This morning, the U.S. Supreme Court heard oral arguments in Dobbs v Jackson Women’s Health Organization, a case that poses a direct challenge to the landmark ruling in Roe v Wade that states cannot ban abortion prior to viability. And like almost every Supreme Court case concerning abortion rights since Roe v. Wade, today’s argument just illustrates further why it was never a good idea to look to the Courts as the principal strategy for advancing the right to reproductive freedom.
Sadly, the debate that took place today was not much different than the debate in Roe v Wade in 1973 or Planned Parenthood v. Casey in 1992. Even the liberal wing of the Court could not seem to find much reason to uphold key aspects of Roe and Casey except that it is important to respect the prior decisions of the Court. While telling, it is hardly surprising considering the public discourse surrounding abortion has not changed much in the last fifty years.
A question we have been repeatedly hearing asks “how did this happen?” It is important to note that it did not happen overnight. For decades, states have been enacting targeted restrictions on abortion providers (or TRAP laws) with the express purpose of limiting access to abortion, which has chipped away at the the right recognized in Roe, especially for the most marginalized communities.
For those who want more context, though, here is a bit of (well-documented) history that you won’t find in any Court opinion. While the reproductive rights movement has been focused on the Courts, an extremely well-funded movement that began in the mid-1970’s, originally called the New Right, has been waging a campaign to sway public opinion against the right to abortion. Was this movement really about abortion in the beginning? Of course not. In fact, at the time Roe was decided, secular and religious leaders alike supported the right to abortion. Even the Convention of Southern Baptists applauded Roe v. Wade for advancing “religious liberty, human equality, and justice.”
What actually brought most of the heavy hitters of the New Right to the table was their concern that the Supreme Court might end tax exemptions for segregated Christian schools and universities. But they couldn’t build a national movement around racial discrimination, so they seized upon abortion – an easy target for attracting conservatives because of its association with liberals and feminists. They then set about to recast abortion as the ultimate sin and engage evangelical pastors across the country to rally their congregations behind that message – and political candidates who would carry that message along with the rest of the New Right agenda.[1]
The result is that while the reproductive rights movement has been trying to litigate its way out of a paper bag, the other side has managed to radicalize a sizable portion of the population who will do anything, or vote for anyone, they think will stop abortion. Among those who have been radicalized are elected officials and judges at all levels. In fact, the New Right and its successors have gone even further, waging a campaign to rewrite history altogether so that a sizeable percentage of the population now believe that the founding fathers intended the United States to be a Christian Nation – not just a nation founded on Judeo-Christian principles but a Christian Nation, which enables the powers behind the movement to use the bible to justify a whole range of political positions on issues ranging from capitalism to climate change.
The other major achievement of the anti-abortion movement is that they have convinced just about everyone – not just the radicalized folks who believe this is a Christian nation — that the right to abortion is necessarily in tension with religion, which puts many people who actually support the right to abortion in a very uncomfortable position. As a result, people seem to be more okay with abortion restrictions (as long as those restrictions don’t affect them) now than they were in 1973 and accept without question the fiction that states have an interest in the potentiality of human life and that’s what motivates abortion restrictions.
In truth, it was not until the late 1800s that abortion was criminalized across most of the United States and what motivated those restrictions was not some concern for fetal life, but nativism – the concern that the white Anglo Saxon protestant race would be diluted by an onslaught of immigrant and Catholic babies. The medical profession and its need to seize control of the means of reproduction also played a major role, but there again a big part of the concern was that abortions were more common among protestant than Catholic women. Indeed, throughout history, this is what reproductive oppression is all about – power and population control – encouraging or coercing some to become mothers while devaluing the motherhood rights of others.
Had the Court in Roe put restrictions on abortion and contraception in their proper historical context – as just one thread in a broad tapestry of policies that use reproductive oppression as a tool of population control – the rewriting of the narrative by the New Right to recast abortion as inherently in tension with religion would have been much harder to accomplish.
As hard as it has fought, that is where the reproductive rights movement went wrong. Rather than interrogate states’ purported interest in fetal life by highlighting the racist, nativist history of restrictions on abortion and contraception and centering the lived experiences of those who still bear disproportionately the burden of such restrictions (all of which reproductive justice scholars have been writing about for decades), the reproductive rights movement has more or less allowed the other side to assume moral high ground.
So, what should we expect going forward? Legal scholars agree that the Court would not have taken the case were it not intent on dramatically curtailing the right to abortion recognized in Roe, if not overruling the decision altogether.
Some may be skeptical that the Court will use the magic word “overrule,” but all agree that the decision in Dobbs will represent a seismic change for the worse in the law relating to reproductive freedom. (And based on the oral argument today, it seems likely that there are at least five votes to OVERRULE Roe completely.)
Whether the Court “overrules” Roe and Casey or not, a ruling upholding the 15-week ban will leave so little protection for abortion rights that we will be right back to where we were prior to Roe, with a patchwork of inconsistent state laws, where the fundamental right to bodily autonomy of people who can become pregnant will depend on the state in which they live. Of course, the consequences of the decision will have implications for many other areas as well, not the least of which is LGBTQ rights.
Justice Kavanaugh had the audacity to suggest that a decision overturning Roe would be just like Brown v. Board of Education, which overturned Plessy v. Ferguson (as well as a number of other cases that overturned obviously harmful precedent). The difference of course, is that Brown and those other cases expanded individual rights rather than taking them away. What the Court is poised to do in Dobbs — which would take away long-established fundamental rights – truly is unprecedented.
A better question is the one Justice Sotomayor posed at the outset of the State’s argument:
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”
Time will tell, but so long as anti-abortion activists continue to control the narrative, I fear the stench won’t last long.
The good news is – this battle is far from over. The State of Mississippi is on the wrong side of history and this Supreme Court will not have the final word on this and many other issues. Legal Voice will continue to fight every single day in federal and state court (where we have had a string of major wins lately), in state legislatures, and in the court of public opinion. We stand with advocates across the country who will not rest until reproductive justice — not just the right to abortion — is a reality for all people.
What impact will the decision have on the PNW?
- It is extremely unlikely that the Court will hold that states cannot permit abortion. State law and/or the State Constitutions in WA, OR, AK and MT guarantee the right to abortion, so the decision in Dobbs should not affect those states except to the extent that they will have to absorb a significant number of patients from neighboring states like Idaho.
- The challenge in the PNW (from a litigation standpoint) will be defending against the expanded use of religious exemptions to undermine individual rights (by providers, insurers, pharmacies, employers, etc.)
- The other major challenge in the Northwest, as in all states, will be countering the campaign that the anti-abortion movement continues to wage in the court of public opinion.
What can people do now to help advocate for legal access to abortion care and reproductive justice.
- Become informed about reproductive justice – how restrictions on abortion and contraception are part of a larger system of reproductive oppression that has been used throughout history to maintain the white heteronormative patriarchal power structure;
- Help to elevate the voices of reproductive justice advocates and scholars by supporting the work of reproductive organizations;
- Support your local abortion funds;
- Become informed about the rise of Christian Nationalism;
- Push back against claims that supporting access to abortion is somehow intrinsically in conflict with religious values.
We understand that this moment in time is causing fear and anxiety. We encourage you to take care of yourself as well as you continue the fight for reproductive justice. In order for this movement to remain sustainable, we must practice partaking in rest and joy whenever we can. It’s the only way forward to a liberated world.
[1] Stewart, K., The Power Worshippers – Inside the Dangerous Rise of Religious Nationalism, ________.
