The Supreme Court may kill Roe v. Wade — but there are other ways to protect reproductive rights

On May 17, the U.S. Supreme Court agreed to hear arguments in Dobbs vs. Jackson Women's Health Organization — a case dealing with the constitutionality of a Mississippi abortion law passed in 2018. Abortion rights activists fear that with the High Court having moved so far to the right, the likely outcome of Dobbs will be the overturning of Roe v. Wade. This week in an article published by Slate, attorneys Julie F. Kay and Kathryn Kolbert (former president of People for the American Way) are pessimistic about Roe's survival and outline some ways in which activists can fight for reproductive rights in a post-Roe America.

The High Court moved even more to the right in 2020, when the late Justice Ruth Bader Ginsburg, a liberal, was replaced by the far-right social conservative Justice Amy Coney Barrett. Of the nine justices, six were appointed by Republican presidents — and the other three were nominated by Democratic presidents.

Kay and Kolbert warn that the Supreme Court's "recent decision to review the constitutionality of Mississippi's law banning all abortion at 15 weeks" puts Roe "directly on the chopping block."

"Former President Donald Trump's appointment of Justice Amy Coney Barrett means that five ultra-conservative justices no longer need to adopt a more moderate approach just to persuade Chief Justice John Roberts to join them in overturning existing protections," Kay and Kolbert explain. "If the Court permits the Mississippi law to take effect, states will be free to ban all or most abortions — and many of them are likely to do so. We estimate that as many as one-third of the states will immediately or soon thereafter ban abortions."

Passed by the Burger Court in 1973, the Roe v. Wade decision legalized abortion nationwide. Overturning Roe would not mean a nationwide ban on abortion, but it would mean that abortion's legality would be decided on a state-by-state basis. So, in a post-Roe environment, abortion might be totally illegal throughout Texas but legal across the state line in New Mexico — or illegal in Gary, Indiana but readily available across the state line in Chicago.

Post-Roe, Kay and Kolbert stress, it will become necessary to defend reproductive freedom and "make a big stink" at the state level.

"It is too late to change the makeup of the Supreme Court to avoid the blow the Court is likely to deliver," Kay and Kolbert write. "But it's not too late to preserve, and even grow, reproductive freedom through other pathways. Influencing those in state legislatures and in Congress who will determine the next round of abortion laws is critical. Saving abortion rights from the ax requires those who value reproductive freedom to be politically active in many capacities."

A decision in Dobbs is probably a year away. The U.S. Supreme Court is scheduled to begin hearing arguments in the case in October, and CNBC's Tucker Higgins reports that a decision "is likely to come by June 2022." In other words, it's possible that Roe could be overturned several months ahead of the 2022 midterms.

Kay and Kolbert advise, "Voting in every election — not just the presidential ones — and all the way down ballot, including legislative and judicial candidates, is key. Before Election Day, abortion rights supporters need to visibly campaign for candidates who will champion these rights once elected. The top immediate priority must be to let Congress know that voting reforms are urgently needed to halt right-wing voter suppression and gerrymandered districts, so as to preserve the basic ability to vote anti-abortion politicians out of office."