Maternal health care advocates raised alarm Tuesday after a leaked U.S. Supreme Court opinion suggested that the nation’s highest court is poised to overturn Roe v. Wade, a decision that would limit abortion access nationwide and could exacerbate racial disparities in births.
Chief Justice John Roberts confirmed the authenticity of the leaked opinion, published Monday evening by Politico, but said the 98-page document “does not represent a decision by the Court or the final position of any member on the issues in the case.” The court is expected to issue a final decision this summer in the case, which is related to Mississippi’s strict abortion law.
If the court overturns Roe v. Wade, it would have a severe effect on Black communities. Black women receive about a third of all abortions in the country — the largest proportion of any racial group, according to the latest data from the U.S. Centers for Disease Control and Prevention. The rate of abortions among Black women is more than three times that of white women. Limited access to comprehensive sex education, health care, and adequate insurance coverage contribute to the high abortion rate, experts said — structural issues that contribute to unplanned pregnancies.
“For many people, this is a surprising day. For many people, this is a horrific day,” said Michele Bratcher Goodwin, a law professor at the University of California, Irvine. The court’s draft majority opinion demonstrates “a complete disregard for the health, safety, and liberty of women in this country, and particularly Black women and brown women.”
Restricting abortion rights would have wide-ranging health and legal implications in Black communities, experts said. If abortions go underground, advocates worry that Black people seeking them out would be disproportionately criminalized and be more susceptible to negative health outcomes.
Black women are at least 3 times as likely as white women to die from pregnancy-related causes, according to CDC data.
Shifts in Views on Roe v. Wade
Reversing Roe v. Wade will allow individual states to restrict access to abortion or deny it altogether. Thirteen states have passed “trigger laws” that will automatically ban abortion if the 1973 ruling is overturned, many of them Southern states where Black women are also disproportionately likely to live.
Texas has already enacted an anti-abortion law that prevents procedures after a heartbeat is detected or after six weeks of conception. Idaho followed Texas and passed a similar law in March, even though it had its own anti-abortion ban on the books that predates Roe v. Wade.
Views on abortion have changed dramatically in recent years. In the early 2000s, Black Americans were significantly less likely than others to view abortion as “morally acceptable.” But now, about two-thirds of Black adults believe abortion should be legal in all or most cases, according the Pew Research Center — a higher percentage than white Americans.
But a strong anti-abortion movement continues to exist. Cherilyn Holloway, the founder of Pro-Black Pro-Life, noted that legalizing abortion hasn’t solved maternal health disparities for Black women. She drew on a long-standing argument of the anti-abortion movement that, because abortion is most common among Black women, it’s a tool to limit population growth.
“Who does this really benefit?” she said of abortion. “We are not the benefactors.”
It’s an argument that made its way into a footnote of the leaked Supreme Court opinion, authored by Justice Samuel Alito, noting that some supporters of Roe “have been motivated by a desire to suppress the size of the African American population.”
The argument “has been used historically to diminish and undermine the agency and autonomy of Black women,” said Dr. Jamila Perritt, president and CEO of Physicians for Reproductive Health. “Suggesting that we are unable to make thoughtful and informed decisions about our own health and well-being is insulting.”
‘Racism is still alive’
In addition to the health implications, advocates worry that a reversal may disproportionately criminalize Black communities, which are already overrepresented in the United States’ criminal justice system. Katherine Macfarlane, a leading expert on civil rights litigation and professor with the Southern University Law Center, said overturning Roe v. Wade could create “two Americas when it comes to the right to abortion.”
Abortions are “only going to be accessible to privileged people, and — generally privileged white women who can afford to travel [to other states] or to Canada,” she said. “This is really going to impact women of color most severely,” she said.
There are over 36 million Americans of reproductive age whose right to access an abortion is at risk. That includes 1 in 9 who live in poverty and cannot afford the on-average $500 out-of-pocket procedure.
“I think what I’m most worried about immediately is people who don’t have access to top-shelf health care — and already we see sexism and racism in the health care industry to begin with,” Macfarlane said, adding, “How far would you have to travel? Will you have to go through Texas? What’s the closest state for a woman in Louisiana? It starts to become a tremendous barrier, and I don’t think the answer to that is not having an abortion, I think the answer is an unsafe abortion.”
Goodwin noted that current health disparities are rooted in deep historic inequities. Before hospital desegregation in the 1960s, “Black people were segregated from being able to seek care from traditionally white hospitals and clinics and literally died on the front steps of those places. It is that backdrop that we need to become more honest about and more aware of in this country,” said Goodwin, who also pointed to medical history such as Marion Sims — known as the “father of modern gynecology” — and his experiments on Black enslaved women without anesthesia in the 1800s.
“Racism is still alive within the medical space,” said Goodwin, “and those issues are compounded when the person is pregnant and feels vulnerable.”
The Politics Behind Reproductive Health
President Joe Biden is calling on elected officials and voters alike to take action.
“I believe that a woman’s right to choose is fundamental, Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned,” Biden said in a statement Tuesday morning. “If the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November.”
Other elected officials have similarly made public statements about the need for a legislative response.
“Black and brown folks have been sounding the alarms for years and none of it was hyperbole,” said Rep. Ayanna Pressley in a statement. “We must legislate as if our lives depend on it, because they do. The Senate must move with urgency to abolish the filibuster and pass the Women’s Health Protection Act without delay.”
In June 2021, Democrats in Congress introduced the Women’s Health Protection Act, which is designed to guarantee equal access to abortion care everywhere. The bill was crafted after Texas’ law passed in May 2021.
No House Republicans have co-sponsored the bill, which is currently making its way through the Senate. Regardless of pending legislation, Macfarlane says it is up to state lawmakers to keep abortions legal, since the Supreme Court “has also really narrowed Congress’ right to legislate in the area of health care. The Affordable Care Act was barely upheld.”
The Justice Department has already taken legal steps to prevent states from enforcing anti-abortion laws and have charged at least 10 men and women for conspiring or threatening to stop pregnant individuals from gaining access to health care facilities to get an abortion. A spokesman for the Justice Department said they will not be issuing a statement about the drafted opinion.
What’s Next for Abortion Rights?
Holloway, with Pro-Black Pro-Life, views the current political moment as a time to focus on the structural drivers of inequities in maternal health outcomes and disproportionate abortion rates. She says economic support for Black families may help some pregnant people choose to bring their pregnancy to term.
“We’re staring at the problem in the face,” she said, referring to poverty rates in the Black community. “We want to acknowledge it, but we don’t want to address it.”
Others have turned the draft of the decision into an opportunity to advocate for increased protections around access to reproductive health care.
“Roe was never the best that we could get because Roe was more about protecting physicians. In fact, the word physician appears more in the Roe decision than the word woman does,” said Monica McLemore, a professor at the University of California, San Francisco. “What are we going to build that will be better?”