Reproductive Rights and Racial Justice

Frequently Asked Questions

On June 24, 2022, the U.S. Supreme Court voted to overturn Roe v. Wade and the constitutional right to abortion in its ruling in the case Dobbs v. Jackson Women’s Health Organization. The 6-3 decision in Dobbs v. Jackson Women’s Health Organization dismantles the constitutional right to seek abortion and leaves the regulation of abortion to the states. Some states have already enacted extremely restrictive anti-abortion laws if not total bans, and many others will. 

We have answered the most frequently asked questions on reproductive rights, and how the dismantling of the constitutional right to abortion will impact people of color. 

How are reproductive rights connected to racial justice?

Access to abortion care has been a fundamental part of reproductive health care for Black, Brown, and low-income people throughout the country. The legalization of abortion in the 1970s, following Roe v. Wade, led to a 9.6% increase in Black women’s college graduation rate, according to a study by the Institute for Women’s Policy Research. Abortion access also resulted in a 6.9% increase in Black women’s labor market participation rate. This was three times higher than the corresponding rate for women overall. 

Overturning reproductive rights disproportionately harms Black, Brown, and low-income people who are most impacted by systemic inequalities. A recent study estimated that banning abortion in the U.S. would lead to a 21% increase in the number of pregnancy-related deaths overall and a 33% increase among Black people,  because childbirth has a higher mortality risk  than  abortion.  

What is the criminalization of abortion?

Several states already have laws that criminalize abortions, stillbirths, and miscarriages, but the Court's decision to overturn Roe v. Wade will likely empower more states to pass similar legislation. Under these laws, people have faced criminal penalties for self-managed medication abortion. The two drugs used for medication abortion, mifepristone and misoprostol, have been approved by the FDA since 2000, and their efficacy and safety have been confirmed repeatedly. Several states already have “fetal personhood” laws that grant fetuses full legal rights that may be used to bring severe criminal charges against people accused of violating abortion bans. Under these laws, the loss of a pregnancy could result in homicide, feticide, or aggravated assault charge.  

Black people are significantly more likely to be prosecuted and arrested under laws criminalizing abortion. A 2013 study by Pregnancy Justice (formerly National Advocates for Pregnant Women) analyzed hundreds of arrests and forced medical interventions on pregnant women between 1973-2005. 52%  of the women arrested were Black. In the South, Black women comprised nearly three quarters of those arrested and charged.   

How do existing restrictive abortion laws impact people of color?

People of color are more likely to live in states with the most restrictive abortion laws. The promise of Roe v. Wade has never been fully realized, particularly for people of color and people living on low incomes. 

Fewer Black and Latino women in America have health insurance, especially in states with extreme abortion restrictions, according to the U.S. Census Bureau. For example, in Texas, Mississippi, and Georgia, at least 16%  of Black women and 36% of Latinas were uninsured in 2019, some of the highest such rates in the country. 

What is Roe v. Wade?

In Roe v. Wade (1973), the Supreme Court established that under the Fourteenth Amendment, which protects a person’s liberty interest against state deprivation without due process of law, a person has a right to choose to have an abortion before the end of the first trimester . The Court concluded that when a pregnancy reached this point, state interests in the life of the fetus are high enough to permit states to prohibit abortions or take efforts to promote the state’s interest. Nonetheless, even after that point the state could not regulate or prohibit abortion where such care was necessary for a person’s life or health. 

This decision in Roe v. Wade meant that states did not have the right to ban abortion. Barred from flat-out banning abortion, states have passed more than 1,300 laws and restrictions that make it harder and more expensive to get an abortion. However, the court's decision in Dobbs v. Jackson overturned the constitutional right to seek abortion care established in Roe. 

What is Planned Parenthood v. Casey?

In Planned Parenthood v. Casey, the Court affirmed its decision in Roe and recognized a constitutional right to decide to have an abortion before viability and to obtain it without undue interference from the state.  

Planned Parenthood v. Casey was filed in 1992 to challenge the Pennsylvania Abortion Control Act, which required a waiting period, spousal notification, and parental consent for minors. The decision crafted the undue burden standard for abortion. 

What is Dobbs v. Jackson?

Dobbs v. Jackson explicitly asked the Court to overrule Roe v. Wade, the landmark 1973 decision that established a constitutional right to an abortion. In 2018, Mississippi passed a law that, with few exceptions, prohibits elective abortions where the fetus has reached 15 weeks. Shortly after the law was passed, Jackson Women’s Health Organization — the only licensed abortion clinic in Mississippi — sued the state and sought an immediate order restraining the law’s enforcement. 

Dobbs v. Jackson made its way to the Supreme Court where it was argued in 2022. In a 6-3 vote, the U.S. Supreme Court overturned the constitutional right to abortion. The decision overrules the right to seek abortion care established and affirmed by Roe v. Wade 1972 and Planned Parenthood v. Casey in 1992. 

What is medication abortion?

Medication abortion involves the use of medication to terminate a pregnancy, as opposed to a procedural abortion. Medication abortion is safe and effective for virtually anyone who wants to end apregnancy within the first trimester. More than half of all abortions in the United States are medication abortions.   

Mifepristone and misoprostol, the two drugs used in medication abortion, are approved by the Food and Drug Administration (FDA). Mifepristone and misoprostol are commonly referred to as the “Abortion Pill.” They can be safely used up to 10 weeks into a pregnancy. Unlike procedural abortions, medication abortions can be self-managed at home. 

What are mifepristone and misoprosol?

Mifepristone and misoprostol are drugs used to terminate pregnancy.  

The FDA has approved the use of mifepristone together with misoprostol for medication abortion for over 20 years. Studies have shown that the combination drug regimen terminates pregnancies successfully 99.6% of the time. There is a 0.4% risk of major complications, and an associated mortality rate of less than 0.001%.

Misoprostol by itself is also effective for termination of pregnancy, but is 80% to 100% effective, compared to 99.6% when used with mifepristone. A misoprostol only regime is also stricter and slightly longer than the combination method. It can also cause more side-effects, such as pain and bleeding. However, the misoprostol-only method is very common throughout the United States and in other parts of the world.   

Are medication abortions now banned?

No. Mifepristone is still available for use. Moreover, patients can also use a different medication, misoprostol, instead of mifepristone for the termination of pregnancy.   

However, there is a pending case regarding the U.S. Food and Drug Administration’s (FDA) approval of mifepristone in the U.S. Court of Appeals for the Fifth Circuit – Alliance for Hippocratic Medicine v. FDA. The lawsuit seeks to revoke FDA approval of mifepristone or restrict access to the drug. The case could result in a nationwide ban on mifepristone, but that has not yet been decided. In the meantime, mifepristone remains available until a court resolves the issue.

What does it mean for the Supreme Court to overturn the constitutional right to abortion?

Even though the Supreme Court has overturned the constitutional right to abortion, abortion did not automatically become illegal nationwide. Individual states decide whether and when abortions are legal. Following the Dobbs decision, outright bans and significant restrictions are already in place in many areas, including Texas. Some courts have blocked these laws from taking effect. 

Many states continue to allow abortion, and some have even begun making provisions to help serve those who live in states that are likely to restrict abortion. Some states have passed laws protecting reproductive rights and enshrining the right to seek abortion care in the state constitution. There were several abortion-related ballot measures in 2022 and voters overwhelmingly voted to protect reproductive rights. 

What are some examples of recent legislation on reproductive rights?

 

More than 15 states have enacted laws to protect the right to an abortion and enshrine the right in their state constitutions.  

Yet, many states have passed restrictive abortion laws or outright bans since the Supreme Court overturned the constitutional right to abortion. At least 13 states have outright banned most abortions. Other states passed near-total bans with very few exceptions and severe restrictions that make accessing abortion care nearly impossible. More states are expected to pass legislation criminalizing abortion. Many states already had “trigger laws” in place that immediately and completely ban abortions when the Supreme Court overturned reproductive rights. Some of these laws would make performing an abortion a felony, and doctors could face prison time. 

How does abortion access positively affect women?

Increased abortion access has had a demonstrably positive economic impact on women, and on Black women in particular. When people have the ability to decide if, when, and how many children to have, they are able to make conscious determinations about other aspects of their lives, including education and work. The Institute for Women’s Policy Research found that abortion access increased college attainment for women, with “[i]ncreases in postsecondary attainment . . . concentrated among Black women, who had much larger decreases in teen fertility than white women.” 

How does abortion access affect children?

Children born to women with abortion access had lower rates of poverty, were more likely to graduate college, and were less likely to receive public assistance as adults. Conversely, the financial consequences of abortion denial can be severe. One study revealed that individuals who were denied abortions and eventually gave birth were four times more likely to have household incomes below the federal poverty level and were more likely to report being unable to afford basic necessities. 

LDF's Work

LDF supports efforts to promote equitable access to reproductive healthcare, emphasizing the impact of restrictions on abortion access on Black women and other pregnant people living in poverty, and has litigated to ensure nondiscriminatory delivery of babies, as well as the adequacy of health care and hospital services available to Black communities.

Alliance for Hippocratic Medicine v. FDA

Filed: April 2023

On April 7, 2023, LDF filed an amicus brief in the United States Court of Appeals for the Fifth Circuit in Alliance for Hippocratic Medicine v. FDA, a case regarding the U.S. Food and Drug Administration’s (FDA) approval of mifepristone. 

LDF’s brief outlines the harms a ban on the sale of mifepristone would have on people who have relied on its availability for two decades.  The impact would be acutely felt by Black and low-income people, who rely on the right to safe, legal abortion at higher rates than other groups, and face profound inequities in accessing essential health care as a result of a long history of systemic racism and discrimination. Over half of all abortions in the United States are medication abortions, which research has repeatedly shown to be both safe and effective, and mifepristone has shown no significant risk of harm to patients.

 Dobbs v. Jackson Women’s Health Organization

Filed: September 2021

In September 2021, LDF joined an amicus brief with 17 other civil rights organizations in Dobbs v. Jackson Women’s Health Organization, which directly challenged Roe v. Wade and Planned Parenthood v. Casey. Together, those cases confirmed that the Fourteenth Amendment’s liberty interest includes the right to physical autonomy without government interference. Thus, the Court previously affirmed and reaffirmed that pregnant people have a right to choose to seek abortion care up to the point in pregnancy when a fetus becomes viable, which is usually around 24 weeks into the pregnancy. Only after that point in the pregnancy can the state limit or prohibit elective abortions.

The amicus brief highlights that substantially limiting access to late-term abortions, as the Mississippi law and other anticipated laws throughout the country would do, would inflict grievous harm on Black and low-income people in particular, who have relied on the right to an abortion—and the right to access abortion later in pregnancy—at higher rates than other groups.

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