On May 14th tens of thousands of people gathered in 400 demonstrations across the US in support of keeping abortion legal, calling “Bans Off Our Bodies.” We were responding to the May 2nd leak of a draft majority decision that the US Supreme Court will issue this summer. That decision will likely overturn the 50-year-old decision that made some abortions legal in all states.
In the US, states regulate abortion, but a majority of the nine justices of the Supreme Court of the United States (SCOTUS), appointed for life, will rule against abortion access. Donald Trump appointed four of these. A SCOTUS that included more liberal judges ruled in 1973 (Roe v. Wade) that abortion could not be banned in the first two trimesters of pregnancy, and based the ruling, in part, on the rights to liberty and privacy. The time limit was modified to “viability” of the fetus outside the womb by subsequent SCOTUS decisions.
While this ruling has been controversial, more than 60% of residents of the US, support maintaining the Roe decision. For various reasons, including fetal sentimentality, misogyny, and racism, states have been passing laws that impose greater restrictions on abortion to overturn Roe. The law Texas passed is the most outrageous. It outlaws abortion after 6 weeks (when many women are not yet aware they are pregnant) AND it empowers Texans to report for prosecution anyone who aids someone in seeking or obtaining an abortion anywhere after that time. Those who report can receive a $10,000 reward.
More than 1,100 restrictions on abortion have passed since 1973, requiring for example: waiting periods, parental permission, anti-abortion counseling, forced ultrasounds, restrictions on types of procedures, and hospital admitting privileges for doctors. These restrictions have severely reduced the availability of abortion services. There are states, such as Mississippi, with only one functioning clinic.
The case SCOTUS heard is an appeal of a law passed by the state of Mississippi which, if upheld, would outlaw abortions after fifteen weeks and would therefore overturn Roe. In the leaked draft, the majority decision upholds the Mississippi law. Thirteen states have already passed “trigger” laws banning abortion that will go into effect as soon as the decision is announced. More (but not all) states will pass similar laws.
So, we wait to see what the final decision, to be issued in June or July, will contain.
What’s in the draft decision and how is it reasoned?
The poorly reasoned draft, authored by Samuel Alito, argues that since abortion is not named in the 1789 Constitution, and not rooted in “history and tradition,” and not “implicit in the concept of ordered liberty”, no right to it is protected. Roe was argued on the basis of a constitutional amendment (14th) that guarantees rights not specifically mentioned in the Constitution. Since a claim to the right to abortion did not appear until the mid-20th century, and since from the 1860s to 1917 states criminalized all forms of abortion, Alito argues, Roe was wrongly decided, and the Mississippi law will be upheld. Obviously, this view raises questions: Whose liberty? Which order? Why must the interests of the patriarchs dominate?
Misogynist Eurocentric patriarchal thinking
To understand what women are up against and see where to spend our energies, it is necessary to look at Alito’s reasoning. First, he never mentions the history of women’s oppression and exclusion from the political sphere. From the time of the Constitution’s adoption in 1788 through the period when the first state laws prohibiting abortion passed and up until 1920, no women could vote or run for office. Women had no input into the drafting of abortion or any other laws. Under the imported British common law of coverture, non-enslaved women were either under the control of their fathers or their husbands and married women could not separately own property.
In a particularly twisted, misogynist legal interpretation, Alito argues that even though only people with certain female organs can get pregnant, the regulation of abortion “is not a sex-based classification” and that the ‘goal of preventing abortion’ is not a mere pretext designed to discriminate against women. Apparently, female-sexed bodies are merely coincidental to pregnancy and birth.
Alito’s argument also relies on Constitutional “originalism,” the peculiar belief that the Constitution must be interpreted from the position of the powdered-wigged, white, landed, mostly slave-owning men who wrote it. His logic assumes that their elevated minds were unaffected by the social realities of exploitation from which they profited. And he says that motives are an improper, risky area of speculation. Examination of the interests of men, settlers, plantation owners, corporations are irrelevant in determining what is just.
Alito argues that history and tradition “map the Nation’s concept of ‘ordered liberty.'” His appendix includes 30 pages of the old state anti-abortion laws. Whose order? That of the patriarchs whose ancient opinions must stand. His view treats the constitution as though it is a holy document and the thoughts of the authors as divinely inspired.
Feminist response: a Reproductive Justice approach
Most defenses of abortion in the US rely on legal rights and individual choice. But given the multiple constraints in which poor women, immigrants, and women of color live, this response is ill-founded. African American feminist, anti-racist theorist, Loretta Ross, outlines a multi-faceted and inclusive approach to reproductive issues called Reproductive Justice (RJ). Ms. Ross is a founding member of the African American SisterSong collective who developed it.
What does RJ include?
We need reproductive health care that focuses not only on appropriate service delivery, but also addresses the social determinants of health. Yes, we need reproductive rights, such as access to legal abortion and contraception, but we do not start and cannot stop there. RJ works to build a movement that focuses on all the linked human rights reproducing people require. It builds coalitions with indigenous rights, immigrant rights, workers’ rights, and Black Lives Matter movements. It focuses on better lives for women and girls and sustainable communities.
While we need rights not to have children, we also need birth justice: the right to midwifery, doulas, birth plans we design, and to refuse unnecessary Caesarians. We need to describe and
dismantle the structures of inequality within which pregnancy is experienced, that make both having and not having children problematic. We need the right to raise our children in safe environments, away from gun violence, polluted air and water, poorly funded schools, and racist policing.
RJ requires focusing on human interdependence rather than on separate individuals. It is not only about abortion being legal, but socially guaranteed access to all the appropriate resources we need. Mere legal access does not ensure that abortion services are nearby, affordable, and suitable for people from different cultures and classes, and with differing bodies and gendered identities. Abortion is not primarily a medical decision, and its parameters should not be prescribed (as is true in Roe) as though it is.
RJ critiques “choice. ” Choice disappears when we foreground the reproductive constraints imposed on Black women. My favorite sign at my local May 14th protest said, “Black Women Warned Us.” Black women slaves were first forced to breed and were raped by their enslavers and forced to leave their children unattended and to care for white children. Once “free,” they have been forcibly sterilized, forcibly implanted with contraceptives, denied public support for their children, had their erotic and family lives subject to state surveillance, and been forcibly separated from their children through racially targeted law enforcement and imprisonment.
“Choice” masks how laws, policies, and officials punish or reward reproductive activity of different women differently. Whose childbearing is protected and whose is stigmatized? For example, when can an immigrant person with no documents “choose” whether to go to a medical provider for pre-natal care? What sense does “choice” make when African American women disproportionately face infertility issues and can only afford to live in areas with high concentrations of pollutants? When abortions are 300 miles away and too expensive? When trans people are denied reproductive services?
Who gets offered or channeled into which services? Women of color have routinely been treated without their consent and have been overprescribed long-acting contraception.
Forced sterilization has also been routinely used on Native American, Mexican American, Puerto Rican, Asian-American, and disabled women. Women prisoners of color have been routinely sterilized, and in 2020, a nurse documented forced hysterectomies of Latinx immigrants imprisoned in US immigration detention facilities.
Is surrogacy a choice when it exploits poor women in a coercive scheme to earn money to meet their families’ needs? Reproductive justice requires that abortion and birthing and child-raising be designed with policies that do not further commodify human life. It asks, which strategies are human-centered and not market-based?
Current political context: Why the backlash against abortion?
Below are some reasons.
• Household hierarchies: Reaction to women’s limited but increasing power in the home because of paid work. For most women, working for pay is not a choice. In two-adult families, one salary will not support the household. Women therefore spend less time performing traditional services at home and are less devoted to childbearing.
• Manipulation of election district boundaries by partisan legislatures to favor right-wing candidates and weaken the voting power of more liberal people of color
• Manipulation of elections themselves, limiting when and where people can vote, forcing voters of color to stand in line for hours. In some districts handing a potential voter a bottle of water is a crime.
• Corporate oligarchs who control nearly all media have aligned themselves with the racist right. Corporate support for eliminating abortion is a recent shift. To sell their politicians to right-wing voters, corporations have banded together to draft legislation that protects their profits and reinscribes women as breeders.
• Racist replacement theory
White women should reproduce to maintain white dominance and white “culture” in Euro-descendant countries to prevent whites from becoming a minority. The May 14, 18-year-old white male mass shooter in New York cited the declining white birth rate as one motive. He expressed the “grand replacement” views of French anti- immigrant, anti-Semitic writer, Renaud Camus. Very popular right-wing talk show hosts discuss it endlessly.
• Whitewashed education
Billionaire-funded right-wing organizations and their Christian-right allies have successfully lobbied to pass laws that ban books that detail the US founding in slavery, settler colonial violence, and misogyny from classrooms in at least 14 states. Teachers who present the truth are fired. Educators point out that when schools do not address children’s questions about their country’s history and sociology, they will look elsewhere. For many that means right-wing media. Millions of boys, visit online chat rooms linked to multiplayer war games. White supremacists who lurk there provide racist accounts to fill the voids in children’s exposure. White men have also shot abortion providers and bombed abortion clinics. For these white terrorists, how do we characterize the form of militarism they embody?
• Erasing the lines between church and state. In the first years after Roe, very few churches worked to overturn it. That has changed. Extremely conservative Christian churches have expanded and openly advocate for right-wing candidates and against abortion.
Feminist anti-racist strategies
As the Reproductive Justice approach reminds us, we need to work for abortion, contraception and birthing and rights to family-supportive measures. We must turn around the trends outlined above. The following are necessary parts of that work.
We must work to redefine how legislative districts are redrawn and monitor election processes and vote counting. We must pass a law that Increases the number of justices on the Supreme Court. We must pass laws that go beyond the Constitution’s limited protections. To get abortion services to women, we must expand access to medication abortions, clandestinely where necessary, in states where they are illegal. We must reclaim the right to do our own low-tech abortions and teach others these skills, underground, if necessary, as did the Federation of Feminist Health Centers in the 70s and 80s.
In my article, “Abortion Politics in the US”, I mistakenly said that Trump appointed four of the US Supreme Court justices who joined Alito’s opinion overruling the constitutional right to abortion in the US. Trump actually appointed three. George W. Bush appointed the others who signed Alito’s draft and then the final opinion, which was issued on June 24th. My apologies for the error.