Roe v. Wade meant the world to a lot of people. It meant the ability to finish school, leave an abusive relationship, care for the children they already had—it became a sort of shorthand for women’s equality in the U.S. People are understandably heartbroken that it’s gone and states are now allowed to force people to give birth. But the hard truth is that Roe was never as good as some thought it was. The 1973 ruling left a lot of people behind.
Under Roe, bans on insurance coverage and telemedicine flourished. States gleefully put patients through multi-day waiting periods, misleading counseling, and invasive ultrasounds before their appointments. Clinics closed their doors. Abortion was rendered a right in name only. Yet, there’s been a lot of talk about codifying Roe. President Joe Biden even stood in front of “Restore Roe” signs last October and pledged to sign a bill enshrining Roe’s protections into federal law if Democrats kept the House and Senate in the midterms. We all know how that went. Now, we’re left with a carrot dangled for the 2024 election, like so many elections before it. And what a limp, shriveled carrot it is.
“Having a federal protection for abortion in this country was absolutely important for our communities,” Monica Raye Simpson, executive director of Atlanta-based reproductive justice organization SisterSong, told Jezebel. But, “We have to think bigger—we have to. Lives are at stake, so we have to think bigger than what never held us all.”
It’s time to ask ourselves: Why would we fight to restore something that didn’t guarantee true reproductive freedom for everyone? We can do better, and it starts by realizing that we can demand better. We should be treating abortion not as some kind of a political football, but as a fundamental human right.
How Roe v. Wade Failed Us
In 1973, we got what the court wrote, not the legislation activists wanted. And while Roe guaranteed the right for doctors to provide abortions up to a certain point in pregnancy—a later decision put that limit at when a fetus becomes “viable” outside the uterus, around 24 weeks—it did not guarantee the right for abortion seekers to access the procedure. Three years later, it got its first gutting when Congress passed the Hyde Amendment, which banned federal funding for abortions, effectively blocking access for low-income people with Medicaid insurance. Still, the Democratic party supported the Hyde Amendment in its presidential platform all the way until 2016, and Biden had to be dragged kicking and screaming to say he opposed it ahead of his 2020 nomination.
Roe’s weaknesses were obvious long before 2016. This is underscored by the mere fact that abortion funds exist. Laurie Bertram Roberts, executive director of the Mississippi Reproductive Freedom Fund, has been helping people pay for their abortions and any travel they might need to get them for almost 10 years. Roe never meant much to people in places like Mississippi, a state that had just one abortion clinic since 2004—almost 20 years before Roe fell—and only offered abortions through 16 weeks of pregnancy. “There’s so much other work I would love to be doing rather than providing diapers to people and funding for abortion,” Bertram Roberts told Jezebel. “We could be doing other things as a whole, as a community, than scrounging up vital resources for people, which should not be our job. Basic needs for people should be provided by our government.”
With patients across the country scrambling to afford care, many clinics tried to keep prices low, forcing them to run on tight budgets and underpay their staff. When insurance doesn’t cover abortion, “all of that trickles down,” said Ghazaleh Moayedi, an OB/GYN who used to provide abortions in Texas and Oklahoma, two states that banned nearly all abortion while Roe was still on the books. She is also the founder of Pegasus Health Justice Center and on the board of directors with Physicians for Reproductive Health and Texas Equal Access Fund. “People need to be able to freely access health care and health care providers from all levels—physicians but also the clinic staff, people answering the phones, people cleaning the clinic. Everyone deserves to be compensated fairly, too,” she told Jezebel.
While abortion funds and clinics were sandbagging the holes in Roe, states took sledgehammers to the dam.
“One of the many great failures of Roe is that it allowed abortion care to be singled out from other medical care,” Moayedi said. This meant states could intervene in a way that doesn’t happen with other medical procedures. One way they did so was by banning delivery methods of abortion, including telemedicine appointments for abortion pills. While Moayedi is a licensed physician in 20 states, she could never provide telemedicine abortion in Texas or Oklahoma. “There aren’t laws that tell you how to do a heart transplant, there aren’t laws that tell you how you can do a C-section,” she said. “Roe allowed for an environment where politicians without any medical expertise, or some with malaligned medical expertise, were able to tell doctors how to actually practice medicine.”
Roe was easily undermined by states that wanted to ban abortion earlier than viability, and it made it nearly impossible for people to access necessary later abortions, which has harmed countless. One of them is Erika Christensen, who had to leave New York and pay tens of thousands of dollars to have an abortion at 32 weeks in Colorado in 2016. Christensen, now an activist who opposes abortion bans at any stage of pregnancy, told Jezebel last May that the fetal viability line is incompatible with abortion justice.
“If you have certain values about abortion—that abortion is health care, that pregnant people are people, and that we should have bans off our bodies—if all of those slogans include an imaginary viability line in your head, they are not values, they are slogans,” Christensen said. “I would even go so far as to suggest that you might be pro-life with exceptions. Either you support pregnant people and you think abortion is health care or you don’t.”
Because Roe gave states such immense power to regulate and legislate the procedure, many advocates call it the original abortion compromise—and that’s why they urge the movement to fight for people’s full autonomy this time around. Even the most well-known group in the movement is saying it’s time to leave the nostalgia behind. The president of Planned Parenthood, Alexis McGill Johnson, wrote in a Friday op-ed that she was “letting go of Roe” because she was “betting on better” for future generations. She continued: “Without the framework of Roe, we can advocate for the ceiling as we write ourselves back into the Constitution.”
The bill Biden hyped up at the October event is the Women’s Health Protection Act, or WHPA. Yes, it would nominally guarantee people the right to obtain an abortion, but it does so using the Roe framework. That means that WHPA not only retains the harmful fetal viability threshold, it also doesn’t require insurance companies to cover abortion, nor does it explicitly protect people who self-manage their abortions with pills from arrest and criminalization.
Passing WHPA—Biden championed it as recently as Friday—would not solve the health care crisis that’s been brewing for decades. In just the first 100 days after the Dobbs decision, 66 clinics stopped providing abortions and 26 shut down completely, according to the Guttmacher Institute. Mississippi’s sole clinic shuttered in July. So when it comes to talk of passing WHPA, Bertram Roberts said: “Okay, that’s nice. But then what’s their next steps? We’re beyond that now, because now all the clinics are gone. Who’s going to help us rebuild those networks of health care?”
Moayedi doesn’t want to return to the status quo, either. “I don’t want to say that codifying Roe is a bad idea, I just don’t think it’s a good enough idea,” she said, adding, “I’m not willing to settle for a medium solution anymore either, because that’s actually what Roe was. I’m not interested in middle of the road compromises—at all. Maybe that’s what we end up with, but that’s not what I’m starting with.”
Christensen was more unsparing: “To me, codifying Roe is like rebuilding the This Is Us house and including the crock pot. Why would we fucking do that?”
A Philosophy for Moving Past Roe
Moayedi does recognize that with the next president set to take office in less than two years, we’re in a treacherous moment: “A national abortion ban is so close—it’s much closer than codifying Roe and we need to be real about that. Another Trump or Trump-style presidency is potentially around the corner.”
Even if Biden is re-elected and Democrats take back the House and win more Senate seats, any law codifying Roe could get struck down by the current Supreme Court. But this is not a practical roadmap for overturning abortion bans—it’s a philosophy for moving forward without leaving anyone behind.
When Roe was decided in 1973, it didn’t really center people who have abortions, said Renee Bracey Sherman, founder and executive director of We Testify, an advocacy group dedicated to abortion storytelling and culture change. “What we are looking for at We Testify is a visionary bill that ensures that every single person who wants an abortion is able to get one without fearing any sort of criminalization or repercussions,” she said. “That includes young people, that includes people who self-manage, that includes incarcerated people, and that includes people who are enrolled in Medicaid.”
For inspiration, she looks to NARAL’s name at its founding in 1969: the National Association for the Repeal of Abortion Laws. “That is what our movement originally asked for, because then it is actually up to the person who needs the abortion and the skill of their provider—the midwife, nurse, whoever’s in the community willing to provide.”
As lawmakers have limited people’s participation in democracy and legislated our rights out of existence, Simpson believes it’s beyond time to start operating under the Black women-created reproductive justice framework of full bodily autonomy, including the right to have children and live freely from state health threats. Roe focused only on abortion, and when groups viewed it as a single issue not connected to other fights, they lost.
Simpson points to 2011, when both a personhood amendment and voter ID law were on the ballot in Mississippi. SisterSong and others asked Planned Parenthood to fight both measures, but it chose to focus only on the one directly related to abortion. The personhood measure failed, but voter ID passed. Seven years later, state lawmakers passed the 15-week abortion ban that the Supreme Court used to overturn Roe. Dozens of states now have abortion bans, and many are also trying to control how parents raise their transgender children. “We’re not trying to wave the finger and say, ‘I told you so,’” Simpson said. “We’re just trying to say: Do you have enough information for you to finally understand that it is time to turn to this movement, to this framework, to actually create what we always knew that we needed from the very beginning?”
There are plenty of concrete changes to push for as we fight to “repeal all abortion laws.” Bracey Sherman thinks it’s important to overturn the Hyde Amendment, an effort being led by All* Above All so more people can afford their abortions, and to get abortion pills approved for over-the-counter use. “Why can’t you just pick them up yourself on the shelf?” she said. “You’re going to take the whole thing at home anyway.” Doctors like Moayedi agree that pills should be on pharmacy shelves: “You don’t need me.” Another meaningful shorter-term step would be for the Biden administration to wholeheartedly support abortion pills by protecting telemedicine abortion prescribed across state lines and approving pills for use through 12 weeks, not the current 10, Bertram Roberts said.
Bertram Roberts said it’s also important to focus on state-level efforts to restore and expand access to abortion. “At the end of the day, [state laws are] how we got here, and that’s how we’re gonna get out.” The solution includes progressive states passing universal health care laws that cover abortion. These efforts may even begin in cities first, like New York’s recent move to provide free abortion pills at some sexual health clinics. On a federal level, Bertram Roberts and Bracey Sherman want to decriminalize pregnancy outcomes. “Self-managed abortion, miscarriage, stillbirth, drug use, all of it. Stop locking up pregnant people,” Bertram Roberts said.
More broadly, Moayedi said, “Abortion is a human right. It is fundamental.” To that end, she’d like to see a constitutional amendment stating that we all have a human right to control our reproduction.
No More Concessions
When Roe gave power to doctors, it established the rule of thumb that abortion should be a decision “between a woman and her doctor.” Gender essentialism aside, this is medical paternalism. “It’s implied that if you’re going to have an abortion, you should have to confess why you need it to at least one person,” Bertram Roberts said. “There should be that one gatekeeper, the doctor. Gynecologists have long been overwhelmingly white men. It’s like young women [before Roe] having to go ask their dad, ‘Can I have an abortion?’ It’s medical daddy, and that’s bullshit.”
As Moayedi said: “I don’t actually participate in that decision. I offer information, but the decision to have an abortion is on the pregnant person themselves.”
Other Roe-era phrases did their part to shore up the compromise—and cede ground. “Safe, legal, and rare.” “No one likes abortion.” Even, “I would never have an abortion but I support your right to.” The point is, language matters, and calling to “restore Roe” is asking to send us right back to a time when a person’s ability to get an abortion was dependent on their zip code and bank account. We’ve learned exactly what happens when we operate out of fear and compromise our values, Moayedi said. It’s beyond time for people who believe in reproductive freedom to be bold in our approach and not walk to the table with concessions. “Let’s dream the world that we want, let’s dream the country that we want,” she said. “Let’s plan from the most just and liberating perspective. Let’s ask for what we deserve.”
We won’t get what we deserve without being clear about exactly what that is.