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As the Supreme Court weighs the future of 'Roe v. Wade', experts look beyond abortion

Demonstrators gather in front of the Supreme Court as the justices hear arguments earlier this month in <em>Dobbs v. Jackson Women's Health</em>, a case about a Mississippi law that bans most abortions after 15 weeks.
Chip Somodevilla
Getty Images
Demonstrators gather in front of the Supreme Court as the justices hear arguments earlier this month in Dobbs v. Jackson Women's Health, a case about a Mississippi law that bans most abortions after 15 weeks.

Before Gloria Steinem became the nationally recognized activist for abortion rights and feminism, she was a 22-year-old living in England and pregnant when she didn't want to be.

Now, like many, Steinem is following the Supreme Court arguments about the Mississippi abortion case. At the center of the case, known as Dobbs v. Jackson Women's Health Organization, is a challenge to the Mississippi law that bans abortion after 15 weeks of pregnancy.

Speaking from her own abortion experience in 1957, Steinem said a decision to overturn Roe v. Wade would not stop Americans from seeking abortions.

"The question is whether it will be done in safety or not," Steinem told NPR's Mary Louise Kelly. "That is the simplest way of putting it, and that is what the court has to decide."

Overturning the right to abortion would be a step toward making the U.S. an authoritarian country, Steinem says.

"Controlling reproduction has always been the first step in any hierarchical or authoritarian government," she said. "In this still-patriarchal time, looking to control the one thing they don't have is the first effort in creating a hierarchy."

Steinem talked about abortion as an issue of choice, saying of anti-abortion activists who may be angry at her words: "Then they don't have to have an abortion."

"What democracy means is the right to make decisions for ourselves, and in the majority to make decisions for the country, but first to make it for ourselves," she said. "Freedom of speech is not different from freedom of reproduction."

The decision for Mississippi's highly watched abortion case won't come until next year, but some are already looking ahead to what else could be changed if Roe v. Wade is overturned or undermined.

Mary Ziegler is a law professor who studies abortion rights. She says that other rights, including access to birth control and in vitro fertilization, might be in play as well, partially because what abortion is defined as is contested, too.

"The fight about the contraceptive mandate and the Hobby Lobby decision — that all turned on the idea that some common contraceptives are, in fact, abortion-inducing drugs," Ziegler says. "So some states may reach out to criminalize some forms of contraception by deeming them abortion. The same goes for steps in infertility treatment like IVF."

Ziegler says that there wouldn't necessarily need to be another Supreme Court decision before states would take that step, but that if the states did so, the court would likely be forced "to weigh in potentially on whether that contradicts the court's holdings on contraception or whether it's OK because the court agrees that those are in fact abortifacient drugs, not contraceptive drugs."

The Obergefell v. Hodges decision in 2015 that legalized same-sex marriage in all 50 states is another that Ziegler says could potentially be revisited by the justices, with both Justices Alito and Thomas having mentioned the possibility in passing.

"I think it's fair to say that in the sort of panoply of culture war issues, that rights for same-sex couples and sexual orientation are still among the most contested, even though certainly same-sex marriage is more subtle than it was and than abortion was," Ziegler says. "I think that certainly the sort of balance between LGBTIQ rights and religious liberty writ large is a very much alive issue, and I think some states may try to test the boundaries with Obergefell."

When the decision on the Mississippi case comes next year, Ziegler says, she and others will be looking to see whether it signals a move by justices that could open the door to overturning other established law.

"I think what we're really going to be looking for is we know there are camps among the conservative justices about how far to go, how quickly," she says. "We just don't know how large each of those camps are, and we'll be looking for signs of that."

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Wynne Davis is a digital reporter and producer for NPR's All Things Considered.