“Restore Roe” Is Not the Answer to the Abortion Access Crisis

“Restore Roe” Is Not the Answer to the Abortion Access Crisis

“Restore Roe” Is Not the Answer to the Abortion Access Crisis

We deserve better than the return of a law that never worked for everyone.


As abortion rights supporters commemorated the 50th anniversary of Roe v. Wade this month, we were inundated with calls to action from elected leaders saying that we need to “restore Roe,” “codify Roe,” and pass the Women’s Health Protection Act (WHPA).

As someone who has worked in the reproductive rights and justice movements, I couldn’t disagree more. Both Roe and WHPA are woefully insufficient solutions to the abortion access crisis that has been unfolding in slow motion for decades. We need bold solutions to achieve reproductive freedom—and we shouldn’t settle for incremental progress when clearly that approach did not work and left the most marginalized to fend for themselves.

Three years after the Roe ruling, Congress passed the Hyde Amendment, a rider to the annual appropriations bill that bans abortion coverage for those with public insurance. Then-Representative Henry Hyde (R-Ill.) introduced the amendment with the explicit intent to prevent poor women from seeking abortion care. Today, the amendment is used to prevent anyone who receives health insurance through Medicaid, Medicare, Indian Health Service, or anyone in the Peace Corps, the military, or who works for the federal government, from using their insurance to pay for abortion care, except under limited circumstances.

The Hyde Amendment isn’t a law. It gets renewed every year, which means it can be removed at any time. Over the past decade, the calls for ending the Hyde Amendment have only become louder. Thanks to advocacy efforts led by All* Above All, which created the #BeBoldEndHyde campaign, abortion justice lawmakers have introduced the Equal Access to Abortion Coverage in Health Insurance (EACH) Act in every session of Congress since 2015. But it has yet to pass Congress. President Joe Biden went so far as to not include the Hyde Amendment in two of his budgets, but then caved each time.

There are some workarounds. Because Medicaid is a federal and state partnership, 16 states provide public funding of abortion care through their state Medicaid dollars. Illinois has taken the lead by increasing its Medicaid reimbursement rate by 20 percent, as providers see an increase in out-of-state patients since the Dobbs ruling. States can go a step further by enshrining the right to abortion in their Constitutions, removing gestational bans, and strengthening laws to protect individuals who self-manage their abortions from criminalization.

The harms inflicted by abortion bans are enormous and disproportionately felt by low-income people of color. Centuries of racist economic and health care policies in the United States have led Black and Latine people to access their health insurance through Medicaid in significantly higher numbers than white or Asian people. Abortion restrictions are one reason some people have to access abortion care later in pregnancy or self-manage their abortion, which can often lead to criminalization. While only Nevada, South Carolina, and Oklahoma explicitly criminalize self-managed abortion, police and prosecutors in 26 states have distorted feticide laws passed after Roe became law—which were originally intended to protect pregnant people from domestic violence—to criminalize pregnant people for “endangering” their fetus.

In one of the most egregious examples of pregnancy criminalization and exploitation of pregnant people, the district attorney of Etowah County, Ala., had a policy of holding pregnant and postpartum people accused of drug use in jail for weeks or months. The women had to pay a $10,000 cash bond and be released to an inpatient drug facility—although many of them were never assessed for a substance abuse disorder. When there was no availability at the rehab center, the women were forced to stay in jail while pregnant (and at least one woman wasn’t even pregnant).

The Etowah County cases provide a damning preview of what’s ahead in a post-Roe world if we continue on our current trajectory of denying bodily autonomy to over half the population. Surveillance and prosecution of pregnant people already occurred under Roe, but since the Supreme Court’s conservative justices struck down that 1973 ruling, these extreme cases are becoming more mainstream. Restoring Roe won’t prevent or stop the threat of criminalization and prosecution pregnant people face, particularly Black and brown folks. Codifying Roe won’t give pregnant people control of their bodies and lives, when anti-abortion state officials have made it clear that they will stop at nothing when it comes to abortion, with or without Roe intact.

We all deserve better than the return of a law that never worked for everyone. Abortion is a fundamental human right and access to it should not be dependent on “a right to privacy” but instead rooted in this nation’s promise of equality and justice for all, which includes the right to self-determination and bodily autonomy. We must not stop fighting until we get that.

Last fall, All* Above All released an Action Plan for Abortion Justice, a forward-thinking policy framework that calls for making abortion care affordable, accessible, and free of restrictions, regardless of a person’s age, gender identity, socioeconomic status, or disability status. (I worked on parts of the plan during my year at the organization.) People should not be forced to travel hundreds of miles to access abortion care. Those who manage to travel out of state are forced to pay hundreds, if not thousands, of dollars to do so. Grassroots organizations like local abortion funds and practical support funds, even with the immense increase in donations, still aren’t able to fund every person who reaches out for help. This is a public health catastrophe that requires fierce action and a complete overhaul in the way we think and talk about abortion access and care in this country.

Yet the same top Democrats who have talked a good game about restoring Roe continue to use our right to control our own bodies as a bargaining chip for other legislative endeavors that do not benefit the most marginalized in our communities. Earlier this month, the Democratic leader of the House—Representative Hakeem Jeffries (D-N.Y.), who spoke about the need for reproductive freedom in his first speech as party leader—joined a press conference where he publicly supported the appointment of an anti-abortion, anti-labor judge to be chief justice on New York state’s highest court. Lest you think this was the first time a top Democrat stumped for an anti-abortion lawmaker, not long after the Dobbs decision leaked in May, Democratic leaders like Representative James Clyburn (D-S.C.) and then-House Speaker Nancy Pelosi (D-Calif.) were campaigning on behalf of Henry Cuellar (D-Tex.), an anti-abortion Democrat in the House of Representatives.

Human rights are not negotiable. If our elected leaders aren’t willing to unapologetically fight for our rights, we must elect new leaders.

Until then, it’s up to those of us with the resources—monetary and nonmonetary—to meet this moment and support our communities, because the right is not going to stop at abortion. Abortion bans, anti-trans legislation, and voting restrictions are not only inextricably linked together; they’re backed by the same Christian Nationalist organizations.

We won’t be able to correct the decades of damage overnight, but we can create instead something much better that centers freedom and autonomy for all of us.

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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