BY MEGAN MUNCE, Texas Tribune, texastribune.org
The U.S. Supreme Court eliminated the constitutional protection for abortion in a much-anticipated ruling Friday that will greatly affect access to reproductive health care in Texas and beyond. Here are some answers to frequently asked questions from our readers.
What is Roe v. Wade?
Roe v. Wade is a 1973 U.S. Supreme Court case that challenged Texas law that banned abortions except when needed to save the pregnant person’s life. Previously, the court’s decision in Roe guaranteed the constitutional right to have an abortion during the first trimester of pregnancy.
The case was overturned Friday by the court’s decision in Dobbs v. Jackson — a suit against a Mississippi law that banned nearly all abortions after 15 weeks of pregnancy.
The ruling in Dobbs doesn’t mean that abortions are now unconstitutional, but it leaves to individual states to decide whether to protect the right to an abortion.
Why was Roe v. Wade overturned?
The court held that abortion is a “question of profound moral and social importance.”
In the majority opinion, Justice Samuel Alito argued that the holding in Roe wasn’t well founded in history or precedent, and that abortion is a political matter that should be left up to citizens and their elected officials to decide.
“The Constitution is neither pro-life nor pro-choice. The Constitution is neutral, and this Court likewise must be scrupulously neutral,” he wrote.
In their dissent, the three liberal justices of the court argue that the justices who decided Roe acknowledged the moral issue at hand by allowing states to regulate abortions after viability.
“Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens,” the dissenters wrote.
Is abortion still legal in Texas?
Texas’ trigger abortion ban is set to go into effect 30 days after the Supreme Court issues its final judgment, which typically happens a month after the initial opinion. The law will be a near-complete ban on abortion in the state of Texas.
People who get abortions would not be prosecuted under the law, but doctors who perform illegal abortions could be sentenced to life in prison or fined up to $100,000.
It’s not clear if the state’s trigger laws are even necessary to ban the procedure. Abortion clinics said Friday they were no longer able to provide abortion servicesafter Texas Attorney General Ken Paxton said that state laws that banned abortion before Roe v. Wade — and were never repealed — could now be in effect in Texas. Practically, the procedure is already banned here.
Does the law apply to military bases and Native American reservations?
The U.S. military doesn’t prohibit abortions, but the military also doesn’t cover the costs of abortions or offer abortions at military facilities, according to The Wall Street Journal. Members of the military serving in states that ban abortions would have to travel out of state to obtain an abortion legally.
Meanwhile, abortions have historically been hard to access on Native American reservations because of the Hyde Amendment, which bans the use of federal funds for abortions. Because the Indian Health Service is federally funded, the agency already restricts abortions to cases in which the pregnant person’s life would be endangered by carrying to term.
Could this law apply to me if I got an abortion in the past?
No. Based on the ex post facto clause in Article I, Section 10, of the Constitution, states cannot pass laws and retroactively apply them to actions taken before they were passed.
Justice Brett Kavanagh wrote in his concurring opinion that states could not impose punishments on people who performed or received abortions prior to the Friday ruling.
Can I get abortion in Texas if I have a life-threatening pregnancy?
Yes. Texas’ ban on abortion makes exceptions for cases in which an abortion would save the pregnant patient’s life or prevent “substantial impairment of major bodily function.”
Are there exceptions in Texas’ ban on abortion for rape or incest?
No, there are no exceptions for rape or incest in Texas’ ban on abortion. Advocates say this could trap victims of domestic abuse in their abusive relationships. Women who are pregnant or recently gave birth are twice as likely to die by homicide than any other cause of maternal mortality, most often at the hands of an intimate partner.
Is it still legal for Texans to get abortions in other states?
Yes. There are 27 states where the right to an abortion remains protected by state law, according to Politico. Under the Constitution, interstate commerce is left to Congress to regulate. Kavanagh wrote in his concurring opinion that the right to interstate travel likely outlaws states from preventing their residents from traveling to another state to get abortions. The court didn’t officially rule on whether such laws would be constitutional.
In the dissent, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan worried that leaving the door open could lead some states to pass such laws, and that the cost of travel would cause inequities in who can and can’t access an abortion.
“Above all others, women lacking financial resources will suffer from today’s decision,” they wrote.
Where abortions will be banned
The U.S. Supreme Court ruled to overturn Roe v. Wade, which eliminates the constitutional protection for abortion and allows states to set their own laws. Texas passed a law that sets up an abortion ban that takes effect 30 days after the Supreme Court’s formal judgment is issued. Most of Texas’ neighboring states have passed similar trigger laws. Abortions are legal in Kansas, but residents will vote in August on a constitutional amendment to overturn protections.
Are birth control and emergency contraceptives still legal?
Yes. The ruling in Dobbs v. Jackson overturns only the right to an abortion. Contraceptives such as birth control and Plan B continue to be constitutionally protected under separate Supreme Court cases, and the majority opinion stressed that it does not apply to separate rights, such as contraceptives.
However, Justice Clarence Thomas issued a concurring opinion inviting challenges to rights such as contraceptives, same-sex marriage and same-sex relationships.
Who will be affected by today’s ruling?
Advocates say the ruling will disproportionately impact pregnant people who lack the funds to travel out of state and Black mothers.
Three-quarters of people accessing abortion are low income and poor, said Dr. Bhavik Kumar, abortion provider at Planned Parenthood Center for Choice in Houston. While wealthy Texans may be able to travel to New Mexico or Colorado to obtain an abortion, travel adds additional burdens to those who already struggle to afford the procedure itself, which typically costs about $1,000 to $4,000. However, some people may be able to get assistance through charity funds that provide reimbursements for abortion-related expenses.
Black women are also disproportionately impacted by death or serious illness due to pregnancy. According to a study by the University of Texas Health Science Center at Tyler, the rate of severe maternal morbidity for Black women in Texas is nearly double that of white women.
Is there precedent for the court rolling back rights like this?
Overturned decisions are rare for the Supreme Court.
According to an analysis by Quartz, less than 2% of rulings overturn prior holdings. Famously overturned cases include Plessy v. Ferguson, which established the “separate but equal” doctrine for school segregation and was later overruled by Brown v. Board of Education, and Lawrence v. Texas, which overturned Bowers v. Hardwick and established a constitutional right for two people of the same sex to engage in intimate sexual conduct.
If you or someone you know has been sexually assaulted, you can receive confidential help by calling the Rape, Abuse & Incest National Network’s 24/7 toll-free support line at 800-656-4673 or visiting its online hotline.
Disclosure: Planned Parenthood and Politico have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
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