As the Senate proceeds with confirmation hearings for Supreme Court nominee Judge Ketanji Brown Jackson, the hot button question of abortion as federal law has — as expected — been raised.
Senator Dianne Feinstein (D-Calif) delivered the opening statement for Jackson’s confirmation on Monday, March 21, noting reproductive health as a critical issue in the Supreme Court’s current term — an issue Jackson would weigh in on if confirmed.
“In the current term alone, the Supreme Court is addressing cases on issues that are foundational to who we are as a country. Let me just give you three examples,” Feinstein said. “The court is considering a woman’s fundamental right to control her own body and make her own health care decisions.”
On Tuesday, Feinstein continued her questioning about Roe, asking Jackson, “Do you agree with Justice Kavanaugh that Roe v. Wade is settled as a precedent?”
Jackson responded that the case is “the settled law of the Supreme Court concerning the right to terminate a woman’s pregnancy.”
In response to Feinstein’s bringing up the issue, the NAACP took to Twitter to speak on the significance of Roe v. Wade and the effect on women of color that the possibility of the 1973 ruling being overturned would have.
Roe. v. Wade turns 50 years old next year but has been challenged by state politicians with restrictions that make it difficult for pregnant people to access abortion — including states like Texas, which, in 2021, prohibited most abortions after about six weeks of pregnancy. The Texas law also makes no exceptions for pregnancies resulting from incest or rape.
When the Texas law came before the Supreme Court in Dec. 2021, the justices upheld it with a 5-4 ruling.
By the end of the term in October, the court is expected to rule on a similar Mississippi law that would directly violate Roe v. Wade by banning almost all abortions after 15 weeks of pregnancy. By this time, Jackson, if confirmed, would’ve taken her seat in place of Justice Stephen Breyer.
Last fall, Laurie Roberts, the head of the Mississippi Reproductive Freedom Fund and Yellowhammer Fund told Newsweek that Black people in the South will be disproportionately affected if Roe v. Wade is struck down because of the large Black population in that part of the U.S.
“When you talk about the South, you’re talking about Black folks and abortion access, because this is where we live,” Roberts said. Pregnant people with financial resources would potentially be able to travel to another state to access an abortion. However, Roberts added, “Low income people are always disproportionately impacted by abortion bans, and Black and brown people are more likely to be low income.”
In some southerns states, according to 2019 data from Kaiser Family Foundation, Black birthing people are reported to have accessed abortion at higher rates than their white counterparts.
In Mississippi, Black people account for 74% of abortions, compared to white people, who account for 20%. Similarily, in Alabama and Georgia, Black people access abortion at higher rates. However, in South Carolina, white people account for 49% of abortions, compared to Black people, who account for 39%.
In other regions of the country, white people account for the majority of abortions. In Idaho, white people account for 68%, whereas Black people account for 3%. Also in Arizona, white people account for 38% and Black people account for 11%.
Overall, Black and white birthing people accessed abortion at similar rates in 2018 — according to data from The Centers for Disease Control and Prevention (CDC) based on 31 areas that reported race and ethnicity abortion data. The CDC reported that white women accounted for 38.7% of all abortions and Black women accounted for 33.6%.
Before Judge Jackson’s appointment by President Biden, his administration expressed its commitment to “codifying Roe v. Wade and appointing judges that respect foundational precedents like Roe.”
While Jackson doesn’t have much of a record in abortion cases, she does have some experince ruling in cases related to reproductive health. In 2018, she ruled against the Trump administration’s decision to cut grants under the federal Teen Pregnancy Prevention Program.
Much earlier, in 2001 while working as a lawyer in private practice, Jackson wrote an amicus brief on behalf of pro-abortion rights organizations defending a Massachusetts law that prevented anti-abortion protesters from being near facility entrances.
Several women’s health organizations have endorsed Jackson to join the nation’s highest court.
“Judge Jackson’s nomination is monumental, particularly for Black women and girls who may soon, finally, see themselves represented on the nation’s highest court,” Power to Decide CEO Dr. Raegan McDonald-Mosely said in a press release. “Moreover, it is another step toward having the highest court in the land better represent the country and the broad support for reproductive health care access that exists within it.”
In a statement from the National Partnership For Women & Families, President Jocelyn C. Fyre noted that “Black women have always embraced both the ideal and the hard work of seeking justice through the courts — even when the Constitution defined us as less than fully human.”
“From 1781 onward, when an enslaved Black woman sought her freedom through the courts,” Frye continued, “to the late 19th century, when the first Black woman won admission to the bar, to the courageous legal champions who fashioned legal strategies to dismantle segregation,” Fyre wrote. “Black women lawyers have been on the frontlines of many of the nation’s most important legal developments — from the fight to desegregate schools, to developing the legal theories that paved the way for women’s equality in the law, and more. Too many Black women have been overlooked or denied consideration for the highest federal courts and it is on this legacy that Judge Jackson’s nomination stands today.”
Jackson is expected to continue undergoing questioning by members of the Senate Judiciary Committee through Wednesday evening.