Illustration by Sidney Howard

This week marks Roe v .Wade’s 43rd anniversary, a decision granting women the constitutional right to an abortion. But is having a law in the books enough? 

While the Supreme Court Case Roe v. Wade set legal precedent granting women the constitutional right to abortion, have we really “come a long way, baby?”  Is the fight for reproductive justice over and won?  

Not even close.  Although Roe categorized the right to abortion as fundamental and constitutional, many people argue that women still do not have the ability to exercise that right, making it nothing more than an empty promise.  

Roe was a huge victory for women and the movement, but it was very far from what the women’s liberation movement was demanding,” said Candi Churchill, an activist with National Women’s Liberation, an independent feminist organization. “They were demanding complete repeal of all laws and restrictions on the ability to control our own reproduction.  We don’t have that yet, and what we won started to be chipped away right after Roe was won.”

First, a little legal jargon. Rights are generally categorized as functioning in two ways:  de facto and de jure.  De facto rights are rights in fact that is, actual, practicable rights we have and exercise freely, though they might not be written in the law. De jure rights are formal, institutionalized rights that have been enumerated either by statute or case law.  Some rights can be both, but many civil rights tend to fall into the latter category while never quite making it through the implementation stage and into de facto rights.  

Roe’s right to abortion is one of those.  

So while Roe established a de jure, or legal, constitutional right to abortion through the fundamental right to privacy found in both the Fifth and Fourteenth Amendments, all of the post-Roe restrictions that states have placed on access to contraception and abortion  as well as the government’s general failure to implement and protect women’s right to abortion  have arguably resulted in a denial of a de facto, or actual, right to abortion.  

“Our struggle for reproductive justice, including the right to abortion, has to address women’s right to self-determination and demand that we be treated as equals in all aspects of our public and private lives,” said Andrea Costello, a Gainesville-based civil rights attorney.  “And to ensure lasting change that we can hold onto, this organizing needs to be part of the larger struggle for women’s freedom and liberation.”

In other words, while Roe may have been a big win for women, without the right to choose, as well as the right to bodily autonomy, it is insufficient to win the fight for reproductive justice.

“The movement was fighting for repeal–and we got reform,” Churchill said.

A short introduction to Roe

Roe was decided by the U.S. Supreme Court in 1973 and involved an unmarried pregnant mother, “Jane Doe,” suing on behalf of all women who also wished to receive safe and legal abortions.  The suit fought against a group of Texas statutes that criminalized abortion services unless the abortion was medically necessary to save the mother’s life.

Because of Roe, the Supreme Court had to consider whether these Texas statutes invaded the pregnant mother’s right to personal liberty, a right that exists in various places in the U.S. Constitution, including the Due Process Clause in the Fourteenth Amendment; the right to privacy in the Bill of Rights “or its penumbras;” and/or the Ninth Amendment. The Court also had to address whether the right to abortion was included in the more general rights of liberty and privacy.

When the Court decided that the right to privacy includes the right to abortion, women across the country celebrated the win.  

However, the Court also held that the right to abortion was not without exceptions. Going forward, the court explained, the right must be weighed against the state’s interest in regulating the medical procedure. This caveat has been translated today into states and legislators effectively denying women the right to abortion through regulations such as waiting periods, bans on later abortions and restrictions on medication abortion, among other measures.

“The movement’s largest demand was for the right to abortion,” said Churchill, “and what the Supreme Court decided was actually a compromise from what they were really fighting for.”

The Aftermath:  Two Steps Forward, Five Steps Back.

Since the 1973 ruling and its state-interest caveat, laws have slowly chipped away at the right to abortion, making it an entirely impractical right for many women, especially women belonging to vulnerable populations, such as the poor. In fact, according to a 2014 paper issued by Planned Parenthood, “immediately after Roe was decided, opponents of safe and legal abortion urged state and federal lawmakers to pass laws stripping away at or banning abortion.”

First, waiting periods disproportionately affect impoverished women. Waiting periods require at least a 24-hour time period between an abortion counseling session, where a patient provides informed consent to the abortion.  For women who cannot afford to miss two days of work, or for women who can only afford one round-trip bus ticket to and from the abortion clinic instead of two, waiting periods  legitimized under the guise of a safety precaution  act as an impediment to a timely, and therefore more safe, procedure.

Furthermore, the waiting period as a concept questions a woman’s ability to make informed choices about her own body. The period essentially assumes she has not fully thought through the decision by the time she makes it to an abortion clinic. This paternalistic approach to the right to abortion reinforces the patriarchal and systemic oppression of women in society.

Furthermore, parental consent requirements for young women also effectively deny certain women their right to abortion. Some young women may not be able to obtain the consent of their parents, or they may be too afraid to ask for fear of punishment or worse.

Regardless of the restriction, “having a law on the books allows the state to participate in the abortion decision,” Churchill said, “and does not allow women the right to abortion as a matter of justice.”

Other regulations include bans on later term abortions, bans on first-trimester, medication abortions, ultrasound requirements, staffing standards, hospital requirements and more. So while Roe served as a step forward in women’s rights by granting women the de jure right to abortion, anti-choice legislators and other anti-choice politicians have made every effort possible to ensure that women do not have the actual ability to practice that right.

Roe v. Wade was a victory for women because it legalized the right to abortion,” explains Costello.  “But Roe’s right to privacy has never been enough to defend and protect women’s access to abortion, as we’ve seen from the last two decades of restrictions on abortion rights.”

So now what?

Reproductive justice has been defined as “the complete physical, mental, spiritual, political, social, and economic well-being of women and girls, based on the full achievement and protection of women’s human rights.” This definition is broad, and so are the demands for reproductive freedom, bodily autonomy, privacy and the right to choose.

“Abortion is about justice for women, not privacy or personal choice,” Churchill said. “We have got to get back to the feminist demand for control over our lives, tell our personal stories and shake up the system through a powerful movement again.”

While Roe can certainly be counted in the successes in the fight for women’s rights because it put in the books the right to abortion, Churchill said it is not enough, and the fight is not over.  

“Repeal is taking all abortion laws off the books,” explains Churchill.  “Reform keeps laws on the books, which allows lawmakers to add restrictions to the laws, such as waiting periods, spousal notification requirements, age restrictions, and time restrictions.”

Women all over the country, not to mention the rest of the world, still lack access to proper contraceptive care, including birth control pills, “Plan B” pills, and abortion.  Clinics across the country are being shut down, shot at, and regulated to closure. Although Roe may have granted women the right to abortion, the burden has fallen, unfortunately, on women to protect that right, and with the all-encompassing definition of reproductive justice in mind, we still have a long way to go…baby.

Show your support…

…at the Roe v. Wade Anniversary Show, hosted by the National Women’s Liberation, featuring Cusp, Letters, As Is, and Just Neighbors, and celebrating the 43rd anniversary of Roe v. Wade.  The show will take place at The New Hardback Café at 211 W University Ave. on Friday, January 22.  Doors will open at 8pm.  The cover is a $5-$15 donation, and The New Hardback Café will be offering $2.50 PBR and Rolling Rock as well as $4.50 Swamphead.