In 1973, the United States Supreme Court issued its landmark decision in Roe v. Wade, declaring abortion a fundamental right. Women of my generation—Generation X—have gone through our entire reproductive lives with Roe on the books. Millennials, too, have never known life without it. But over the past forty-six years, courts and state legislators have slowly chipped away at Roe. Most notably, in 1992, Planned Parenthood of Southeastern Pennsylvania v. Casey held that abortion restrictions are unconstitutional if they place an “undue burden” on women. This weakened legal standard opened the door for states to impose obstacles such as mandatory waiting periods, parental consent requirements, and biased counseling. Since 1995, 1041 statewide measures have been enacted that limit or ban abortion, compared to 554 protecting the right.

Roe has been controversial from the day the decision came down. In this moment in history, however, it is particularly contentious. In the fall of 2018, Congress confirmed Supreme Court Justice Brett Kavanaugh, who was accused of sexual misconduct and has a record of vociferous opposition to abortion rights. The Trump administration has launched an administrative assault on reproductive rights, including reducing insurance coverage for abortion care and rolling back an Obama-era rule that required employers to cover contraception in their health insurance plans. At the same time—and partly in response to recent curtailments of reproductive freedom—we are experiencing a resurgence of grassroots advocacy for women’s rights that we have not seen since the 1970s. With #metoo, the Women’s Marches, and the record-breaking election of 117 women to Congress in 2018, women are raising their voices and demanding their rights, including the right to control their own bodies.

On January 30, 2019, Marin County Women Lawyers hosted a luncheon with Amy Everitt, California State Director for NARAL Pro-Choice California. Afterwards, I had the opportunity to speak with Amy about the status of Roe and women’s reproductive freedom in today’s political climate.

What is your view on the future of Roe v. Wade?

With Justice Brett Kavanaugh on the Supreme Court and a 5-4 majority, the future of Roe v. Wade is not bright. We expect any one of 20 cases currently pending in the system to get to the Supreme Court soon, which will gut or fundamentally change Roe, so that abortion rights will vary based on the state in which you live.

Does the February 7, 2019 SCOTUS decision relating to abortion rights in Louisiana give you any indication about how the court may decide future similar cases?

This ruling should not give us hope. Donald Trump’s anti-choice justices, Gorsuch and Kavanaugh, acted precisely as we expected they would. Justice Kavanaugh even went out of his way to author his own dissent. Two years ago, Chief Justice Roberts voted to uphold a Texas law essentially identical to Louisiana’s. His vote to grant a stay in the Louisiana case does not mean that he’ll vote to strike down the law when it comes back before the court.

If Roe is gutted or overruled, then abortion laws will be in the hands of the states. What is the state of abortion rights in California?

Better than most states for sure. In California, we have a constitutional protection for women’s bodily autonomy. Our state courts have supported access. We have great laws. But our access is not great. Forty-three percent of California counties have no abortion provider. That represents 5% of our overall population, which represents about two million women.

In order to improve access, California has worked to increase Medi-Cal reimbursement rates for reproductive health services. In his proposed budget, Governor Gavin Newsom is investing $100 million dollars in sexual and reproductive health services. A few years ago, NARAL sponsored AB 154, the “early access” bill, to improve abortion access by increasing the types of trained health professionals who can provide first-trimester abortions. And this year we have joined the coalition sponsoring the College Student Right to Access Act to guarantee that if students need to access abortion care, they can access medication abortion right on campus, instead of facing the added burden of seeking care off campus.

What is the status of abortion laws in other states?

About 23 states are poised to make abortion illegal immediately. They have trigger laws that go into effect when Roe is overturned. Other states have pre-Roe bans that will automatically become active. Others have legislative intent to ban abortion. In other words, they have the votes in the legislature and governor’s office to make abortion illegal.

Even with Roe still on the books, we’re seeing laws that seek to ban abortion. For example, “heartbeat bills” ban abortion at the point when a heartbeat can be detected. That is usually around six weeks, before most women even know they are pregnant. A recent heartbeat bill proposed in Ohio would send women and doctors to jail if they violate it.

When legislators pass laws banning abortion, it means that women and doctors will go to jail. We’re already seeing the criminalization of women related to the loss of a pregnancy. In Indiana, Purvi Patel was convicted and sentenced to 20 years in prison for taking pills ordered online to end her pregnancy. In Arkansas, Anne Bynum was convicted for “concealing a birth” and sentenced to six years in prison after she experienced a stillbirth.

Women are going to jail for ordering pills online or using drugs when pregnant. Bodily autonomy is being taken away from women. That’s what currently happens in El Salvador and we’re seeing the same thing starting to happen here.

Some states are moving to protect abortion rights in the absence of Roe. New York just passed a law to codify current Roe law.

Where does the American public stand on abortion?

Poll after poll, whether it’s NARAL or the New York Times or Gallup, show that more and more Americans believe that women should be able to access abortion. Polling shows that 7 out of 10 Americans support it. It’s not that everyone identifies as pro-choice. Many say that they wouldn’t access it themselves, but at the same time, they believe that abortion should remain safe and legal, and would not tell anyone else what to do. There’s compassion out there and an understanding that women—not the government—will make good decisions for themselves.

Does support for abortion vary based on demographics, such as age, geography, socio-economic status, religion, race/nationality, or political party?

Support for abortion rights is strong across all sectors. It transcends race, ethnicity, religion and party. People who identify as strong conservatives still support abortion rights by more than 50%. Support among African-Americans is 89%.

Millennials tend to be very supportive of reproductive rights. For them, it’s not all about abortion. It’s about bodily autonomy and the government not telling them what to do.

We often discuss abortion in moral or ethical terms. But abortion has an economic impact as well. Can you describe that connection?

When women and families are deciding to have children, it has a huge economic impact. Six in 10 women who seek abortion care are already moms. They choose abortion so they can support the children they already have.

You can’t have economic security if you can’t control when and how you choose to have or expand a family. Decisions about what jobs you can have and what educational opportunities become limited. If you can’t afford to access abortion care you can’t afford to have economic freedom.

What does the future hold for reproductive rights in America?

For a long time, people took reproductive freedom for granted. What we are seeing in the last few years is women focusing on their rights. Now women are running for office. The far right has gone too far and they’re running into pro-choice America, who are linking arms and pushing back. The peril that Roe is in is motivating more support.

Note: MCBA welcomes the expression of differing viewpoints and the views expressed in this article are those of the author and interview subject. They are not intended to reflect those of MCBA or its members.