On December 1, the Supreme Court will hear oral arguments on Mississippi’s abortion law. The law bans abortions past 15 weeks of pregnancy and only allows abortions “in medical emergencies or for severe fetal abnormality” with no exception for rape or incest.
The law, and other states’ laws like it, directly challenge Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide. If the court rules in favor of the Mississippi law, it will succeed in undoing Roe, and abortion access will take a turn for the worse.
Related: How the Texas abortion law could lead to rollbacks of LGBTQ rights
Sixteen states have already passed anti-abortion legislation since the beginning of 2021, bringing the total to 106 bills enacted this year so far. Restricting access to safe, legal abortions isn’t just an issue for heterosexual folks. It also affects LGBTQ people, Black and Indigenous people of color (BIPOC) and everyone else. Approximately six percent of abortion seekers in 2014 were LGBTQ-identified, according to a study by the Guttmacher Institute.
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But pro-choice advocates who spoke on a panel in Netroots Nation progressive political conference last weekend identified four ways to protect abortion rights: putting a stop to gerrymandering, abolishing the Senate filibuster, enacting the Women’s Health Protection Act, and adding four seats to the Supreme Court.
How gerrymandering empowers anti-abortion extremist politicians
Anti-abortion legislation is rooted in discrimination, Rep. Ayanna Presley (D-MA) said at the Netroots Nation conference this last weekend.
“We’re putting [legal abortion access] out of reach for our most vulnerable, our lowest-income sisters, our queer, trans and non-binary siblings, black Latinx, [Asian-Americans, Pacific Islanders], immigrants, disabled [and] indigenous people,” Presley said.
Gerrymandering, the practice of changing electoral district lines to create political strongholds, has given many Republican elected officials an unfair advantage in implementing abortion bans. Gerrymandering in the last decade has increasingly allowed Republican legislators to introduce legislation that is anti-abortion or anti-LGBTQ without fear of being voted out of office, while also maximizing Republican votes.
“Republicans swept state and federal elections through gerrymandering and voting restrictions, and we’ve really seen an astronomical increase in abortion bans across the states,” Kelsey Rylan, Director of Federal Strategies for the abortion access organization All* Above All, said during the Netroots panel.
Organizations such as the progressive political group Indivisible and All On the Line are actively fighting gerrymandering, offering one way to fight these anti-abortion political maneuvers.
Two Democratic bills could help protect abortion rights in the courts
Rep. Judy Chu (D-CA) has introduced The Women’s Health Protection Act [WHPA]. The law would “establish in federal law, the right for doctors to provide individuals to receive abortion care, free from political interference,” Presley said.
The law itself states, “[Anti-abortion] restrictions harm the basic autonomy, dignity, and equality of women, and their ability to participate in social and economic life of the nation.”
The law would also lay the groundwork for legislators to overturn archaic laws like the Hyde Amendment, which bans insurance coverage of abortion for people who are enrolled in Medicaid health insurance.
“We know that this disproportionately impacts low-income folks BIPOC communities, LGBTQ people, young folks,” Pressley added.
Expanding the number of seats on the Supreme Court would also offer a solution for protecting abortion in the courts. With a current 6-3 conservative slant in the court, adding four seats would offer more votes to help stop legislation geared towards abolishing abortion protections. There’s already a bill in the House and a bill in the Senate to add four seats to the court.
“It’s also not precedent-setting,” Pressley said. “We’ve done this before. We’ve done it seven times. People don’t know that. They try to radicalize this issue and make it as if it’s some sort of fringe solution, but we have the authority, and we have the precedent of history on our side… There’s no question that it is constitutional, there’s no question that Congress has the ability and, in fact, the responsibility to set the size of the Supreme Court.”
However, the only way to pass the WHPA and expand the Court is to eliminate the Senate filibuster.
Could eliminating the filibuster be the answer?
As it stands, the filibuster requires 60 votes for any legislation to become law. Because the Senate is currently split between 50 Democrats and 50 Republicans, progressives worry that they’ll never get 10 Republican Senators to support pro-choice legislation. The filibuster has already allowed Congress to stall legislation in support of LGBTQ and civil rights.
If all 50 Democrats supported abolishing the filibuster, it would allow Democrats to pass legislation with 50 Democratic votes and Democratic Vice President Kamala Harris casting a deciding majority vote.
“The filibuster is inherently undemocratic, and not required under the Constitution,” the progressive organization Indivisible wrote. “For most of the Senate’s 230-year history, legislation was passed with simple majorities.”
“Groups such as Planned Parenthood and NARAL know that killing the legislative filibuster could remove an obstacle to getting abortion rights legislation on the books while Democrats control the White House and both chambers of Congress for the first time in a decade,” Politico reported.
With 50 Democratic Senators and a simple majority vote, the Senate could abolish the filibuster. Doing so would protect abortion, and in turn, LGBTQ rights. However, some Democrats have expressed worry that getting rid of the filibuster would allow Republicans to railroad all sorts of anti-progressive legislation as soon as they control both chamber of Congress.
