What Lies Ahead for Abortion Rights?

Last week, the Supreme Court heard arguments in a case that could have wide repercussions for abortion laws across the country, as well as the public perception of the court itself.

“The court spoke to the risk that this decision could make the court look like a political body,” said attorney Marcia Boumil, a professor of public health and community medicine at Tufts University School of Medicine. “Unfortunately, it appears that it is headed that way.”

At issue is a Mississippi law, passed in 2018, that bans abortions after 15 weeks of pregnancy, which is at odds with the previous standard that guaranteed abortion rights up until the time a fetus would be viable outside the womb, or about 24 weeks into pregnancy.

The case was closely watched by both sides of the debate, and the arguments last week left no doubt that this was the most significant abortion rights case in decades. Some of the justices in the six-member conservative majority asked questions that suggested they would not only uphold the Mississippi law, but would consider overturning Roe v. Wade, the landmark 1973 ruling that established abortion as a constitutional right.

Boumil is director of the School of Medicine’s JD/MPH Program, a dual degree program run in conjunction with the law schools of Boston College and Northeastern University. Her research focuses include health policy and health law and ethics. Tufts Now spoke with her about the Mississippi case and what it may mean for abortion access in that state and around the U.S.

Tufts Now: What struck you most about the questions the justices asked?

Marcia Boumil: Justice Brett Kavanaugh, in making his point that precedents are overruled when wrong, cited several cases in which the court reversed itself in the interest of expanding human rights. The logical result for him is that he is expanding fetal rights—but abridging the rights of the mother. I also note that during his confirmation hearings he made a point of implying that Roe v. Wade was a precedent he would respect.

Justice Amy Coney Barrett’s questions about safe haven laws [which decriminalize the abandonment of infants at designated places, such as hospitals] was telling about her position. Adoption has always been an option, so the fact that safe havens now make adoption easier isn’t particularly relevant.

Chief Justice John Roberts seems to want to compromise and thought 15 weeks is a reasonable compromise. It isn’t. Young and poor women who need time to know they’re pregnant, think it through, organize logistics—such as travel, privacy, and payment—will be most vulnerable. And unless the decision explicitly allows abortion through 15 weeks, it invites states to impose their own arbitrary point. Viability is at least quantifiable–even if it is likely to change in the future as technology gets better.

What role does the question of fetal viability play in this case?

Fetal viability is important because it is a definable benchmark and not an arbitrary line in the sand. It’s also far enough out—about 24 weeks—that most women have a reasonable chance to exercise their right before it’s too late. The logic to viability is that it is a point when the interests of the state increase because the fetus could live if it is removed from the mother. It’s a point at which you can say, there is the state’s interest here, there is the women’s interest here, we can balance them. But 15 weeks is just an arbitrary point. If the opinion says 15 weeks is okay, does that also mean that if we come up with a law that says seven weeks or zero weeks, is that also okay? So a lot is going to depend on how this decision is written.

Based on what you heard at the oral arguments, what outcomes do you think are likely?

The Court can overturn Roe v. Wade, saying there’s no constitutional right to abortion and it’s completely up to the state. Or it can pick a different benchmark for when abortions are allowed, such as up to 15 weeks, which is the end point in the Mississippi law. So we need to know that.

The three liberal justices undoubtedly will uphold Roe v. Wade in its entirety.

Roberts, who wants to be the next Justice Anthony Kennedy—the centrist who voted both ways and was particularly important when the court was evenly divided—seems to favor a compromise at 15 weeks. Since the court chose to hear this case, and not one of the other abortion cases—such as the Texas law banning abortion after 6 weeks—Roberts could straddle that line.

But note that what the justices ask during oral argument doesn’t always accurately reflect their ultimate position. They will talk to each other, respect each other, and evaluate the enormity of this decision. Opinions change after that. And sometimes they ask the hard questions because they’re set on the “easy” ones. So you just never know.

If the court moves to overturn Roe v. Wade, what will the repercussions be?

Huge. States can decide for themselves one by one. Most blue, Democratic states like Massachusetts will pass a strong pro-choice law. Most red, Republican states may ban abortion to the extent allowed by the decision. And the purple states will have to duke it out in their own legislatures. People in red states who can afford to travel will do so. Lots of young and poor women—who cannot so easily travel—will be unable to get an abortion.

If you’re pro-choice, it will dramatically affect a women’s right to choose. Any women of child-bearing age who might choose abortion will need to be vigilant about monitoring pregnancy and be prepared to act immediately, if abortion is even legal at all in her state. The morning after pill (plan B or Emergency Contraception) and mifepristone (chemical abortion up to about 10 weeks) will become more important.

Do you think this case could affect access to contraception and emergency contraception?

Contraception is likely settled; I don’t see that going away. But EC and mifepristone could both be at risk if the constitutional right to abortion is overturned altogether. If the standard becomes 15 weeks, they have more of a chance to stand as they are.

If the court rules in Mississippi’s favor, how will it affect public health in that state? In the rest of the nation?

I think it depends on what side of the fence you’re on. If you’re pro-choice, the inability to choose or the need to make decisions right away will be huge. It will set back the right of women to fully participate in the work force; it will force women to carry unwanted pregnancies, for whatever reason; it will add stress, financial hardship, compromise mental health, etc.

If you’re pro-life, it likely doesn’t affect your options, since you could always have chosen to carry a pregnancy, so it’s a religious/personal/political issue for you. There are those who feel deeply about ending human life. There are women, both pro-life and pro-choice, who agonize over this decision, sometimes for a lifetime, so they may get some relief. There are lots of regrets over abortion, so maybe there is less regret. My biggest issue is that young women, poor women, and others who need an abortion because of rape, etc., will have to take more chances, such as in traveling or seeking illegal abortions, and compromise their own health to accomplish abortion—or be forced to carry an unwanted pregnancy.

When you wrote your book Law, Ethics and Reproductive Choice in 1994, it had been just about 20 years since Roe v. Wade. At the time, did you think that Roe v. Wade had permanently protected the right to an abortion?

In 1992, in the cases of Planned Parenthood v. Casey, there was a real chance that Roe would have been overturned. Justice Sandra Day O’Connor rallied two other Republican appointees, Kennedy and David Souter, to save Roe. That was a pretty unlikely result. At that point I knew it would be at least another decade before the court would tackle it again, but this political climate was always a possibility.

Some of the liberal justices on the court questioned whether overturning Roe v. Wade would diminish public trust in the court. Justice Sonia Sotomayor asked: “If the people believe it is all political, how will the court survive?” Is that a possibility?

The Roe v. Wade ruling itself was an overreach for the court, basically writing a law that didn’t exist. Most people acknowledge that was a “political” outcome—acting as a legislature when the legislature was too divided to act itself. And of course, it still is. That’s the argument for letting the states decide for themselves. But if states are allowed to decide, so many women will not have a choice—and hence the question of whether it is a constitutionally protected right of liberty or privacy that states should not be permitted to deny.

This case is unique in the sense of it is high profile and it really is a watershed moment for the court’s credibility as a non-political body. But I fear it’s inevitable that political considerations will weigh heavily in the decision. At the end of the day, people are deeply divided on this issue and few people will say they’re “in favor” of abortion. They greatly favor choice, but abortion is difficult even for the most committed pro-choicers. I think most people realize the court cannot be completely free of politics and this decision is likely to reinforce that cynicism.