When Mississippi passed its new abortion law last May — banning all abortions after 15 weeks — it would have been easy for court watchers to be cynical. The same reaction occurred in some circles last week when Mississippi’s attorney general urged the nation’s highest court to, in the words of The New York Times, “do away with the constitutional right to abortion and to sustain a state law that bans most abortions after 15 weeks of pregnancy.”
It has become all but an annual tradition for red states to pass abortion laws seeking to regulate abortion in a bid to trigger a new Supreme Court fight. And, like clockwork, the anti-abortion and abortion-rights contingents retreat to ideological bunkers and toss the same rhetorical grenades they’ve been hurling at each other for the past 48 years.
But something deeper may be at play within U.S. jurisprudence surrounding abortion. While the law has been slow to change, reproductive science is advancing at a remarkable clip. And, if we’re serious about trusting science, as so many yard signs declare these days, it’s time the court takes a renewed look at Roe v. Wade.
Since Roe, the right to abortion has always been qualified. At heart, it’s a legal balancing act between the right to life for the unborn and the rights of mothers to bodily autonomy, or in legal parlance, the right to “privacy.” This is how Roe justified its trimester approach that allowed abortion in some instances, but not in others. The last major revisit of abortion rights came in 1992 and similarly readjusted that balance.
Thirty years later, with contraception widely available and effective and with babies younger than 28 weeks able to survive outside the womb, it may be time to recheck the balance.
In 1973, the year Roe v. Wade was decided, The New York Times ran a headline saying 1 in 3 women using contraception get pregnant. But today, there are long-term contraception options available that are 99.95% effective. In the 1970s, IUDs, for instance, were still unsafe and frequently taken off the market when Roe was first decided.
Similarly, women’s ability to manage their own contraception has improved, not only through long-term options but by one-time use options, many of which, weren’t available until 1993. There are also emergency contraception options that weren’t invented until 1998 and only became available over the counter in 2006.
The ability of women to prevent pregnancy without the use of abortion has never been greater. This has been further aided through policies such as the 2010 Affordable Care Act, which allowed the overwhelming majority of women in the United States to have their contraception covered through health insurance.
And, as mentioned, the ability for babies to survive outside the womb has improved greatly since Roe. At the time, babies born younger than 28 weeks could not be expected to survive. Today, babies born before that have a 79% chance of surviving. The age of fetal viability may continue to drop with new advances such as the Biobag, which could both give premature babies a chance at a better life and eventually allow even younger babies the ability to survive outside the womb, perhaps as early as conception itself.
Mississippi’s newest abortion law then comes at an important time when the Supreme Court might revisit how the landscape of reproduction has changed, and how our laws should recalibrate to reflect that reality.
Christopher D. Cunningham is the managing editor of Public Square Magazine.