Still fighting for life 100 days after Dobbs

Lifelong Arizonan Ellen Sweeney has worn one bracelet for almost 50 years. It’s a metal band engraved with the date “JAN 22, 1973.” That was the day the U.S. Supreme Court released the Roe v. Wade decision, a ruling that invalidated state pro-life laws by declaring the constitution guaranteed a right to an abortion.

Sweeney was a 14-year-old Catholic high school student the fall after the court’s opinion came down. She quickly became familiar with the case after a group from a local college recruited her and other teens to join a speaking group and give talks in high schools and universities about abortion. That’s also the year she received the bracelet, modeled after the POW bracelets from the Vietnam war. She says the only time she hasn’t worn it was when police forced her to remove it decades ago during her arrest for participating in a pro-life rescue. These days, she serves as the campaign leader for 40 Days for Life in Phoenix, participating in prayer vigils outside of the local abortion facility, Family Planning Associates.

She planned to take the bracelet off for good after the overturn of Roe v. Wade. At first, she assumed that would come quickly. It took almost 50 years until the Supreme Court struck down the decision on June 24 in Dobbs v. Jackson Women’s Health. After Roe was overturned, abortion remained legal in Arizona for several weeks despite a state law from 1901 that protects babies from abortion except to save the mother’s life. An injunction from 1973 prevented enforcement of the law until, on Sept. 23, a judge ruled to lift the injunction and allow the law to take effect. It will remain in effect as litigation continues.

Even then, Sweeney didn’t put the bracelet away. “I didn’t feel like the finale was there,” she said. Until women in her community are no longer seeking abortion and no longer being referred out of state, she said, she can’t take it off. At this point, she’s skeptical that day will come in her lifetime.

“We’re only as good as the most recent law in our most recent legislature and our most recent governor,” she said.

Talk of “trigger bans” leading up to the overturn of Roe made it sound as if the Supreme Court’s Dobbs decision would automatically mean the end of abortion in some states. But Sunday marked 100 days since the release of the Dobbs decision, and plenty of cases are still pending in the courts that could dramatically change the situation in states that protect unborn life. For some states, the outcome of the next election could also change the status quo. With the unknowns in the months ahead, pro-lifers like Sweeney are urging others to stay involved.

The week before the Arizona judge lifted the injunction on the state’s pre-Roe law, a Hamilton County judge in Cincinnati granted the request by abortion facilities to temporarily block enforcement of a law protecting babies with detectable heartbeats from abortion. The law passed in 2019 and took effect the day of Roe’s overturn. It allowed abortions to resume throughout the state through 20 weeks of gestation.

“From a very rudimentary legal perspective, most pro-lifers understand that Roe was the biggest roadblock in our way,” said Allie Frazier, the former director of Northeast Ohio Right to Life. “This surprised us because this happened post-Roe.”

Rita Vitale is a volunteer sidewalk counselor who said she has been coming to the Northeast Ohio Women’s Center in the Cleveland area regularly for about five years. She said she noticed an immediate decrease in the number of women coming for abortions after the heartbeat law took effect. She hasn’t seen an increase again since a judge blocked the law. But Frazier pointed to reports in the local news that the abortionist at the facility kept the names and contact information of women who were too far along in their pregnancies to get abortions under the heartbeat law. Abortionist David Burkons told the Akron Beacon Journal the facility was calling these women back to reschedule their abortions. The next hearing in the case is scheduled for Oct. 7, and the law will remain unenforceable until at least Oct. 12.& Frazier said the legal back-and-forth is “messy, it’s frustrating, but it is part of the process.”

Now, Frazier has her eyes on the November election. The outcome of the state Supreme Court race could determine how the court will rule on abortion in the future. The court currently has four Republican and three Democrat justices. Three Republican seats are on the November ballot, including the race for chief justice.

Ohio’s case shows how unsettled the legal wrangling on abortion remains in most states. The Hamilton County judge stated outright in his ruling blocking enforcement of the heartbeat law that “there is a fundamental right to abortion under the Ohio Constitution.” Lower courts in other states, including Michigan and South Carolina, have hinted at a similar perceived right in their state constitutions. Should state supreme courts declare a right to abortion, those states would find themselves stuck in a similar situation to Kansas, where a state high court ruling has stymied efforts to pass protections for unborn babies since 2019.

Steven Aden, chief legal officer at Americans United for Life, said any argument about a right to abortion ultimately has no footing post-Dobbs. “They literally have to make it up out of thin air now, because there’s nothing to hang it on at the federal level,” he said. “All that jurisprudential structure of abortion at the federal level is totally gone. Not just gone. But the U.S. Supreme Court has said there was never anything to it to begin with.”

He pointed to victories in states like Mississippi and Florida, where state supreme courts previously declared a right to abortion but pro-life laws are currently in effect. Federal courts also dismissed dozens of abortion cases following Roe’s overturn. “They got creamed in the federal courts after Dobbs. That’s not an overstatement,” Aden said.

But the legal victories in certain states don’t mean the fight is over. “At this moment in time, it’s difficult to say that any state has passed through the risk of a lawsuit being filed,” said Ryan Bangert, senior vice president at Alliance Defending Freedom, a legal group that is involved in defending pro-life laws in states including Arizona, Michigan, and West Virginia. “The dropping of one lawsuit does not necessarily mean that others won’t be brought.”

Pro-lifers in Arizona kicked off a 40 Days for Life campaign—a 40-day prayer marathon outside of abortion facilities—the week after their state’s pro-life law took effect on Sept. 23. Laura Pedersen, a campaign leader in Tucson, said her team called on local pro-lifers to come out in larger numbers on Monday, Sept. 26, in anticipation of an increased number of pro-abortion activists and media at the facility. But she said only eight pro-lifers showed up. That Friday—usually the biggest day of the week with around 20-30 pro-lifers—only 12 came.

“It's been a battle with informing people [that] no, the work is still happening as long as there’s still abortions in our neighboring states and people can be referred to those places for abortions,” Pedersen said, emphasizing the importance of being outside of former abortion facilities still doing abortion referrals to tell women about pro-life pregnancy centers and other resources. “We still have to be on the sidewalk to show our level of support for the women.”

Sweeney in Phoenix said pro-lifers there also seem to question the need to continue showing up at abortion facilities when abortion is no longer legal in the state. But she’s encouraged them to stay involved, reminding supporters in recent emails that Family Planning Associates is still open and referring women to a facility in Las Vegas. According to that facility’s website, it shares two abortionists with Family Planning Associates in Phoenix.

“I wish … as much as anyone this was done and over. I’m tired, very tired, after 49 years in the trenches,” said Sweeney. “But wanting it done and actually being done are two different things. Again, as long as it’s happening, we have to be there, we have to answer the call and stand in the gap and try to change hearts and minds and help people where we can.”