Anti-abortion forces scored major victories in 2021, pushing Roe vs. Wade to brink of extinction

The year 2021 was perhaps the most significant one for U.S. abortion rights in almost five decades and one in which anti-abortion forces scored important legal victories that could yield the most significant changes to the national landscape in recent memory.

The prime target of the efforts is the 1973 landmark Supreme Court decision Roe vs. Wade, as well as the momentous 1992 case Casey vs. Planned Parenthood, each of which are landmark rulings that affirmed constitutional rights to abortion.

In probably the most important development of the year, the high court heard arguments in Dobbs vs. Jackson Women’s Health Organization, in which the state of Mississippi is specifically asking the conservative-dominated court to overturn Roe vs. Wade and 50 years of precedents that followed.

Also this year, the state of Texas instituted perhaps the most restrictive state law in the country — Senate Bill 8, which relies on private citizens to sue anyone who provides or helps provide an abortion once a fetal heartbeat is detectable, or typically around the six-week mark.

The Supreme Court twice refused to block the Texas ban in the face of legal challenges.

Meanwhile, legislators in Republican-controlled states introduced hundreds of new proposals to restrict access to abortion.

According to the the abortion advocacy group Guttmacher Institute, 561 abortion restrictions, including 165 bans, were introduced by legislators across 47 states in the first five months this year. Eighty-three of those restrictions were enacted.

A Washington Post-ABC News poll in November found that most Americans support upholding Roe vs. Wade and opposed the Texas law by similar 2-to-1 margins.

Here is a look at key developments in the fight over abortion rights that occurred over the course of 2021:

Theresa Brennan (L) poses with Jeanne Mancini, president of the March for Life Education, as anti-abortion activists gather at the U.S. Supreme Court in Washington, D.C., on January 29. File Photo by Ken Cedeno/UPI

January

Supporters of reproductive rights were cheered by the victories of Democrats Ralph Warnock and Jon Ossoff in their run-off elections for Georgia’s two U.S. Senate seats, which gave the party control of the upper chamber.

Biden, in one of his first actions as president, took executive action to rescind the Trump administration’s global reproductive health gag rule called the “Mexico City Policy” — which had barred U.S. funding from going to non-profits that provide abortion or reproductive rights counseling.

February

One of country’s most restrictive state anti-abortion measures was signed into law by South Carolina Gov. Henry McMaster.

The South Carolina Fetal Heartbeat Protection from Abortion Act prohibits a doctor — under threat of a two-year prison sentence — from performing an abortion after the heartbeat of a fetus has been detected, which generally occurs between six and eight weeks after conception and before most women know they are pregnant.

The South Carolina law is facing a legal challenge in Planned Parenthood South Atlantic vs. Wilson. Oral arguments before the 4th U.S. Circuit Court of Appeals in Richmond, Va., are scheduled for Jan. 26.

March

The Republican-controlled Arizona state senate passed Senate Bill 1457, which criminalizes abortions sought “solely because of a genetic abnormality of the child.”

Gov. Doug Ducey law signed the measure into law on April 27.

It was set to take effect in September, but its implementation was temporarily blocked by U.S. District Judge Douglas Rayes, an appointee of President Barack Obama, pending the resolution of the legal challenges.

April

Biden’s administration proposed to permanently suspend enforcement of a restriction that forced patients to travel to a hospital, clinic, or medical office to access abortion pills.

The decision became final in December.

The move allows mifepristone, an FDA-approved drug used in conjunction with a second pill called misoprostol, to be prescribed through telehealth consultations and mailed directly to patients, eliminating a requirement stipulating that the pills be picked up at a hospital, clinic or medical office.

Also, the Iowa state senate passed an initial step needed to put a constitutional amendment outlawing abortion before voters.

The GOP-controlled House of Representatives later approved a similar measure. Under its terms, lawmakers would have to agree on the language for the amendment before it could be placed on the ballot in 2024.

May

The Supreme Court on May 17 set up a historic showdown which could overturn Roe vs. Wade when it agreed to hear Dobbs vs. Jackson Women’s Health Organization, a case that directly challenges the landmark 1973 case guaranteeing a woman’s right to abortion across all 50 states.

The case involves Mississippi’s 15-week abortion ban and challenges Roe’s core holding on women’s constitutional rights — the high court cannot allow the ban to stay in place without overturning decades of court precedent in Roe and other cases that followed.

Mississippi’s law only makes exceptions for medical emergencies or “severe fetal abnormality,” which critics say violates established constitutional standards.

On May 20, Texas Gov. Greg Abbott signed the Texas ban, which allows members of the public to file civil suits against anyone thought to be “aiding and abetting” a pregnant woman seeking an abortion. If the lawsuit is successful, plaintiffs get at least $10,000 — which critics say amounts to a bounty.

The measure is crafted so that Texas officials and law enforcement do not actually enforce the statute, offloading the legal responsibility instead onto private citizens — or “vigilantes” as opponents call them — which so far has helped the law stand up to court challenges.

Anti-abortion protesters gather outside the U.S. Supreme Court in Washington, D.C., on June 23. File Photo by Jim Lo Scalzo/EPA-EFE

June

Abbott signed a “trigger” bill, under which a statewide abortion ban would automatically come into effect in Texas if Roe vs. Wade is overturned by the Supreme Court.

Under the bill, Texas doctors could face life in prison or $100,000 fines if they perform abortions. There is no exception for women at risk of suicide or self-harm, pregnant as a result of rape or incest, or in the case of severe or potentially lethal fetal abnormalities.

Women who face death or a “substantial impairment of major bodily function” if an abortion is not performed are exempted from the measure.

July

The state of Mississippi explicitly called on the Supreme Court to overturn Roe vs. Wade in making its arguments for Dobbs vs. Jackson Women’s Health Organization.

In the state’s opening brief, Mississippi Attorney General Lynn Fitch contended that the landmark 1973 ruling did not in fact guarantee the constitutional rights of women to legal abortions — but rather failed to settle “the issue of abortion once and for all.”

“This court should overrule Roe and Casey,” Fitch wrote, calling the decisions “egregiously wrong.”

“They have proven hopelessly unworkable,” he argued. “Nothing but a full break from those cases can stem the harms they have caused.”

During this month, 228 Republican members of Congress submitted an amicus brief in the case similarly calling on the Supreme Court to overturn Roe vs. Wade.

The high court’s decision in the case is expected in June.

August

Texas lawmakers approved a measure known as Senate Bill 4, limiting patients’ access to abortion-inducing pills and preventing providers from giving abortion-inducing medication to patients who are more than seven weeks pregnant.

Previous state law allowed practitioners to give the pills to patients who are up to 10 weeks pregnant. The new law, which went into effect Dec. 2, also prohibits mailing abortion-inducing drugs.

Texas Gov. Greg Abbott signed the bill into law at a Baptist church in Austin.

U.S. Attorney General Merrick Garland speaks to the press to announce a civil lawsuit intended to block Texas’ restrictive abortion law, at the Justice Department in Washington, D.C., on September 9. File Photo by Ken Cedeno/UPI

September

On Sept. 2, the Supreme Court declined to block the Texas ban, voting 5-4 against abortion providers who had filed an emergency application for relief against the law, which went into effect the same day.

Chief Justice John Roberts joined the three liberal judges in dissent.

The next week, Biden’s administration announced a lawsuit against the measure and U.S. Attorney General Merrick Garland called the law “clearly unconstitutional under longstanding Supreme Court precedent” — especially the provision that “deputizes all private citizens without any showing of personal connection or injury to serve as bounty hunters authorized to recover at least $10,000 per claim from individuals who facilitate a woman’s exercise of her constitutional rights.”

The U.S. House approved the Women’s Health Protection Act to codify abortion rights nationally in the face of the legal challenges mounted by Republicans.

Its fate in the evenly split Senate, however, remained dim with only 48 co-sponsors. Democrats Joe Manchin of West Virginia and Bob Casey of Pennsylvania opposed the measure.

Abortion rights advocates and opponents gather outside the U.S. Supreme Court in Washington, D.C., on October 4, the first day of the court’s new term. File Photo by Bonnie Cash/UPI

October

Biden’s administration reversed a Trump-era “gag rule” prohibiting health clinics that receive federal funding from advising patients about ending their pregnancies.

The Department of Health and Human Services said the new rule ensures that health centers receiving federal funds, under the family planning program known as Title X, will continue to do so even if they refer patients for abortions.

Also this month, opponents to the Texas law saw some short-lived relief.

Judge Robert Pitman of the U.S. District Court for the Western District of Texas granted a Justice Department request for a preliminary injunction blocking enforcement of the Texas ban.

Three days later, however, the 5th U.S. Circuit Court of Appeals reversed his decision, allowing the near-total abortion ban to again take legal force.

Biden’s administration filed an emergency application with the Supreme Court, asking it to bar implementation of the Texas law until legal challenges run their course.

Meanwhile, in its final brief for Dobbs vs. Jackson Women’s Health Organization filed Oct. 13, the state of Mississippi again explicitly called for overturning Roe vs. Wade and Planned Parenthood vs. Casey.

“Roe and Casey are indefensible,” Mississippi Attorney General Fitch wrote.

Texas Attorney General Ken Paxton speaks at the U.S. Supreme Court in Washington, D.C., on November 1 before the high court heard arguments in a challenge to the Texas abortion ban. File Photo by Tasos Katopodis/UPI

November

The Supreme Court spent three hours on Nov. 1 hearing arguments in lawsuits against the Texas ban, which were brought by abortion providers and the Justice Department. The court examined whether plaintiffs had legal standing to challenge the controversial law in federal court — as the Texas law bars such challenges.

During the hearing, two members of the court’s conservative majority — Justices Amy Coney Barrett and Brett Kavanaugh — sounded skeptical about the way the Texas measure was written. They were among five justices who’d earlier voted against blocking the law.

The U.S. House passed Biden’s Build Back Better Act, a large social spending package that includes “historic investments” in paid leave and maternal health that were strongly supported by backers of reproductive rights.

The proposed $2 trillion measure, which also includes money for numerous other progressive priorities, remains in jeopardy due to opposition from two key Democratic senators — Manchin and Kyrsten Sinema of Arizona.

December

The Supreme Court heard oral arguments in Dobbs vs. Jackson Women’s Health Organization and gave the impression that a majority of justices were poised to uphold the Mississippi law against abortion rights.

Roe vs. Wade established the right to abortion before fetal viability around 23 or 24 weeks. During the hearing for Dobbs, Justice Samuel Alito questioned the constitutional justification for any kind of “viability line.”

“The fetus has an interest in having a life,” Alito said while questioning pro-abortion rights attorney Julie Rikelman, suggesting that the right doesn’t change before or after viability. “What is the secular philosophical argument for saying this is the appropriate line?”

On Dec. 10, the high court again declined to block the Texas ban — but ruled 8-1 that a lawsuit seeking to block the law could continue.

Six days later, the high court formally sent the case back to the conservative-learning 5th U.S. Circuit Court of Appeals and rejected arguments from doctors and abortion providers to send it back to a trial judge.

Also, GOP legislators in Arkansas and Alabama introduced “copycat” bills that follow the Texas law in “deputizing” private citizens to enforce strict anti-abortion measures in return for cash awards.

They became the third and fourth states to do so, joining Florida in September and Ohio in November.

Next year…

Abortion rights is poised to be a central topic in 2022, as well — particularly with the expected Supreme Court decision in the Mississippi case next summer, and even more GOP-held states likely to pass similar legislation.

“The Supreme Court is in dialogue with social movements, with political institutions, with healthcare providers and that’s what brought us to this moment,” Florida State University law professor and abortion law expert Mary Ziegler said, according to ABC News.

Several states have already enacted trigger laws to ban nearly all abortions, which would take effect as soon as the Supreme Court rules in their favor — and several more could quickly follow suit.

Legal experts say that if the Supreme Court overturns Roe vs. Wade, the abortion fight would move to the state courts — as, without an overarching federal mandate, the states themselves would be responsible for determining their own abortion laws.

Legal scholars, abortion rights advocates and anti-abortion activists will be watching for the high court’s ruling in June.
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