Abortion rights on the chopping block in the U.S.

On May 2^nd, when the news outlet Politico published a leaked draft of the U.S. Supreme Court’s upcoming decision that overturns the Court’s 1973 Roe v Wade ruling that legalized abortion, a collective gasp for air was heard around the nation. Even those of us who have witnessed the steady erosion of abortion rights over more than four decades and knew that overturning Roe was likely, the shock of reading the draft decision nevertheless felt like a punch to the stomach.

The key tenet of Roe v Wade allowed the right to legal abortion for any reason until “fetal viability” at about 24 weeks of pregnancy, when the fetus would be able to survive outside the womb. The draft decision on Dobbs v. Jackson Women’s Health Organization, written by ultra-conservative Justice Samuel Alito, upholds a 2018 Mississippi law that bans abortions after 15 weeks of pregnancy—long before fetal viability—and does not include exceptions in cases of rape or incest.

The Supreme Court majority in this vote includes, besides Alito, four other Republican-appointed justices: Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. This conservative majority appears eager to overturn the entire legal framework for Roe after five decades as the law of the land—meaning that, even at the earliest stages of gestation, the fetus’s rights supersede those of the pregnant person, whether they are carrying the fetus willingly or not.

The essence of this decision is likely to remain when the Court officially issues its ruling in late June or early July. At that time, all U.S. women will be stripped of even the minimum right to control their own bodies; all pregnant people will be subjected to the policing and vengeful punishment by government authorities enforcing increasingly repressive laws. Twenty-six states already have “trigger laws” that will immediately ban most abortions as soon as Roe is overturned. The result is nothing short of a catastrophe for women, since a majority live in these twenty-six states, and more states are likely to follow.

The consequences, as always, will be most brutal for those who are young and poor or working class—which includes a disproportionate number of Black and Brown women—who do not have the financial means or the ability to take the time off work to travel far away to a state that still allows abortions.

Ignoring the pro-choice majority

An overwhelming majority of the U.S. population opposes rather than supports overturning Roe.A Washington Post-ABC News poll conducted in late April showed that Americans say Roe v. Wade should be upheld rather than overturned by a roughly 2-to-1 margin.

Yet a handful of unelected right-wing extremists who now hold a majority on the Supreme Court appears prepared to slam the door on this overwhelmingly pro-choice majority of the population.

Indeed, Alito’s draft decision is contemptuous—almost mocking—in tone and words, erasing the notion that women suffer oppression in U.S. society. Alito makes clear that he is unfazed by the pro-choice majority in the U.S. population, declaring, “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.”

Alito bluntly states that Roe’s “viability” distinction between fetuses not capable of living outside the womb and those which can, “makes no sense.” He does not explain why, leaving the reader to wonder whether Alito considers the embryo a “human life” at the moment of conception.He also describes doctors and nurses who terminate pregnancies as “abortionists”—a derogatory term often used by anti-abortion activist opponents.

Roe’s reasoning was “exceptionally weak” and “with damaging consequences,” according to Alito—adding, “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” because it is not mentioned in the U.S. Constitution. Yes, the Constitution only elaborates on the “right to bear arms.” Many of the Constitution’s authors were slaveholders. The Constitution also makes no mention of women’s rights, LGBTQ rights, the rights of Black people, the right to contraception or any number of other rights that are recognized in modern society. Does that mean these rights should not exist today?

Perhaps most egregiously, Alito’s draft ruling rejects the notion that banning abortion is a result of women’s oppressed status. He says, “Women are not without electoral or political power. The percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.” Are we to take this to mean that women’s higher rate of voting gives them more “power” than men?

Finally, Alito seems to try to address those who worry that overturning the right to legal abortion on the grounds he has laid out will lead to other attacks on the rights of LGBTQ people or even the right to contraception. He writes, “We emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

But nothing could be further from the truth, as will be shown below.

The U.S.: A democracy in name only

The U.S. Supreme Court is touted as one key element of our political system’s “checks and balances,” which ostensibly keep any one of the three branches of government—legislative, executive, and judicial—from exercising too much power. But the entire system is utterly dysfunctional, and its claim to be a democracy is fictional. One need look no further than Donald Trump’s reactionary and reckless presidency, the Republican Party’s obstructionist role in Congress, or the Supreme Court’s function in legitimizing extreme inequality to understand that these three branches of government are complementary wings of the same ruling class—whose main purpose is to provide a façade of democracy.They bicker among themselves, to be sure. But they share the same primal loyalty to preserving their common class interests.

The legitimacy of the Supreme Court as an institution—justices who are appointed for life, with no accountability for the consequences of their decisions, however deadly—must be called into question in a society that still calls itself “the greatest democracy in the world.” The Court’s own history long ago disproved its claim to stand “above” the rest of society, aiming only to interpret the aims of the U.S. Constitution without regard to which direction the political winds are blowing at any given time.

Two historical examples should suffice (although these are only two among many): the Court’s role in upholding slavery before the Civil Warand its responsibility for upholding Jim Crow segregation for six decades in the twentieth century.

Beginning in 1846, Dred Scott and his wife Harriet Scott, both slaves, sued for their freedom from slavery, in a case which reached the Supreme Court in 1856. In its Dred Scott v. Sandford decision in 1857, the Court ruled that all people of African descent, free or enslaved, were not United States citizens and therefore had no right to sue in federal court. In addition, the Court wrote that the Fifth Amendment protected slave owner rights because enslaved workers were their legal property.

The Court’s rulings on segregation first upheld racial segregation in Plessy v. Ferguson in 1896—making Jim Crow segregation legal, but then struck it down in its Brown v. Board of Education ruling in 1954, when a powerful Civil Rights movement began to emerge.

Now the Supreme Court plans to overturn Roe v Wade. It six-member conservative majority includes five justices who were appointed by Republican Party presidents who lost the popular vote in the general election but won the presidency due to the undemocratic character of the Electoral College, which determines winners and losers in elections. Both George W. Bush and Donald Trump lost the popular vote but went on to assume the presidency. The U.S. Supreme Court provided the key ruling that propelled Bush into presidential office. Trump needed no such help from the Court despite the fact that Hillary Clinton bested Trump by nearly three million votes.

This highlights once again the undemocratic nature of the U.S. Electoral College, which ignores the popular vote on a national level but allows a “winner take all” procedure within most individual states, of which there are 50. On two occasions in the last 22 years, this arrangement allowed these two Republican presidents to take office without winning the popular vote.

The far-reaching damage of overturning Roe

Although Alito’s draft decision claims that the Supreme Court’s ruling on Dobbs v. Jackson Women’s Health Organization will have no impact on overturning other social justice legal precedents, this is difficult to believe. After all, both Brett Kavanaugh and Neil Gorsuch claimed, before their nominations were approved in Congress, that they considered Roe to be “settled law.” This has been proven to be an outright lie.

If the Supreme Court does overturn Roe, it will establish a legal precedent that will legitimate overturning other long-standing and major Supreme Court decisions.This means that everything from access to contraception, access to abortion pills from the internet to same-sex marriage and other LGBTQ protections, and even interracial marriage could be on the chopping block. Keep in mind that just weeks after Texas governor Greg Abbott signed the state’s six-week abortion ban into law, he signed another law banning doctors from prescribing abortion pills after the seventh week of pregnancy.

This is no exaggeration. As Jesse Wegman argued in the New York Times, “Be afraid for what’s coming next in terms of personal autonomy and liberty, for LGBTQ protections and the right to contraception, yes. But be equally afraid for the abstraction of an independent and principled judiciary. No matter what happens next, that’s already lost.”

Likewise, Jesse Mermell argued at WBUR, “A 2021 research study predicted that abortion bans would lead to a 21% increase in pregnancy-related deaths. All of these detrimental public health outcomes will disproportionately impact people of color and other people already facing inequities.” She continued,

Abortion rights are just the beginning. Brace yourself, the worst is yet to come. The leaked draft — penned by Justice Samuel Alito — previews some of the interconnected rights that conservative extremists are also targeting, by criticizing the landmark Obergefell v Hodges decision that brought marriage equality to all Americans. Mere weeks ago, Republican Sen. Mike Braun opined that interracial marriage should once again be left to the states. Multiple Republican politicians have clearly stated an opposition to birth control — birth control! — as part of their platforms. Anti-abortion advocates and their GOP allies in Congress are rallying around legislation that would place a federal ban on abortion. And all of this comes in the midst of a coordinated effort, also by the GOP and conservatives on the Court, to attack voting rights, making it more difficult for Americans to express their point of view at the ballot box. Before you say “that will never happen” or “you’re being hysterical,” don’t. Because that’s what everyone said about the Supreme Court taking a sledgehammer to Roe — and here we are.

There is another serious consequence besides forcing women and other pregnant people to carry an unwanted pregnancy to term: a rise in maternal mortality. There is a direct connection between abortion restrictions and pregnancy-related deaths.

The U.S. already has the highest rate of maternal death among the world’s wealthy nations. This is largely because states that deny abortion rights tend to also limit prenatal care by reducing funding for the clinics (like Planned Parenthood) that offer accessible and affordable prenatal care for women.

As Time magazine recently reported, “[F]rom 1995 to 2017, the maternal mortality rate increased most significantly in states that enacted the most restrictive abortion laws. In 2017, states that restricted abortion had a maternal death rate (28.5 maternal deaths per 100,000 live births) that was nearly double (15.7 maternal deaths per 100,000 live births) those that had passed laws protecting access to abortion.”

What way forward?

Most commentary from the left on the leak on the Supreme Court draft decision has rightly raised alarms about this enormous step backward on this most essential reproductive right, documenting the scope of this attack on women’s right to control their own bodies. Unfortunately, though, most of these commentaries point to the “solution” as voting Democrat in the November elections for Congress.

There are many reasons why this strategy is short-sighted. Most importantly, relying on Democratic Party politicians is what has landed us in this desperate position, as they have overseen more and more restrictions on abortion rights over a period of decades. President Jimmy Carter declared, “Life is unfair,” when supporting the first Hyde Amendment that denied federal funding for poor women’s abortions through Medicaid in 1976—an amendment which has since been approved by every sitting president, Democrat or Republican, and members of congress until 2021.

Democratic presidential candidates including Bill Clinton, Barak Obama and Joe Biden all promised to codify the right to choose abortion in the form of a Freedom of Choice Act while on the campaign trail, but no such legislation has yet materialized. Obama promised that passing a Freedom of Choice Act would be his first act upon taking office, but he declared that this was not his “highest priority” after his election and never took action while the Democrats had a majority in Congress during his first two years in office, which would have ensured easy passage.

While running for the presidency In 2008, Hillary Clinton agreed with a questioner that Americans on both sides of the abortion issue should work together to try to reduce the number of abortions to zero. Clinton reiterated that she thought abortion should be “safe,legal and rare, and by rare, I mean rare.”

There are also plenty of reasons to blame the largest and most mainstream women’s rights organizations for their unflinching reliance on Democratic Party politicians who have failed to actively support abortion rights over a period of decades. This failed strategy led us to this desperate point. And now we must consider whether the reproductive justice movement should move beyond it.

Molly Shah from the Real News Network, noting that the anti-choice movement has been enthusiastically organizing for decades while the pro-choice movement has been moribund, made the following prediction:

The Supreme Court is on the verge of overturning Roe v. Wade. And yet, there is currently no cohesive national campaign from either the Democratic party or large reproductive rights organizations to fight back…

The Democratic Party has not had any substantial response to the recent attacks on Roe. Their statements and brief denouncements of these egregious abortion bans and restrictions have been toothless and weak, hardly even mentioning abortion services the majority of the time…

The anti-abortion movement has been mobilizing for decades in the hopes of achieving the kind of outcome that the Supreme Court is poised to hand them in the next few weeks in the Mississippi case Dobbs v. Jackson’s Women’s Health Organization… Democrats have rarely been proactive in expanding abortion rights—and have often been ineffective and incompetent at stopping these attacks…

“The Democratic Party has not had any substantial response to the recent attacks on Roe. Their statements and brief denouncements of these egregious abortion bans and restrictions have been toothless and weak, hardly even mentioning abortion services the majority of the time.”

“Most Congressional Dems and those in the White House struggle to even say the word ‘abortion,’ much less champion the urgent need for expanding access and enacting federal protections,” said Hayley McMahon, a public health researcher who focuses on the structural determinants of abortion access. “Many continue to use stigmatizing talking points that have been provided to them by the mainstream reproductive rights organizations.”

Large reproductive rights organizations such as Planned Parenthood, the National Abortion Rights Action League (NARAL), the National Abortion Federation (NAF), the Guttmacher Institute, and the National Organization for Women (NOW) have traditionally had close ties with the Democratic establishment and have raised hundreds of millions of dollars over the past two decades, while abortion access has steadily been eroded throughout the country. A large percentage of this money has come from many of the same wealthy, white donors who comprise the largest donors to Democratic politicians who campaign on abortion rights. Activists often feel that the needs of these donors are elevated while the material needs of people seeking abortions are ignored.

Where do we go from here?

Why is the right to abortion in the U.S. now on the chopping block when the right to legal abortion is on the rise in Latin America–including Argentina and Mexico? The answer is simple. Just as abortion rights have been won in Latin America through massive women’s movements, abortion rights in the U.S. were won because the women’s liberation movement of the late 1960s and early 1970s made this a key part of its demands—along with equal pay and subsidized childcare—as part of a working-class women’s movement.

But the mainstream U.S. feminist movement today is so tied to Democratic Party politicians that it is incapable of leading the struggle for women’s liberation forward, precisely because the Democrats are so invested in the political status quo that they are not interested in fighting for reproductive justice—especially in an election year. This is the reason why no mainstream pro-choice organization has yet called for a national demonstration for abortion rights since Joe Biden’s election, despite the urgent need to do so—and the enormous potential for a massive turnout.

The only way forward is a rising movement that is no longer beholden to Democrats, who have failed, time and again, to defend abortion rights.