In the ongoing presidential elections, a few key issues stand out repeatedly—one of the most polarising being abortion laws. Both candidates have been using this topic for their campaigns in one way or another, especially Harris has made it a central concern. Abortion laws are a crucial factor in people’s decision on who to vote for. A survey from ABC News has shown that 32% of Americans, a record high percentage, said that they would only vote for candidates who share their views on this question. It’s noteworthy that twice as many people that identified themselves as pro-choice felt this way, compared to people who identified as pro-life. With Roe v. Wade overturned in 2022, the situation has become more complex and divisive. So what exactly is the status quo? What is allowed, where, and under what conditions? What legal penalties are currently in place? How do both Trump and Harris use the topic of abortion laws to mobilise voters for them? Most importantly, what could change in the future depending on the election’s outcome? What does the future hold for women’s bodily autonomy?
A Quick Refresher
In a historical ruling, the U.S. Supreme Court decided in 1973 that banning abortions is unconstitutional, allowing individuals to choose to have an abortion until the foetus becomes viable. This ruling, commonly known as Roe v. Wade (or, as henceforth, Roe), guaranteed a federal right to abortion. The Supreme Court thereby placed rights to bodily autonomy right next to fundamental rights such as freedom of speech and freedom of religion, issuing it the highest degree of constitutional protection.
But in June 2022, almost 50 years later, all of this went down the drain when Roe was overturned. This took place in the Dobbs v. Jackson Women’s Health Organisation (henceforth Dobbs) ruling, in which the Supreme Court decided that there is no constitutional right to abortion. This effectively means that all states can decide abortion laws for themselves, taking the power away from individuals and giving it to governments. Currently, abortions are not constitutionally protected under any circumstances. However, the Dobbs ruling has not resulted in fewer abortions. In 2023, the abortion rates were actually higher than in the years before, suggesting that criminalising abortions doesn’t have its intended effect.
The Status Quo: Policies
Dobbs has led several states to issue total abortion bans as well as all kinds of more specific rules, both restrictive and protective. According to the Guttmacher Institute, of 50 states, 41 have implemented abortion bans with limited exceptions. This includes 13 states with total abortion bans (all Republican-led) and 28 states basing restrictions on gestational duration. These 28 states vary in how many weeks after LMP (last menstrual period) or conception an abortion is allowed, ranging from 6 to 24 weeks, or up to foetal viability. ‘Viability’ is a nonmedical term that refers to the ability of a foetus to survive outside the uterus, typically 24-26 weeks.
While some exceptions exist, such as risks to the pregnant person’s life or health, rape, incest, or lethal foetal anomalies, states differ widely in interpretation and enforcement. In many cases, unclear laws discourage providers, leading to clinic shutdowns post-Dobbs. Some states effectively don’t have any exceptions. States may also decide for up to how many weeks a person may have an abortion that is subject to such an exception. Moreover, proving, for example, that one’s pregnancy results from rape or incest can be quite difficult and time consuming. Thus, individuals may be forced to travel to a different state if the financial means are available, carry the pregnancy to term, or self-induce an abortion, often with significant risks.
The Status Quo: Legal Consequences
The legal situation remains problematic, as all states have their own laws and regulations on prosecuting for an ‘illegal’ abortion. Generally speaking, individuals having an abortion cannot be prosecuted, but the doctor/physician performing the abortion can be. Typically, the penalty is a fine of varying amounts (in Texas, for example, it’s at least 100,000 USD) and/or prison sentences (up to life in Alabama and Texas), as well as possible medical licence revocation. Additionally, some states prosecute those who ‘aid and abet’ an abortion, including nurses, pharmacists who issue medication, anyone who (partially) pays for the procedure or the medication, and anyone who drives the pregnant person to an abortion clinic. Penalties for aiding and abetting are also typically fines.
Trump and Abortions
“Women will be healthy, happy, confident, and free. You will no longer be thinking about abortion.” (ABC News)
As opposed to Harris’ campaign, abortion law is not a central concern for Trump. Although he considered himself pro-choice in 1999, his current position is that abortion law should be set by the states, claiming that this aligns with public preference. While this may not seem an aggressive stance, it allows for severe consequences, including life sentences and abortion bans even in life-threatening cases. Trump has called himself the most pro-life president in history and has repeatedly taken credit for Dobbs because he appointed three of the Supreme Court judges who voted for reversing Roe. During the debate against Harris in early September, he did not give a clear answer when asked whether he would restrict abortions further and sign a federal ban. Previously, he had said that he would veto such a ban. It seems as if Trump is trying to appeal to both the anti-abortion community as well as more ‘moderate’ individuals.
During his presidency, Trump supported several changes that made accessing abortion care more difficult, such as defunding Planned Parenthood clinics and other organisations offering abortions. He also appointed 226 ‘pro-life’ judges to lower levels of federal courts. In 2017, the U.S. Department of Human and Health Services released their new strategic plan which defined life as beginning at conception.
Harris and Abortions
“One does not have to abandon their faith or deeply held beliefs to agree the government should not be telling a woman what to do with her body.” (ABC News)
Harris has made abortion rights one of the central topics of her presidential campaign and has been very vocal about it. She aims to restore Roe, which would protect abortions nationally up until foetal viability. In her keynote address at the Democratic National Convention, she pledged to sign into law legislation that restores this federal right. However, in order to sign this bill, it first needs to be passed by Congress. In order to get there, she has advocated for eliminating the Senate’s 60-vote filibuster threshold and bringing it down to 51 votes. Furthermore, Harris has stated that she will not allow a federal abortion ban and has pinned the blame for Dobbs on Trump.
At the time of writing, Harris has the lead among female voters in swing states, underscoring the effectiveness of her campaign’s focus on abortion rights.
The Future
In the past, Republicans were the primary advocates around abortion, aiming to overturn Roe and end the federal right to abortion. They sought to disrupt the status quo, while Democrats largely defended it. Post-Dobbs, however, the tables have turned: abortion is an issue that mostly concerns the Democrats since they are now in the position of pushing for drastic change.
A future under Trump appears grim for abortion rights. While it’s unclear whether he would sign a federal abortion ban, maintaining the status quo is already harmful, as he is at least partially responsible for Dobbs.
A future under Harris sounds more promising for many people, especially minorities, and her stance has proven to be a deciding factor in who to vote for. However, reversing Dobbs will not happen overnight, and accessibility challenges will persist. The question remains whether states would still be able to find loopholes and restrict abortions in other ways that are not related to the viability mark. Even with an immediate restoration of Roe, (re)opening abortion clinics and providing access to medication will take additional time. Whether providers will (re)open at all in times of uncertainty is also doubtful. All that remains to do is hope for a better future.
