Roe Was Never Enough to Ensure Reproductive Freedom

In his state of the Union address, President Joe Biden zeroed in on the chaos that has ensued in the wake of the U.S. Supreme Court’s decision to cast reproductive rights out of the Constitution.

He talked about Latorya Beasley, an Alabama woman in the audience whose plans to have a second child using in vitro fertilization were scuttled after the state’s Supreme Court announced that embryos created via IVF were “extrauterine children.” The ruling prompted IVF providers in the state to halt services.

Biden also talked about Kate Cox, a Dallas mother in attendance who asked a Texas court for permission to terminate a nonviable pregnancy. A district judge agreed that her situation met the medical exception to the state’s merciless abortion ban. But the attorney general and state Supreme Court balked, forcing Cox to flee Texas to receive care meant to protect her life and future fertility.

“Like most Americans, I believe Roe v. Wade got it right,” Biden said. He noted that the Supreme Court’s majority opinion overturning Roe referred glibly to women having electoral power — and thus the political ability to overcome the ruling. Indeed, Biden said, state ballot measures enshrining reproductive rights won handily in 2022 and 2023. “Those bragging about overturning Roe v. Wade have no clue about the power of women,” Biden said to thunderous applause.

“If you, the American people, send me a Congress that supports the right to choose,” he said, “I promise you, I will restore Roe v. Wade as the law of the land again.”

While that might sound good, Roe was never enough to ensure reproductive autonomy in the first place. The ink was barely dry on the 1973 decision before its supposed protections came under attack. In 1976, Congress passed a measure that stripped government funding for abortion for low-income people. In the decades that followed, elected officials and the courts took a hammer to Roe — even as the Supreme Court repeatedly upheld its core ruling —passing and then blessing hundreds of restrictions, some targeting abortion facilities and doctors with excessive regulation, others erecting barriers between pregnant people and care, many of them based entirely on junk science.

Roe was always a paper-based right that depended on status and ZIP code.

Roe was never enough to guarantee that everyone in need of reproductive care could meaningfully access it. It was always a paper-based right that depended on status and ZIP code, leaving low-income people and other vulnerable groups out of the fold.

And that’s because Roe had a deep and unmalleable flaw: It was never about whether the government had a right to your body, only when it had a right to your body. Roe ensured that at some point, a pregnant person would lose the right to autonomy, which in turn guaranteed, if not wholly encouraged, the surveillance and criminalization of pregnant people.

Also present in the chamber for Biden’s state of the Union speech was a woman from Ohio named Brittany Watts. Her story is emblematic of Roe’s failures.

Watts had been to the hospital several times before she miscarried at her home southeast of Cleveland. She was nearly 22 weeks pregnant — the cutoff for abortion under Ohio law — and her water broke early. The fetus was not viable, and even though she was under the state’s gestational cutoff, the Catholic hospital she went to for help failed to intervene.

In September 2023, Watts miscarried the pregnancy in her bathroom. Back at the hospital later that day, Watts was soothed by a nurse who had already called the cops on her. Prosecutors charged Watts with “abuse of a corpse.” In justifying the charge, they vilified Watts, saying she put her “baby into the toilet” and then “went on” with her day. The truth was that she’d sought treatment, miscarried in the toilet, and then, scared, went to a scheduled appointment before diverting to the hospital.

The arrest caused a national uproar. Watts’s attorney argued that her client was being “demonized” for miscarrying, “something that goes on every day.” Nonetheless, a municipal court judge allowed the case to go to a grand jury: “There are better scholars that I am to determine the exact legal status of this fetus, corpse, body, birthing tissue, whatever it is.”

Ultimately, the grand jury declined to indict Watts, and she was cleared. But the bottom line is this: Roe did not save her. While the ruling had been overturned by the time Watts came under the scrutiny of the criminal legal system and its proxies in health care, Ohio’s remaining legal protections were based on Roe’s structure, including the gestational limit of 22 weeks.

The judge sent the matter to a grand jury precisely because the miscarried fetus might have had some legal rights, leaving Watts’s personal medical circumstances open to judgment by the government.

In contemplating a role for the government in a person’s reproductive life, Roe and its progeny deemed that outside intervention was acceptable later in pregnancy, when the fetus could be viable outside the womb. Generally speaking, this is accepted to occur around 24 weeks. But it is also a fluid concept. Anti-abortion activists had long advocated for pushing up the viability line, arguing that medical advancements meant a fetus could be supported outside the womb even sooner — thus encouraging greater governmental oversight of pregnancy.

While the notion that there is some government interest in protecting a fetus later in pregnancy might seem reasonable, pregnancy is a highly individualized experience and complications or circumstances that arise cannot be generalized or fairly conscripted to government control. The entire term of a pregnancy depends on the person carrying it, and the right to intervene in that pregnancy should lie with the individual.

In the years before Roe fell, near-total bans on abortion had become commonplace, passing in a number of states under the notion that legal personhood should begin before the person exists. It was the framework of Roe that allowed these power grabs, regardless of whether they were blocked by various courts before the Supreme Court said otherwise. Since the fall of Roe, several states have sought to codify its protections, as Biden said he would do given the chance. But that just reimagines the same inadequate framework. In November, Ohio became the seventh state to enshrine reproductive rights post-Roe when voters overwhelmingly approved an amendment to the state constitution that guarantees access to abortion free from government intervention — before viability.

Opting to hew to the line Roe cast is seen as politically safe. But recent research suggests the electorate isn’t so sure.

In June 2023, research firm PerryUndem conducted an experiment involving more than 4,000 registered voters and two reproductive rights amendments. The first amendment was the exact language passed by Michigan voters in 2022, which allows the government to regulate abortion after fetal viability. The second amendment mirrored the first but stripped out any role for the government.

Which amendment did voters prefer? By a large margin — 15 points — participants preferred the clean amendment, free of government control. “Which is it?” one voter said when asked about concerns with the first amendment. “Do we have individual freedoms or is the state controlling us?”

Bonyen Lee-Gilmore, vice president of communications for the National Institute for Reproductive Health, put it bluntly: The voters are out ahead of the government, she said, and even ahead of many reproductive rights organizations. People see that government involvement is a trap. And yet there is disagreement among reproductive rights organizations when it comes to the path forward, with many hedging, believing a Roe-like framework might pull us more quickly out of the current, hideous abyss. But that only takes us backward to days that were never all that great.

As we move forward, we need to think about what we really want — and what we can do to guarantee fully autonomous reproductive lives for all. Among those pushing for a holistic and inclusive approach is the NIRH’s Learning and Accountability Project.

“The public has never been more with us, more willing to reject government interference in our reproductive lives and futures,” the organization and its partners wrote on Medium. In each election since Roe was overturned, “we’ve won. But voters can only vote for what we put in front of them. It’s time to offer something more.”