particularly Roe v. Wade, the landmark case that protected a pregnant person’s right to an abortion without excessive government restriction.

Catholics for Choice, for example, is one of the many groups that have rejected Barrett’s nomination because, in part, they doubt “her willingness to apply the law in an impartial manner.” In 2016, when she worked as a law professor at Notre Dame, she signed her name to a full-page newspaper ad that stated: “We, the following citizens of Michiana, oppose abortion on demand and defend the right to life from fertilization to natural death. Please continue to pray to end abortion.” She was also a member of the anti-choice Christian group People of Praise.

RELATED: Amy Coney Barrett’s Views Are Out of Step With Most American Catholics

All of this, in the minds of those who believe family-planning decisions should be personal, puts reproductive rights directly under attack once again.

An overwhelming majority of Americans are in favor of safe, legal abortions, according to 2019 survey conducted by Marist College, National Public Radio, and the PBS NewsHour. The survey also found that 62% of registered voters oppose attempts to ban abortion past six to eight weeks of pregnancy. An even larger majority of registered voters—70%—oppose legislation that would subject doctors who provide abortion care to fines or prison time.

The Trickle-Down Effect of Overturning Roe v. Wade

Dr. Diana Greene Foster is a professor within the Department of Obstetrics, Gynecology & Reproductive Sciences at the University of California San Francisco, and the director of research at Advancing New Standards in Reproductive Health (ANSIRH). She believes that an unbalanced Court would give conservative legislators license to put forth regressive and harmful policies.

“If abortion was no longer constitutionally protected at a national level, some states would make it illegal, and women in those states would have a lot harder time accessing care,” Foster told COURIER. “Travel distance [to an abortion provider] would become more difficult. People without a lot of knowledge might order abortifacient pills online that may or may not be legal to order.” (Mifepristone and misoprostol are abortifacient drugs that induce abortion.)

Dr. Foster is also the lead author of the Turnaway Study, which examines the mental, physical, and socioeconomic consequences of receiving an abortion compared to carrying an unwanted pregnancy to term. From 2008 to 2010, Dr. Foster recruited 1,000 women from 30 different abortion providers across the country and interviewed them nearly 8,000 times over a period of five years. All of the women sought abortions, though only some received them. Others were “turned away” because they were past the gestational limit for the clinic. In the United States, gestational limits range from 20-24 weeks, depending on the state. 

“In the study, we followed people who were denied wanted abortions, and many aspects of their lives, like their health and wellbeing, were worse if they were denied the abortion,” Dr. Foster said. Women who were unable to obtain a wanted abortion have four times greater odds of living below the federal poverty line, for example.

If Roe v. Wade was overturned, Dr. Foster pointed out, the ability to obtain an abortion legally would vary by state. Pregnant women with resources to travel would still be able to get abortion care, while lower-income, less-privileged women would not have the same opportunity. Many women, she argued, would resort to taking their reproductive health into their own hands by self-inducing abortions. 

More than 4,000 American women each year carry unwanted pregnancies to term.

“Women with Internet savvy would likely order pills online,” she said. The risk with doing this, should a state prohibit abortions in clinics, is that a person could face criminal charges. “Already there are women in the United States who have gone to jail for using on their own—or providing to their daughter—the same pills they can legally be given in abortion clinics.” 

In 2013, for example, a Pennsylvania mother who had ordered abortion medication off the Internet for her daughter was reported by hospital staff after they sought medical attention for side effects. She was convicted on a felony charge of “offering medical consultation about abortion without a medical license.” In 2015, a Georgia woman who took abortifacients she purchased online was arrested and charged with murder after she gave birth on her way to the hospital after taking them. The murder charge was eventually dropped, but she was charged with drug possession in relation to the abortifacient pills.

If Roe were to be overturned, Dr. Foster writes in her book The Turnaway Study, women who want to end their pregnancies can and will resort to extremely dangerous methods to do so, like drinking toxic substances, inserting foreign objects into their uterus, or harming their abdomens. Because of advances in medical science, she doesn’t believe deaths from illegal abortions will reach the same numbers seen prior to the legalization of the procedure in New York in 1970. But the picture she paints of what “choices” could realistically look like for women seeking to terminate their pregnancies, should reproductive rights come under further attack, is a grim one.

According to the Turnaway Study, more than 4,000 American women each year carry unwanted pregnancies to term. 

“This includes women who don’t have the information or money to travel or order pills online,” Dr. Foster said. “And for those women, all the burdens outlined in my book—worse physical health, reduced life aspirations, higher exposure to domestic violence, increased poverty, lowered chance of having a wanted pregnancy, worse outcomes for their other children—will result.”

Beyond Abortion

Reproductive rights also means being able to access contraception—and that right has already come under attack by the Trump administration. 

Earlier this year, the Supreme Court ruled in a 7-2 decision in Trump v. Pennsylvania that the administration did not violate any laws when it issued new rules about who could opt out of covering birth control in their health insurance plans as required by the Affordable Care Act (ACA). Because of the ruling, employers and schools are free to cite religious or moral objections to opt out of providing no-cost birth control to women. 

The government had estimated the rule changes would cause about 70,000 women, and at most 126,000 women, to lose contraception coverage in one year.

RELATED: Supreme Court Sides With Trump on Who Can Access Birth Control. Here’s What You Need to Know.

Barrett, the Supreme Court nominee, has herself criticized the contraceptive coverage mandate included in the ACA. In 2012, she signed a letter authored by the Becket Fund for Religious Liberty that objected to the Obama administration’s accommodation for employers because in their eyes it did not go far enough to accommodate religious liberty.

Should these issues come before the Supreme Court again, it will be Justice Ginsburg’s voice that will be sorely missed. 

“In accommodating claims of religious freedom,” Justice Ginsburg wrote in her dissenting opinion in Trump v. Pennsylvania earlier this year, “this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs. Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”

She also pointed out that the decision in “leaves women workers to fend for themselves.”

READ MORE: WATCH: Americans With Pre-Existing Conditions Sound Off on the Potential Repeal of the ACA


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