This spring, the U.S. Supreme Court will consider its first major abortion rights case since the confirmations of Justices Neil Gorsuch and Brett Kavanaugh, and speculation about the future of abortion rights has reached new heights.
With the case on the horizon, a popular clarion call is to "protect Roe" — shorthand for Roe v. Wade, the 1973 Supreme Court ruling that confirmed the constitutional right to abortion, and the line of cases under it that shape the protections in place today.
But Wednesday marks 47 years since Roe was decided, and this call to action falls short. It fails to recognize what it will really take to overcome a decades-long coordinated campaign of antiabortion policymaking and to ensure that abortion care is genuinely accessible to anyone who wants it. With the upcoming case looming large, the call to action fails to recognize three critical points:
First, the court must strike down a restrictive Louisiana abortion requirement or risk its integrity altogether. Using this case to overturn or further gut Roe would be an extreme departure from the principles to which the court is supposed to adhere. In June Medical Services v. Gee, Louisiana abortion providers are challenging a state-imposed restriction designed to shut down clinics and decimate abortion access by requiring that providers have admitting privileges at a local hospital.
Respect precedent on restrictions
Admitting privilege requirements are designed to sound reasonable, but in reality, they have nothing to do with a provider’s skills or qualifications and are often denied to abortion providers for political reasons. The Supreme Court recognized as much when it struck down an identical Texas law in 2016. The only thing that has changed since is the composition of the court.
To maintain its integrity, the court must respect its own precedent and strike down the Louisiana law. Any decision short of that would be an extreme — and highly political — miscarriage of justice and an indisputable signal that constitutional rights are only as sacred as the whims of a changing court.
Second, even without overturning or gutting Roe, abortion is already a right in name only for many people. Policymakers hostile to abortion began chipping away at even the basic promise of Roe almost before the ink was dry on the 1973 decision. Whether due to government bans on coverage of abortion, restrictions that impose medically unnecessary barriers to care or close down clinics, or the stigma, hostility and violence that make getting care that much more difficult, the constitutional right to abortion is already more symbolic than meaningful for many.
These barriers are stacked most directly against people already struggling to get by or are marginalized from timely, affordable, high-quality health care — such as people with low incomes, people of color, young people, LGBTQ individuals and people in many rural communities. Any further rollback of abortion rights would continue to impact these populations disproportionately, while those with more resources and privilege would continue to find ways to get the care they need.
Fortunately, Congress can take important steps to help make Roe a reality for more people by passing two critical bills: the Women’s Health Protection Act, which would prohibit medically unnecessary restrictions on abortion, and the Equal Access to Abortion Coverage in Health Insurance Act, or the EACH Woman Act, which would restore insurance coverage of abortion for people enrolled in Medicaid and other federal programs.
States should go further than Roe
Third, when it comes to abortion access, Roe is a floor and not a ceiling. It represents the minimum standards a state must meet to respect the constitutional right to abortion. It does not prevent states from going above and beyond its parameters to protect and expand access to abortion.
For example, Oregon and Vermont have led the way with bills that move beyond this constitutional floor by protecting the right to abortion throughout pregnancy and supporting the autonomy of people seeking abortion care. To protect the rights, dignity and autonomy of pregnant people in their jurisdictions, policymakers across the United States would do well to follow suit.
When so much is on the line, the message that we must protect Roe is compelling. But Roe was decided nearly half a century ago, and politicians have been trying to get between pregnant people and the right it guaranteed ever since.
It’s now 2020, and the fight is about so much more than keeping abortion legal on paper — it’s about ensuring that all people are able to actually receive abortion care when and how they want it, regardless of their ZIP code, income, sexual orientation, gender identity or immigration status. So, sure, let’s protect Roe. But we cannot stop there.
This op-ed is also available at USAToday.