Roe is in jeopardy, and it’s a voting rights issue

The Supreme Court will vote to overturn the landmark abortion case known as Roe v. Wade, according to a draft decision for a case regarding a proposed abortion ban in Mississippi. The leaked draft, published Monday evening by Politico, includes incendiary language by Justice Samuel Alito that rejects the premise of the 1973 Roe decision, and in fact blames Roe for current political and cultural divisions in the U.S., even referring to Roe as a “restrictive regime.” “We hold that Roe and Casey must be overruled,” Alito wrote, referencing a subsequent Supreme Court decision in 1992 that upheld abortion access. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”

According to the Center for Reproductive Rights, if Roe is overturned, 25 states will ban abortion. Twenty-two states would have at least some level of abortion access, thanks to state laws that protect reproductive rights. In the remaining three states, it’s not clear what might happen if Roe falls, but, the Center writes, “concern is warranted.”

In states like Texas, abortion will be criminalized entirely within their borders. That means those living in these states without operating abortion clinics will be forced to travel hundreds if not thousands of miles for care, and potentially spend thousands of dollars on the procedure; this, of course, is only the case for those who can afford to do so. Patients with fewer means and resources will be left to carry unwanted pregnancies to term.

While it was always likely that the majority-conservative bench would have an unfavorable opinion of Roe, both the overturning of what has repeatedly been called “settled law” as well as the leak of the draft document itself come as a massive shock.

But to advocates of reproductive justice and abortion access in Midwest and Southern states — the areas most vulnerable if Roe is struck down — the potential forthcoming ruling is not only about the right to terminate a pregnancy, but also evidence of the fact that where abortion access is most limited is also where voting rights have been systematically stripped away.

“Conservative laws on abortion will be more readily passed, and not because people in that state actually want it, but because of essentially rigged voting rules.”

“There’s a direct connection between the gerrymandering politics we see … the effect of that is going to be that conservative laws on abortion will be more readily passed, and not because people in that state actually want it, but because of essentially rigged voting rules that have produced an outcome of a conservative state legislature,” says Aziza Ahmed, a professor of law at the University of California at Irvine. “If Roe is overturned in the actual opinion, these two movements are now linked fundamentally.”

Cherisse Scott, a reproductive justice advocate and the founder and chief executive officer of SisterReach, a reproductive justice organization based in Memphis, Tennessee, says that the places in the U.S. where access to abortion care is most at risk are those where the Republican Party have either the majority or even a supermajority in the state legislature. This is typically the result of gerrymandering, or drawing congressional maps to favor one political party over another, which has given Republicans in many swing states the ability to push through legislation that’s transphobic, homophobic, racist, and/or sexist at the behest of a small share of voters.

“What is happening here in Memphis as well happening across the state of Tennessee, is basically moving those candidates who have been strong supporters of people’s human rights out of leadership,” Scott explains. “The folks that we serve, very specifically those who are living on the margins where they reside — this is where we're seeing voter suppression.” Not to mention that three of the conservative justices who ruled against Roe were nominated by former President Donald Trump, who gained office despite losing the popular vote.

In Tennessee, out of 99 state congressional districts, only seven are considered competitive, according to the Princeton Gerrymandering Project, which aims to eliminate partisan gerrymandering in order to create fair maps and representative legislatures. Scott says that for many years, the lopsided state legislature has passed legislation that creates and furthers economic, social, and educational disparities, particularly affecting Black families. For instance, in 2020, the Tennessee legislature halted a bill that would have expanded Medicaid, a decision that ultimately withheld care for nearly 226,000 people, referred to as the “coverage gap.” Sixty percent of those not insured are people of color, and 28% are Black.

“This is about our civil rights,” Scott says. “This is about our human rights. This is about our religious freedom.”

“How we can really be thinking about the ways that conservatives ... have basically used a moral agenda to erode folks’ civil and human rights?”

Abortion, a safe and routine procedure that 1 out of every 4 birthing people will undergo, has long been seen as an issue of politics rather than health care. Despite what some politicians may say about the safety of the procedure, there’s no evidence that abortions are unsafe. Scott points to this, noting that that politicization of abortion created a political climate where legislators felt entitled to withhold abortion care from being included in health care programs that support low-wealth and low-earning people.

With the onset of six-week, 15-week, and other forms of abortion bans that attempt to prevent birthing people from accessing abortions, Scotts asks how we can expand the understanding of these attacks to see them as part of a larger network of demagogical efforts to govern humans’ personal conduct, like GOP-led crusades against mask mandates that would've mitigated the COVID-19 pandemic, the impacts of which have disproportionately affected Black and brown people.

“How we can really be thinking about the ways that conservatives, Christian extremist, white Evangelical, right-wing folks have basically used a moral agenda to erode folks’ civil and human rights beyond abortion?” Scott says.

The majority of Americans support Roe. That including voters in heavily gerrymandered Texas, says Aimee Arrambide, the executive director of Avow, an organization that works to protect and secure abortion access in the state. In September 2021, the Texas legislature approved a bill that both banned abortion and criminalized patients seeking abortion care as well as anyone who may have helped them access it. The law was allowed to stand by the Supreme Court in December.

“Overwhelmingly, the majority of Texans have supported abortion here, but that’s not necessarily reflected in our government. And the reason that’s not reflected in our government is because so many people have been disenfranchised,” Arrambide tells Mic.

The crusade against voting and reproductive care access resurfaced in Texas after the 2010 midterm elections, when the legislature heavily gerrymandered districts in favor of Republicans. According to FiveThirtyEight, just two of Texas’s 36 House seats are from competitive districts. If district maps were drawn to promote partisan competition and fairness, then there would be 22 competitive districts. Texas received an F rating from the Princeton Gerrymandering Project for “partisan fairness” of its congressional map.

Arrambide says that marginalized communities have continued to face mounting challenges to accessing the vote, including through explicit obstacles, like voter ID laws or restrictions on mail-in voting, which have already caused challenges to voter misinformation. (Not coincidentally, voting rights protections were also gutted by the Supreme Court, in its 2013 Shelby County v. Holder decision.)

At the same time that Texas passed its draconian abortion restrictions, the legislature passed a package of voting rights restrictions. “They tend to introduce bills that are so extreme in order to obfuscate what they’re actually trying to do,” Arrambide says. “So when they passed [the abortion law] last legislative session, they were introducing a bill that would give the death penalty to people seeking abortion care.”

Arrambide says that extremely punitive policies in Texas pose multiple harms, which intersect at the polls, she says. “People don’t just live one-issue lives — people don’t just need an abortion and not [the ability] to vote.”