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Demonstrators protest outside of the U.S. Supreme Court on May 4, 2022, in Washington. A draft opinion suggests the U.S. Supreme Court could be poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide, according to a Politico report released Monday.Alex Brandon/The Associated Press

Kelly Gordon is assistant professor in the Department of Political Science at McGill University. She is co-author of the book, The Changing Voice of the Anti-Abortion Movement: The Rise of Pro-Woman Rhetoric in Canada and the United States.

On Monday evening, a leaked U.S. Supreme Court document revealed the court is poised to overturn the controversial Roe v. Wade decision. The draft opinion, penned by Justice Samuel Alito, is an unwavering rejection of the 1973 decision’s protection of a constitutional right to abortion, asserting Roe was egregiously wrong from the start” and must be overturned.

For anyone who has been following the American abortion debate, the only surprising part of the draft opinion is that it was leaked in the first place – violating the typically fervent norms of secrecy surrounding Supreme Court deliberations. Less surprising is the overturning of the decision itself, something many argued was imminent the moment Donald Trump won the presidency – and with it the power to appoint three new Supreme Court Justices.

However, this potential anti-abortion victory did not emerge out of thin air. Rather, it’s the culmination of a 50-year crusade against legal abortion in the U.S. Even while Roe v. Wade remains the law of the land – providing a constitutional protection of the right to abortion – the American anti-abortion movement has been effective in chipping away at concrete access to abortion care.

In this way, the reversal of Roe v. Wade changes everything – and nothing at all.

On the one hand, the reversal would accelerate the curbing of abortion access throughout the country by allowing states to determine the legality of abortion. Thirteen American states have trigger laws in place, many of which explicitly state that abortions will be banned should Roe be reversed. In states such as Kentucky, Louisiana, Oklahoma and South Dakota, these new abortion bans would come into effect immediately after Roe’s reversal.

But it is not only in states with trigger laws that abortion access will be under threat. It is estimated that more than half of states are certain or very likely to ban abortion without the protection of Roe. The impact of new bans will be profound – forcing thousands of people to self-manage their own abortions and/or to travel long distances out-of-state to access care. For many more, abortion will become completely inaccessible. In a country with high rates of maternal mortality, no paid maternity leave and little to no subsidized or affordable child care, the prohibition of abortion in more than half of states will devastate American families.

On the other hand, the public’s intense and often singular focus on the importance of Roe in protecting a right to abortion distracts us from the immense political and legal influence the anti-abortion movement has already had on American abortion politics and law. Overturning Roe v. Wade is just the latest act of this long-running American tragedy.

Since the 1970s, the anti-abortion movement has been a formidable force in nearly all facets of American political life, pouring significant resources into the political and legal realms. Anti-abortion organizations have shaped the ideological and policy direction of the Republican Party. It has long been the case that one cannot become the Republican candidate for president without being explicitly anti-abortion (just ask Mitt Romney or Donald Trump). And, since at least the 1980s, this has led to success in electing anti-abortion politicians and translating that influence into the passing of anti-abortion legislation.

This has meant that, even in the absence of a formal reversal of Roe, the anti-abortion movement has been able to pass laws that severely restrict access to abortion. Defunding bills, such as the 1977 Hyde Amendment (which prohibits the use of federal money to fund abortion care) and other state-level defunding bills have, in practice, made it much harder to access abortion by ensuring that women have to pay for it themselves (something that does not make it impossible for women to get abortions, but certainly privileges women with financial means).

Since the early 1990s, Targeted Regulation of Abortion Providers (or TRAP) legislation has also limited abortion access throughout the country. TRAP laws are designed to reduce the number of clinics and doctors who perform abortions by raising the costs and requirements to an unsustainable level. Since states hold the authority to regulate health care professionals and enforce certain health and safety standards, anti-abortion lawmakers began to use this power to pass additional requirements that would shut down abortion clinics. Because TRAP laws are deliberately written to circumvent Roe, they have provided lawmakers with a backdoor to restrict abortion access. As of 2020, largely because of the success of TRAP-type legislation, five American states have only one abortion clinic to service their entire population.

The result of this sustained and highly effective campaign against abortion access has been that, even with Roe in place, abortion remains largely inaccessible for large swaths of Americans. In 2021 alone, more than 100 bills restricting or banning abortion were passed into law in 19 states.

Unsurprisingly, the effects of this have not been experienced equally by all women. For example, while the Hyde Amendment makes it difficult for many women to afford abortion care, it has been shown to adversely affect poor women and women of colour the most. Indeed, while the formal right to abortion remains (even if temporarily), tangible access for thousands of women and women of colour has already been eroded.

It seems very likely that the battle over Roe v. Wade will soon be over – with the anti-abortion movement emerging victorious. The consequences of this will be profound. The landscape of American abortion politics will be remade, and a new era of post-Roe abortion politics will begin. Just as the passing of Roe shaped and moulded the trajectory of abortion politics for the past 50 years, so too will its demise.

As distressing and harmful as the overturning of Roe will be, it’s important to keep in mind that Roe never magically secured access to abortion for many Americans, especially marginalized women. As reproductive justice advocate Monica Simpson reminds us, “Roe never fully protected Black women – or poor women or so many others in this country. That’s because Roe ensured the right to abortion without ensuring that people could actually get an abortion.”

Much will be made of the lessons to glean from the death of Roe v. Wade, but perhaps one of the most important is that an abstract constitutional right to abortion does little to promote reproductive freedom. This landmark decision has retained great symbolic power in the American imagination, but it has not been successful in resisting the tide of anti-abortion sentiment that has defined U.S. political culture and limited tangible abortion access. The future of abortion rights in the U.S. and all over the world needs to grapple with the reality that abortion exists in a larger social and political context. The future of abortion advocacy must highlight the importance of creating the conditions in which “rights” can be realized in concrete ways for those seeking an abortion.

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