We Could LoseRoe v. Wade Next Year. What Now?

Photo: ALEX EDELMAN/AFP via Getty Images

When the news broke on Friday that Justice Ruth Bader Ginsburg had died at age 87, leaving her seat open on the Supreme Court, millions of women across the country barely had time to process their grief before a panicked question set in: What happens to abortion rights now? As Trump moves to nominate a conservative replacement, the fate of Roe v. Wade, the landmark case that made abortion legal throughout the U.S., has never been so tenuous.

The terror of a post-Roe America is something Robin Marty has spent years preparing for. She's literally written the book on it, twice: The End of Roe v. Wade and A Handbook for a Post-Roe America . She also serves on the board of the Yellowhammer Fund, an abortion fund in Alabama, one of the states that's been hardest hit by the barrage of abortion restrictions passed in the last decade. When the news of Justice Ginsburg's death broke, Marty was preparing to move to Alabama to work at a newly opened clinic — one that the Yellowhammer Fund bought with an influx of donations after Republicans in the state tried to effectively ban abortion in 2019. Now, though, she's not sure she should. "I don't know if I can take three children down to Alabama right now," Marty says, "knowing that we're talking about probably a 95 percent possibility that within two years, abortion is not going to be legal there or anywhere near there. I probably won't have a job there in two years."

There are immediate ways that Ginsburg's death could likely have horrifying implications for abortion rights in America, especially when combined with the outcome of November's presidential election and the outcomes of various upcoming Senate races. But there are also less scary, even possibly good outcomes that Marty envisions Ginsburg's death could galvanize into being, if enough people are mobilized toward the right goals, and with the most effective action.

In our interview, we covered everything you probably want to know right now: how abortion could be restricted in the next two years, who is most at risk, what to do (vote), and what not to do (only focus on voting). We even talked about where to find a little hope.

Let's get the worst-case scenario out of the way: A conservative is appointed to the Supreme Court.
John Roberts wants to overturn Roe, but he wants it to be legitimate. And we already have a bunch of cases on our way. We have the D&E bans [which would outlaw the most safe and common method of second-trimester abortion]. Alabama has a total abortion ban that could make its way up to the Supreme Court if they wanted to actually allow it and say that they want to hear it. And, most pressing, I think, is if the FDA's fight over medication abortion right now goes to the Supreme Court. If the GOP can get another conservative onto the bench, then they don't even need Roberts anymore. They can overturn Roe over anything. They don't have to wait for the right case.

Any idea who it'll be?
I'm going to say right now the nominee is going to be Amy Coney Barrett. I can basically put money down on that. They want to be able to say that Democrats are hypocrites and they're anti-woman, and they're anti-Catholic.

Then what happens? What are you worried about the most?
If you had asked me yesterday, I would have given the line that Roe doesn't exist already for so many people. There are so many people that are not protected. There are so many people for whom abortion access doesn't exist — in the South, in the Midwest, for poor people, for Black and brown people. And that's all true. But Justice Ginsburg dying makes it all scarier, because we see the stark reality of what the landscape will look like after Roe in a way we hadn't before.

On a map of the U.S., you've got a wall in the South and Midwest of trigger laws: The second Roe v. Wade is overturned by the Supreme Court, abortion is illegal in about a dozen states with these laws. In another ten, their trigger laws say the legislature is allowed to meet and make abortion illegal in the state. (And because we know how conservative their legislatures are, we know that that means that abortion is going to be overturned.) We're getting to a point where we are literally talking about a region in which every person who needs an abortion will have to fly somewhere. I think it's fair to say we're going to see abortion is completely illegal except for the West Coast, which is on fire, the Northeast, and then basically Colorado, Minnesota, Illinois, and New Mexico.

What's the timeline for this nightmare?
We are not going to see any sort of federal change until at least June of next year. The earliest the case could be taken up is October because that's when the next court session starts. Traditionally, arguments are heard in March and then the rulings are given in June. There is no case that can be decided until June, unless they somehow fast-track it, which is utterly unprecedented for the court.

Okay. Now what are the chances they get a conservative on the court?
I am cautiously optimistic that there's not going to be anyone appointed at least before the election. My best-case scenario is that we have enough Republican senators who are up for reelection in tight races that they know that pushing through a Trump pick right now is going to be the thing that breaks them. But even then, what would happen if Trump loses the White House, and then all of these senators in lame-duck land are just like, "Oh well, fuck it"? And they decide to let him put a pick through and they force it through before he is out of office. If they put somebody through in a lame-duck session, that would give Democrats all the moral authority to try and expand the Supreme Court right after.

What if the seat stays open?
I do not believe that there's going to be a ruling that's going to completely overturn Roe v. Wade with fewer than nine judges. I think that if there's not another conservative on the bench, Roberts will decide that he does not want to overturn Roe. But then he's just waiting, which is terrifying. And even if a progressive is appointed and put into the seat, then we would have basically the same balance of court that we have right now, and Roberts could decide to overturn Roe on another case.

How much can we change by voting?
I talk to college campuses and my spiel is, this is the most important election you will ever see, but also we have to know that elections are not going to save us. Because even when we create change in an election, it is such temporary change.

In 2008 Obama was elected, and Democrats swept the House, and swept the Senate. There was a period in 2009 when we had a veto-proof Senate, the House Majority, and the White House. And especially when it comes to abortion rights, we failed. We passed the ACA, but it was not the ACA that we really needed. And as a result of getting the ACA passed, we put one of the most restrictive languages yet on the right to an abortion, by refusing to allow it into insurance plans because abortion was the bargaining chip. So even when we had all of the power, everything going our way, abortion was still tossed aside. Reproductive rights are never going to be a priority. Never look at federal elections as something that's going to save us.

What do we do instead?
It's all about local power. One of the things that happened in 2009 that still upsets me is that we had built an entire grassroots state-by-state movement to get Obama elected into the White House and to get electoral change at the federal level. And as soon as everybody was seated, as soon as that election was over, it all got dismantled. It all got trashed. It was like, okay, the work is done, we can go home now. And everybody took away their resources and all of these groups were left floundering. They died. The Tea Party did the exact same thing. They set up hyperlocal, they organized, and they kept their resources hyperlocal and built power. And they did that in ten years.

So as frightening as it is to live in this world right now, it at least gives me faith that if we actually put our resources in the right places and especially invest locally, we could succeed. We need to invest in the people on the ground, invest in mutual aid, make sure that every group is supported, rather than just saying, "I care about the South, but I care about the South when it comes to Texas and Georgia, because those are places where we can make electoral wins, but you know, I'm not going to invest in Mississippi." We are never going to have power until people give us resources to have power there. A progressive movement and a progressive agenda, an agenda that believes in civil rights and equal rights, is going to succeed. There is no reason that it can't succeed in every state. It just has to be given the resources to do it.

If 2008 was a win that ended up setting us back because people de-mobilized, is there an opposite teachable moment? A setback that galvanized us?
I look at what happened in Alabama in 2019 as that moment. It was a moment that explained what we could do. The Yellowhammer Fund was funding maybe a couple of people every week. When Alabama decided to pass a complete, total abortion ban, what did it do? It made the entire nation turn around and say, This is not something that we're willing to stand for.

Money poured in. As a result, we were not only able to fund close to $500,000 worth of abortions within the last year, we were able to purchase a clinic that was about to close. The act of banning abortion completely in Alabama had such a catalyst moment that it ended up expanding Alabama's abortion access. And it wasn't just that people were able to get abortions. We were also able to start a family-justice group, so that people who also wanted to carry pregnancies to term were able to get resources that they needed. All of these groups now have power and resources and are able to do political work and mutual aid on the ground and are able to do these things that the government's not doing.

It's always going to hurt to have things be illegal. It's always gonna hurt to have things blocked. But if we're relying completely on the government in order to help us, then we're always going to be stuck in this idea of What can an election win? rather than What do people deserve?

Should we be stockpiling Plan B, or buying it to give to others?
No, no, no, no. The two absolute worst things that you can do when you're worried about this kind of crisis is hoard emergency contraception, and give money to Planned Parenthood. Planned Parenthood does not provide abortions in most of the states that only have one clinic. If you want to make sure that people can get abortions, you have to give money to abortion clinics and abortion funds.

If you want to go out and get two types of contraception in case something happens to you or somebody you know, that's fine. But if you say, Oh my God, everything's awful. I'm going to go and buy all the ECC off the shelves, then you are taking an emergency contraception away for people who are going to try to access it because they are actually having an emergency. And if you are a person without the activist network to be able to get emergency contraception out to other people and to have people who would know to come to you, all you're doing is hoarding a resource. The Yellowhammer Fund sends emergency contraception overnight for free to Mississippi, Alabama, and the Florida panhandle.

This interview has been lightly edited and condensed for clarity.

We Could LoseRoe v. Wade Next Year. What Now?