Never again say “Oh, that could never happen!” because“that” is exactly what just happened: the right to legal abortion has been overturned in the U.S. Despite the conventional wisdom among most pro-choice supporters and left-wing activists who have for many years dismissed the possibility of losing the right to abortion, the U.S. Supreme Court on June 24th, stacked with right-wing extremists, overturned the Court’s own 1973 Roe v Wade decision that made abortion a constitutional right.After five decades as the law of the land, young women and teens suddenly have fewer basic reproductive rights than their mothers and grandmothers did.

Widespread panic, chaos, and confusion

Within minutes after the Supreme Court decision, abortion rights began falling like flies in state after state,as Alabama, Arkansas, Kentucky, Louisiana, Missouri, Oklahoma, South Dakota, and Utah executed complete abortion bans—none of which provide exceptions for rape or incest. Besides the horrifying consequences for grown women forced to carry their rapist’s pregnancy to term, this means that child victims of rape and incest (as young as ten years old) will be forced to become mothers.

Widespread panic, chaos and confusion ensued in many other states across the country, which moved to begin implementing a variety of new laws, from complete abortion bans or abortion bans after 6 weeks(when most pregnancies aren’t yet known), and other severe restrictions—leaving desperate patients to frantically seek abortion providers.

The staff at one Tennessee clinic, Choices, raced against time to try and squeeze in as many patients as possible, expecting that a state law banning abortions at six weeks would take effect within days. The clinic’s phone lines were so jammed with distraught callers that the system crashed at one point, while clinic staff had to cancel many later procedures. After one caller was told that her appointment would be cancelled, she wept while saying, “I cannot have this baby. I already have four.”

Jennifer Pepper, the clinic’s CEO, told reporters, as reported by NBC News, “’Pregnancy is dangerous in this country. That danger just increased exponentially for whole communities of people,’ she said, listing Black and Brown women, women living in poverty, women who use drugs, single women and transgender people. ‘Our health care system is fundamentally broken, especially the system that cares for the most vulnerable among us.’” 

In the meantime, many clinics in states expected to ban abortions had already shut down before the Supreme Court’s decision. Abortion fundraising has reached a fever pitch, to try and help working-class and young women travel to states hundreds or thousands of miles away that still provide abortions. But abortion providers in states where it is still legal have become overwhelmed by the number of patients seeking abortions, causing long waiting lists and further distress for patients and clinic staff.

This state of panic is not confined to Southern states. Both Wisconsin and Michigan share a border on the north with Canada. Wisconsin still has an 1849 abortion ban in place. Although the state’s Democratic governor vowed not to enforce it (for now), many Wisconsin doctors stopped performing abortions immediately after the Supreme Court decision. The governor has since pledged to “grant clemency” to doctors charged under the law. Michigan has a 1931 law banning abortion, which the Democratic governor is challenging. Right after the Supreme Court ruling, Spectrum Healthcare, the largest healthcare provider in Michigan, announced that it would no longer perform abortions; it subsequently reversed its decision,stating that it will perform “medically necessary” abortions requiring hospital facilities. But it emphasized that it has not and will not perform ‘elective” abortions. This tumultuous situation has left many terrified about what will happen next.

Medication abortion and implications for criminalization in the digital age

Medication abortions currently account for more than half of all abortions in the U.S., according to a survey by the pro-choice Guttmacher Institute. It is a procedure that can be performed safely at home up until ten weeks of pregnancy, by telehealth calls with a medical provider. But 19 states have already made it illegal to receive abortion medication through the mail.

The prospect of the state criminalizing those seeking abortions in the age of the internet has led the major news outlet The Washington Post to run an article titled, “Seeking an abortion? Here’s how to avoid leaving a digital trail.” The article lays out the harsh new reality: “A Google search for a reproductive health clinic, online order for abortion pills, location ping at a doctor’s office and text message about considering ending a pregnancy could all become sources of evidence.”

Most people who end up being charged after self-aborting had told someone else—a doctor or a friend—who then reported them to law enforcement. Farah Diaz-Tello, senior counsel and legal director for a reproductive justice nonprofit, advises those seeking abortions where it is banned, “Limit who you tell in your own life as well, including friends or family,” noting that a miscarriage and a medication abortion present with the same symptoms at an emergency room and can result in criminal charges.

Doctors in Alabama (with the third-highest maternal mortality rate in the country) are already turning away patients who are actively miscarrying from emergency rooms and offices because they fear being arrested and/or prosecuted by law enforcement.

As of now, roughly half of the 50 states in the U.S. are expected to ban or severely restrict abortions in short order, while the longer-term future of abortion rights remains ominous. Donald Trump’s former vice president Mike Pence, widely expected to run for president in 2024, seized the opportunity to call for a (presumably) future Republican dominated Congress to pass a national ban on abortion: “Having been given this second chance for Life, we must not rest and must not relent until the sanctity of life is restored to the center of American law in every state in the land,” he said.

Samuel Alito’s misogynist opinion: Does this really close the case on abortion?

The Court’s decision, summarized in Alito’s majority opinion, must call into question the Supreme Court’s competence to decide the fate of the millions who face unwanted pregnancies now or will face them in the future. The majority decision twisted the facts to justify what can only be described as a right-wing political assault by the six-member majority in an unelected and unaccountable Supreme Court body of nine.

First, Alito’s opinion displayed his own deeply misogynist views. As Bess Levin described in Vanity Fair,

The opinion is an appalling, heinous attack on people who have relied on Roe for nearly half a century, and the most sickening part is that the conservative justice clearly doesn’t give a shit that obliterating the landmark ruling will ruin countless lives. In fact, one might argue, that’s all part of the plan. And if you needed further proof that Alito is pure evil and wants to take the U.S. back to a time when women’s bodies were property for men to control, know that one of the people he cited in his opinion was an English jurist who defended marital rape and had women executed for “witchcraft.”

Levin is referring to Sir Matthew Hale, an influential Seventeenth Century British judge and jurist quoted by Alito multiple times to justify overturning Roe v Wadein 2022. Hale is perhaps most famous for formulating what later became known as the “marital rape exemption”—making the case that a married woman cannot claim to have been raped by her husband even if the sex was nonconsensual. Hale wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.”

In other words, a married woman is legally the property of her husband and must submit to his every demand. Hale’s legal reasoning guided U.S. courts until the 1970s, when the women’s liberation movement forced a reconsideration of this patriarchal concept.

Hale was also responsible for sentencing three women to death for allegedly being witches, in 1658 and 1662. Hale’s role in sentencing two women to hang in 1662 provided a direct inspiration for the Salem Witch Trials in the U.S. in 1692.

Alito approvingly cites Hale’s opposition to abortion:“Two treatises by Sir Matthew Hale,” in which Hale “described abortion of a quick child who died in the womb as a ‘great crime’ and a ‘great misprision.’ See M. Hale, Pleas of the Crown,” writes Alito, as if the case is now closed on legal abortion.

Second, Alito also betrayed his profound ignorance of history, claiming that abortion has never been legal in the U.S. and that there has been“an unbroken tradition of prohibiting abortion on pain of criminal punishment [that] persisted from the earliest days of the common law until 1973.”

In reality, abortion and contraception were common around the world from ancient times until the modern era, mainly conducted by midwifes and other healers using herbs as abortifacients. As NBC News reported,

Even some prominent religious figures offered guidance to help women manage reproduction through drugs, including the 12th-century Catholic nun Hildegard von Bingen, who wrote medical texts describing how to prepare abortifacients. The 13th century physician Peter of Spain, who went on to become Pope John XXI, wrote a text for the poor describing drugs used for birth control and provoking menstruation — a common way to describe ending a pregnancy.

When the U.S. Constitution was adopted, abortion before “quickening”—when fetal movement can be detected inside the womb between four and five months—was legal in every state and was legal even after quickening in half of all states. Only in the early Nineteenth Century did laws and attitudes begin to change, as a Christian Evangelical movement swept the nation, and ministers began pushing for all abortions to be made illegal—along with blasphemy and selling alcohol.

The movement to ban abortion gained momentum when the American Medical Association, founded by (all male) medical doctors in the 1840sdeclared that human life begins at the moment of conception—partly as a way for doctors to take over the potentially lucrative role in childbirth then played by midwives.

The women’s suffrage movement launched in the mid-Nineteenth Century, demanding voting rights. The movement also called for “voluntary motherhood,” and although it opposed abortion it seemingly endorsed contraception, and the backlash against it led to support for laws that would keep women “in their place”in the home.By the end of the 1800s, virtually all abortions were banned in every state.

The right-wing minority has an ambitious agenda going forward

The anti-abortion movement is a minority in U.S. society. The Wall Street Journal released the results of its recent poll early in June, which showed more than two-thirds (68 percent) of respondents oppose overturning Roe v Wade, and 57 percent support the right to abortion for any reason at all. Only 30 percent supported overturning Roe. But the anti-abortion movement enjoys very wealthy backers and has friends in the upper echelons of the Republican Party. And perhaps most importantly, it has fought relentlessly over the last five decades to make abortion illegal again, with anti-abortion activists turning out in large numbers at every opportunity to state their case.

 Overturning Roe v Wade is the culmination of this decades-long, well-funded movement to make abortion illegal again. But U.S. society is not just going back to the pre-Roe era—it is starting a new era, in which the organized right wing, buoyed by its success on the abortion front, will embark on a crusade to strip all the oppressed of their basic civil rights.

The right to contraception, same sex intimacy, same sex marriage—and, yes, even interracial marriage—are all in its crosshairs. This right-wing minority yearns to return to what they view as the “good old days” of the 1950s, when Jim Crow racial segregation continued to flourish, women were told they should spend their days cooking, cleaning and selflessly caring for their husbands and children, and LGBTQ people were strictly confined to the closet. 

Alito, in the majority opinion, justified overturning Roe on the grounds that the U.S. Constitution’s Fourteenth Amendment, passed in 1868, did not explicitly call for the right to abortion. This is true; nor did the Fourteenth Amendment mention the right to interracial marriage, same sex marriage or LGBTQ rights, workers’ rights or any number of other rights that have since been won by mass movements through struggle. The Fourteenth Amendment merely spelled out, vaguely, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Which are the next targets?

The Court’s argument for the right to privacy, derived from the Fourteenth Amendment, has in recent decades been used to advance not only Roe but also other key civil rights rulings in the last six decades—specifically allowing contraception [Griswold, 1965], interracial marriage [Loving v. Virginia,1967], same sex intimacy [Lawrence v Texas, 2003] and same sex marriage [Obergefell v. Hodges, 2015].

Alito seemingly offered an assurance that overturning Roe would not spill over to overturn these other civil rights precedents, stressing,“[N]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”Justice Brett Kavanaugh, in his concurring opinion, also appeared to suggest that the Court’s ruling will not affect the standings of past rulings, including Loving, Obergefell, and Griswold. He wrote, “I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents and does not threaten or cast doubt on those precedents.”

But Kavanaugh also made very misleading statements during his Senate confirmation hearings in 2018, when he claimed to consider the Court’s 1973 Roe v Wade decision “important precedent of the Supreme Court that has been reaffirmed many times”—implying that he did not seek to overturn it.Let’s face it:he lied.

Supreme Court Justice Clarence Thomas (the longest-serving member of the Supreme Court) was far more candid, and he explicitly contradicted Alito in his concurring opinion:“In future cases, we should reconsider all of this Court’s substantive due process precedents,including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”

Thomas notably did not mention theCourt’sLoving v. Virginiadecision that established the right to interracial marriage, perhaps because he is a Black man married to a white woman. [Editor’s note: For the record, Justice Thomas’ wife, Virginia Thomas, is a long-standing right-wing activist who is now being investigated for her role in the Trump-inspired January 6, 2021, right-wing riot at the U.S. Capitol—and Justice Thomas’ shares her ideological views.]

But Thomas’ reasoning in his concurring opinion on overturning Roe can also easily apply to any other Supreme Court decision that is grounded in the right to privacy—the right to make the most personal of decisions—including interracial marriage. A podcast by the American Civil Liberties Union in March featured an interview with legal expert Michele Goodwin, a constitutional law professor at the University of California, Irvine. She argued that Thomas’ opinion served as a dog whistle to those who want to overturn a range of other civil rights. “The Supreme Court doesn’t have to engage itself with dismantling protections for interracial marriage. By sending the signal with Roe and by Justice Thomas undergirding that signal, it’s now left to the county clerks” to create new legal challenges that will eventually reach the Supreme Court.

The following excerpt from a March 2022 Indianapolis Star interview with Republican senator Mike Braunsshows him stating explicitly that the right to interracial marriage should be overturned, like Roe, at the national level and sent back to individual states to decide:

Question: So you would be OK with the Supreme Court leaving the question of interracial marriage to the states?

Answer: Yes, I think that that’s something that if you’re not wanting the Supreme Court to weigh in on issues like that, you’re not going to be able to have your cake and eat it too. I think that’s hypocritical.

Question: What about Griswold v. Connecticut?

Answer: You can list a whole host of issues. When it comes down to whatever they are, I’m going to say that they’re not going to all make you happy within a given state, but that we’re better off having states manifest their points of view rather than homogenizing it across the country as Roe v. Wade did.

Election choices: Republicans (the bourgeois party of hate) v Democrats (the bourgeois party of hypocrisy)

On June 24^th, former Democratic president Barack Obama, issued this response to the Court’s ruling overturning Roe, tweeting: “Today, the Supreme Court not only reversed nearly 50 years of precedent, it relegated the most intensely personal decision someone can make to the whims of politicians and ideologues—attacking the essential freedoms of millions of Americans.”

Obama’s statement reads as if he had nothing to do with our current dire situation. But many abortion rights supporters tweeted back—and as one correctly summarized, “Reminder that Obama ran on codifying Roe in 2008 and then abandoned it almost immediately, calling it ‘not my highest legislative priority,’ and opting, instead, to focus on a bailout for banks.”

Yes, President Obama had the opportunity to fulfill his own campaign promise to pass a “Freedom of Choice Act,” that would have codified legal abortion into nationwide law and prevented the current overturning of Roe. In 2009 and 2010, the Democratic Party not only occupied the White House, but also held a filibuster-proof supermajority in both houses of Congress.

Yet Obama did nothing. When asked why, he responded that codifying Roe was not his “highest priority”—as he was presumably too busy bailing out banks and other businesses that were deemed “too big to fail” by the U.S. ruling class during the onslaught of the Great Recession. Passing a Freedom of Choice Act would not have required much of Obama’s time—there would have been no legislative fight involved. But he decided not to do so.

For far too many decades, the mainstream pro-choice movement has relied on Democrats to protect the right to legal abortion, even as Democratic Party politicians from both the White House and Congress have consistently failed to fulfill their pro-choice campaign promises. The consequence is that abortion rights have been so eroded over the last decades—with restrictive waiting periods, parental notification and consent laws, laws criminalizing transporting a patient to another state to procure an abortion, and the Hyde Amendment banning federal funding for poor women’s abortions, reinstated each year by Congress since 1976—that there was little left to salvage.

And yet, after the Court overturned Roe, NARAL Pro-Choice America issued this disheartening statement, recycling a strategy that has failed for the last 40 years: “The Supreme Court made it clear: They are overturning Roe… This decision is the worst-case scenario, but it is not the end of this fight. The 8 in 10 Americans who support the legal right to abortion will not let this stand. There is an election in November, and extremist politicians will learn: when you come for our rights, we come for your seats.”

At this point, the Supreme Court decision overturning Roe has become mostly a fundraising plea from Democrats up for reelection in November. Within an hour after the Court overturned Roe, Democratic campaigns began emailing fundraising letters claiming, “Roe is on the ballot.”

Where do we go from here?

There is no denying that we face a dismal situation, in which many millions of pregnant people have been stripped of their reproductive rights, while the right wing is chomping at the bit to attack a host of other civil rights. A high stakes fight lies ahead, and no Democratic Party official has even claimed to be ready to lead it.

But the massive outpouring of anger in the days after the Court’s decision, when young people of all races and genders took to the streets by the hundreds, thousands, and tens of thousands all over the U.S.—not just in major cities but in hundreds of cities and towns—provides the only hope for the future. This is a generation that has known nothing but downward financial mobility, overwhelming student loans, mass school shootings, rampant police shootings of Black and Brown people, pandemic isolation, and a world in which war is a constant backdrop—and now the loss of basic reproductive rights.

And many of these new activists are not buying these age-old Democratic Party refrains. Pro-choice demonstrator Zoe Warren, for example, told MSNBC,“My rights should not be a fundraising point for them {Democrats] or a campaigning point…They have had multiple opportunities to codify Roe into law over the past 20, 30, 40, 50 years, and they haven’t done it. And if they’re going to keep campaigning on this point, they should actually do something about it.”

There is a long road ahead. But never say that we will never succeed. There is hope in the next generation of fighters.