The right wing’s assault on reproductive rights gains disturbing momentum

Bob Sheak, Dec 23, 2021

bsheak983@gmail.com

Introduction

In a matter of months from now, the conservative-dominated Supreme Court seems ready to further restrict legal access to abortion or bring an end to such access.

Legal expert Marjorie Cohn points out, “For the first time in U.S. history, the Supreme Court is poised to take away a fundamental right from more than half of the people in the country. The Court’s December 1 oral arguments in Dobbs v. Jackson Women’s Health Organization [a Mississippi case] confirmed what progressives have feared since former President Donald Trump added three radical right-wingers to the court: The six conservatives on the high court are about to gut the fundamental right to abortion” (https://truthout.org/articles/for-the-first-time-supreme-court-is-poised-to-retract-a-fundamental-right).

Such a decision will have the greatest impact in “red” states where far-right Republicans control the capitols and statehouses. This anticipated court decision is only the most recent attack on the reproductive rights of women. Since the landmark court decision of Roe v. Wade in 1973, right-wing forces have supported and passed into law a bevy of restrictions designed to limit the right of female teenagers and women to abortion.

Elizabeth Nash refers to documentation of the last point, writing that “a staggering 1,300 restrictions enacted by states since the U.S. Supreme Court protected abortion rights in 1973 in its Roe v. Wade decision…. It’s an astounding number, although many of these laws were blocked in court, most of them are in effect today” (https://www.scientificamerican.com/article/abortion-rights-are-at-the-greatest-risk-since-roe-v-wade-was-decided-in-1972).

 In another article, Nash reports on a tally on abortion restrictions through the first 10 months of 2021 (https://guttmacher.org/article/2021/10/first-time-ever-us-states-enacted-more-100-abortion-restrictions-single-year).

“States have enacted 106 abortion restrictions so far in 2021, a year that has been marked by unprecedented threats to U.S. abortion rights and access. Not only is 106 the highest number of restrictions passed since Roe v. Wade was decided in 1973, but also this year is the first time that Guttmacher’s count of enacted restrictions has hit triple digits. Earlier this year, the number of restrictions had already surpassed the previous record of 89 restrictions set in 2011

Dana Greene Foster offers similar evidence and writes:

“Conservative statehouses have passed countless regulations, keeping abortion legal but rendering it all be inaccessible for many Americans who don’t have the resources to travel great distances to less restrictive states. Forty-three states ban abortions for most women after a certain point in their pregnancy. A third of states currently ban abortion at 20 weeks gestation. And in 2019, at least 17 states introduced legislation that would ban abortion at six weeks into pregnancy or even earlier” (The Turnaway Study, p. 2).

The Outcome?

How all this will play out depends in the final analysis on who controls the levers of power in government, that is, on politics and elections. Currently, the GOP, a largely pro-life party, is working in the states to suppress the vote of opponents, intensifying the gerrymandered arrangements in congressional districts, and changing the electoral rules to enable state legislatures to decide which votes to count or not. David Pepper, among others, documents these unabashed anti-democratic projects in his book, Laboratories of Democracy. The Republicans also benefit from a huge electoral base of support that has been galvanized, not created, by Trump, though it appears slavishly willing to follow his leads.  

Abortion is one of the “cultural” issues that invigorates the radical-right base of Trump and the Republican Party, along with other right-wing constituencies, including those who hold an absolutist position on gun rights, Christian nationalists, white supremacists, build-the-wall anti-immigration proponents, “big lie” fanatics, fascists of various stripes, anti-vaxers, and the tens of millions who have been swayed on such issues by right-wing media disinformation and lies.

Some variation within the Political Parties

At the same time, research from the Pew Research Center indicates that positions on abortion do not track perfectly with political party identification. Jeff Diament of the Center reports that “three-in-ten or more Democrats and Republicans don’t agree with their party on abortion” (https://pewresearch.org/fact-tanks/2020/06/18/three-in-ten-or-more-democrats-and-republicans-dont-agree-with-their-party-on-abortion). However, there is a stark partisan divide. Here’s what the Pew research uncovered.

“Most Republicans and their leaners say abortion should be illegal (62%) in all or most cases, with a larger share saying it should be illegal in most cases (45%) than in all cases (17%). Republicans who live in the Northeast and those who identify as moderate or liberal are less likely than other Republicans to say abortion should be illegal in all cases.

“Democrats, for their part, are more unified in support of legal abortion than Republicans are against it, with 82% of Democrats saying abortion should be legal all or most of the time. But Democrats are roughly split on whether it should be legal in all cases (40%) or most cases (42%). Democrats who live in the South, those who are ages 65 and older, and those who identify as conservative or moderate are less likely than other Democrats to say abortion should be legal in all cases.”

The harms of overturning Roe

Withal, if the Supreme Court votes to severely curtail or ban abortion, there will be massive and detrimental effects. Becky Sullivan reports for National Public Radio that 12 states would thenautomatically ban or curtail abortion, including Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas and Utah. Additionally, there are nine states which still have abortion bans on the books that were enacted before Roe was decided in 1973 and that would immediately take effect if the Court bans the law.

The potential consequences are immense, according to Sullivan. Abortions in these 21 states would then “be illegal or next to impossible to access,”  affecting “a combined population of more than 135 million people — a major change from today’s environment, where all 50 states have at least one operating abortion clinic” (https://npr.org/2021/12/02/1061015753/abortion-roe-v-wade-trigger-laws-mississippi-jacksons-womens-health-organization).

The organization of this post

To put the abortion access issue into context, I next review background information, including a summary of the 1973 Roe v. Wade decision, evidence on who gets abortions, and evidence on the often-harmful effects of not having access to legal abortions. Following that, I identify the evidence on the escalating assault on abortion access. And finally, in concluding thoughts, I refer to ideas on how abortion access may be kept a lawful option for women (and teenagers), at least in some states.

Background

Roe v. Wade (1973)

Here’s a summary from Wikipedia of the U.S. Supreme Court’s 1973 decision to legalize abortion as a constitutional right (https://en.wikipedia.org/wiki/Roe_v._Wade).

“Roe v. Wade, 410 U.S. 113 (1973),[1] was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction. It struck down many U.S. federal and state abortion laws,[2][3] and fueled an already ongoing national debate in the United States about whether and to what extent abortion should be legal, who should decide the legality of abortion, what methods the Supreme Court should use in constitutional adjudication, and what the role of religious and moral views in the political sphere should be. Roe v. Wade reshaped American politics, dividing much of the United States into abortion rights and anti-abortion movements, while activating grassroots movements on both sides.

“The decision involved the case of Norma McCorvey—known in her lawsuit under the pseudonym ‘Jane Roe’—who in 1969 became pregnant with her third child. McCorvey wanted an abortion, but she lived in Texas, where abortion was illegal except when necessary to save the mother’s life. She was referred to lawyers Sarah Weddington and Linda Coffee, who filed a lawsuit on her behalf in U.S. federal court against her local district attorneyHenry Wade, alleging that Texas’s abortion laws were unconstitutional. A three-judge panel of the U.S. District Court for the Northern District of Texas heard the case and ruled in her favor. Texas then appealed this ruling directly to the U.S. Supreme Court.

“In January 1973, the Supreme Court issued a 7–2 decision ruling that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides a ‘right to privacy’ that protects a pregnant woman’s right to choose whether or not to have an abortion. But it also ruled that this right is not absolute, and must be balanced against the government’s interests in protecting women’s health and protecting prenatal life.[4][5] The Court resolved this balancing test by tying state regulation of abortion to the three trimesters of pregnancy: during the first trimester, governments could not prohibit abortions at all; during the second trimester, governments could require reasonable health regulations; during the third trimester, abortions could be prohibited entirely so long as the laws contained exceptions for cases when they were necessary to save the life or health of the mother.[5] The Court classified the right to choose to have an abortion as ‘fundamental’, which required courts to evaluate challenged abortion laws under the ‘strict scrutiny’ standard, the highest level of judicial review in the United States.[6]

“Roe was criticized by some in the legal community,[7] and some have called the decision a form of judicial activism.[8] The Supreme Court revisited and modified Roe‘s legal rulings in its 1992 decision Planned Parenthood v. Casey.[9] In Casey, the Court reaffirmed Roe‘s holding that a woman’s right to choose to have an abortion is constitutionally protected, but abandoned Roe‘s trimester framework in favor of a standard based on fetal viability and overruled Roe‘s requirement that government regulations on abortion be reviewed under the strict scrutiny standard.[4][10]

Who gets abortions?

Margot Sanger-KatzClaire Cain Miller and Quoctrung Bui address this question (https://nytimes.com/interactive/2021/12/14/upshot/who-gets-abortions-in-america.html). Here’s how they introduce their report.

“The portrait of abortion in the United States has changed with society. Today, abortions among teenagers are far less frequent, and abortion patients are most likely to already be mothers. Although there’s a lot of debate over gestational cutoffs, nearly half of abortions happen in the first six weeks of pregnancy, and nearly all in the first trimester.

“The typical patient, in addition to having children, is poor; is unmarried and in her late 20s; has some college education; and is very early in pregnancy. But in the reproductive lives of women (and transgender and nonbinary people who can become pregnant) across America, abortion is not uncommon. The latest estimate, from the Guttmacher Institute, a reproductive health research group that supports abortion rights, found that 25 percent of women will have an abortion by the end of their childbearing years.

“‘There isn’t one monolith demographic who get abortions,’ said Ushma Upadhyay of the Bixby Center for Global Reproductive Health at the University of California, San Francisco. ‘The same people who become pregnant and give birth are the same people who have abortions at different points in their lives.’”

The harmful effects of not having access to abortion

I turn again to Elizabeth Nash, who presents a concise overview of the evidence (https://www.scientificamerican.com/article/abortion-rights-are-at-the-greatest-risk-since-roe-v-wade-was-decided-in-1972).

“A significant body of scientific literature shows that the adverse consequences of withholding abortion care are serious and long-lasting. Forcing someone who wants an abortion to continue a pregnancy requires them, against their wishes, to accept the great risks of pregnancy- and labor-related complications, which include preeclampsia, infections and death. And these risks fall much heavier on some communities than others. The U.S. has the highest maternal mortality rate among developed countries, with dramatic but preventable racial inequities caused by systemic racism and provider bias. Black and Indigenous women’s maternal mortality rates are two to three times higher than the rate for white women and four to five times higher among older age groups.”

Nash continues:

“The risks of serious consequences do not end with a safe delivery. The Turnaway Study by researchers at the University of California, San Francisco, found that denying wanted abortion care can have adverse effects on women’s health, safety and economic well-being. For example, among women who had been violently attacked by an intimate partner, being forced to carry an unwanted pregnancy to term tended to delay separation from that partner, leading to ongoing violence. In addition, compared with women who got the abortion they sought, those who did not obtain a wanted abortion had four times greater odds of subsequently living in poverty. They also had three times greater odds of being unemployed and were less likely to be able to have the financial resources for basic needs such as food and housing.”

She additionally makes the point that restrictive policies have the greatest impacts in “hostile states [that] are clustered together, such as [in] the South, the Great Plains and the Midwest,” as well as on “people who are already struggling to get by or who are marginalized from timely, affordable, high-quality health care—such as those with low incomes, people of color, young people, LGBTQ individuals and people in many rural communities. Any further rollback of abortion rights would once again affect these populations disproportionately.”

The escalating assault against the legal access to abortions

#1 – Trump’s impact

On appointments to the Supreme Court and federal judiciary

Elizabeth Nash again sums it up well (https://www.scientificamerican.com/article/abortion-rights-are-at-the-greatest-risk-since-roe-v-wade-was-decided-in-1972).

“The Supreme Court that former president Donald Trump shaped, possibly for decades to come, by appointing conservatives handpicked by abortion rights opponents, is thus poised to deliver a potentially severe blow. Conservative state policy makers clearly feel emboldened by the 6–3 majority of justices opposed to abortion rights and a federal judiciary transformed by Trump’s more than 200 appointments

Playing to the anti-abortion movement

Trump had the chance to bellow support for an anti-abortion position at a March for Life rally in January 2020. Caroline Kelly reports on the event for CNN (https://www.cnn.com/2020/01/24/politics/trump-march-for-life/index.html). She writes”

“President Donald Trump on Friday reiterated his support for tighter abortion restrictions, pledging at the annual March for Life rally in Washington that ‘unborn children have never had a stronger defender in the White House.’”

Kelly continues:

“Trump, making history as the first President to attend the event since it began nearly a half-century ago, looked to strengthen his ties to a key coalition of his political base, which he’ll need as he seeks reelection this year. He used his remarks to not only express support for the movement but to paint those supportive of looser abortion laws as radicals, often employing language that mischaracterized the views of most Democrats.


“‘Together we are the voice for the voiceless. When it comes to Democrats — and you know this — you’ve seen what’s happened. Democrats have embraced the most radical and extreme positions taken and seen in this country for years and decades and you can even say for centuries,’ Trump said. ‘Nearly every top Democrat in Congress now support taxpayer-funded abortion all the way up until the moment of birth.’”

Curtailing government support for contraception services

Anna North reports on actions taken by Trump to overturn relevant provisions of Obama’s Affordable Care Act dealing with contraception (https://publicintegrity.org/politics/system-failure/the-trump-administrations-war-on-birth-control).

The ACA was supposed to work to ensure “widespread access to a variety of contraceptive methods, including the most reliable, like IUDs and contraceptive implants.” North continues: “And for a while, it looked like it was working. Thanks in part to the mandate that employers offer insurance covering contraception, the use of these methods rose around the U.S., more than quadrupling between 2002 and 2017. Meanwhile, the median out-of-pocket cost for birth control among insured patients fell to $0 after the ACA was passed, with 91.5 percent of IUD recipients getting the device at no charge.”

But then, in Trump’s first year in office, “federal agencies weakened the ACA’s contraceptive mandate, allowing employers to deny birth control coverage if they had a religious or moral objection. Though the rollback was quickly tied up in the courts, dozens of employers signed separate settlements with the administration allowing them to refuse to cover birth control.

“Meanwhile, the Trump administration took aim at other federal programs designed to promote reproductive health and access to birth control, including Title X, which funds services like contraceptive counseling and cervical cancer screenings for low-income Americans. The result was that, when COVID-19 hit, the country’s safety net was already weakened, with shuttered clinics and reduced hours making it harder to provide the low-cost care that Americans — many of them facing layoffs and loss of health insurance — needed more than ever.

“Then, in the midst of the pandemic, the Supreme Court dealt another blow to birth control access: The justices upheld the administration’s rollback of the ACA contraceptive mandate in July, a ruling that could mean the loss of contraceptive coverage for 126,000 American workers.”

Trump’s anti-abortion position has global effects

Michele Goodwin reminds us in her book, Policing the Womb, that within days of entering the White House in 2017, Trump “reinstated the notorious global gag rule.” She continues: “This law disqualifies foreign NGOs from receiving U.S. family planning aid if they engage in any abortion-related activity. Essentially, to qualify for U.S. aid, NGOs that serve desperate, poor women abroad are prohibited from mentioning the word ‘abortion’ even in cases of rape and incest – hence the ‘gag rule.’ Mr. Trump has proposed a similar law affecting women and medical clinics in the United States” (p. 220).

#2 – The anti-abortion movement

With respect to the grassroots anti-abortion movement, Mary Ziegler and Robert L. Tsai point out, “Much like the civil-rights activists of the past, abortion foes have pursued a long-term strategy that stretches far outside the courts. It depends on grassroots political change as well as legal challenges, and on the tidal push-and-pull of between politics and the law at the highest levels” (https://politico.com/news/magazine/2021/06/13/anti-abortion-progressive-roe-v-wade-supreme-court-492506).

The movement has had encouragement from Republican politicians at all levels of government, an increasingly reactionary Supreme Court decades of restrictive state laws. The movement has been encouraged by some parts of the Catholic Church, at times even segments of the medical community. Mary Ziegler offers an authoritative account of such influences in her book, Abortion and the Law in America: Roe v. Wade to the Present.

#3 – The role of the rich and powerful in advancing an anti-abortion agenda

The rich and powerful have played a role in fostering opposition to abortion.

Alex Kotch reports for the Center for Media and Democracy on October 4th, 2021, on the influence of the American Legislative Exchange Council (ALEC) (https://exposedbycmd.org/2021/10/04/alec-leaders-boast-about-anti-abortion-anti-trans-bills).

Kotch writes that ALEC is “a pay-to-play network of conservative state lawmakers and business lobbyists that writes model legislation…” which is distributed to state legislators around the country. Videos obtained by the Center for Media and Democracy (CMD) document that at the “40th anniversary meeting of the Council for National Policy (CNP) in May, ALEC leaders boasted about their extensive efforts to advance state legislation to severely restrict access to abortion and limit the rights of trans students, as well as voter suppression bills.”

“CNP is a secretive network of far-right Christian political figures and donors that works behind the scenes to influence Washington.” Kotch points out that Mississippi Speaker of the House Phillip Gunn and Utah State Senate President J. Stuart Adams…discussed their anti-abortion efforts. Adams is the current national chairman of ALEC, and Gunn was the most recent chairman. Adams and Gunn are both former ALEC chairs of their states.”

At the CNP gathering, “Arkansas State Sen. Jason Rapert (R), also an ALEC member, encouraged people to support the pay-to-play organization and described how the group has supported spin-off networks to directly deal with policies that ALEC purports not to work on.” Kotch quotes Rapert.

“‘There’s a lot of great peer legislative organizations, and as you know we formed an entity that is specifically addressing the election integrity issues, the pro-life issues, as well as the other, you might say, hot-button issues,’ said Rapert.

“We created the National Association of Christian Lawmakers [NACL], which is basically ALEC from a Biblical worldview,” he continued. “And so it allows us to deal with those issues that [Nelson] said is not the direct mission [of ALEC].”

“The group adopted a ‘Model State Heartbeat Act’ in July that bans abortion at the time of a detectable ‘fetal heartbeat,’ or roughly six weeks after a woman’s last menstrual cycle.” However, Kotch notes, “The term is ‘medically inaccurate,’ however, because at that stage, an embryo does not have a developed heart, and the ‘beat’ is actually electrical impulses. The sound one hears is generated by the ultrasound machine. The bill also uses the term ‘unborn child’ to refer to an ‘embryo’ beginning at fertilization.”

#4 – The Supreme Court postpones a ruling on an extreme Texas anti-abortion law

Roni Caryn Rabin reports in the New York Times, that the Texas law bans most abortions after about six weeks of pregnancy, disregarding “the 1973 Supreme Court decision that established a constitutional right to the procedure, making the state the most restrictive in the nation in terms of access to abortion services” (https://nytimes.com/2021/12/09/health/texas-abortion-law-facts.html).

Following action by the Republican-controlled legislature, Texas Governor Greg Abbott signed the new abortion restriction into law on May 19, 2021. The Texas law, the Texas Heartbeat Act, S.B. 8, bans abortions after six weeks of pregnancy. This cut off rule is 18 weeks less than the standard set by Roe v. Wade.

After months of suits and counter-suits on the law, the U.S. Supreme Court ruled, in a 5 to 4 decision, on December 8, 2021, that a lawsuit challenging the constitutionality of the new Texas abortion ban can proceed, but the Supreme Court allowed the Texas law to remain in effect during that challenge. A final decision by the Court will not be made for months.

Kevin Breuninger and Dan Mangan comment on the Texas law for CNBC (https://www.cnbc.com/2021/12/10/supreme-court-issues-opinion-on-texas-abortion-law-challenges.html). They point out that the law “has effectively put a stop to most abortions in that state by empowering private citizens to sue, for at least $10,000, anyone who ‘aids or abets’ an abortion after the detection of a fetal heartbeat, usually around six weeks or so into gestation.” At the same time, women who obtain abortions cannot be sued. The law allows abortions in cases where there are medical emergencies, “but none for pregnancies resulting from rape or incest.” It “explicitly excludes state officials from enforcing the law, which was designed to avoid having those officials named as defendants in challenges to the ban before it was ever used against a provider” (avoiding lengthy law suits that would delay implementation of the ban).

“The Supreme Court’s majority opinion Friday was written by Justice Neil Gorsuch, a conservative appointed to the Supreme Court by former President Donald Trump. Chief Justice John Roberts, another conservative, in a partial dissent joined by the liberal justices Stephen Breyer, Elena Kagan and Sonia Sotomayor, said the Texas law “has had the effect of denying the exercise of what we have held is a right protected under the Federal Constitution.”

While the law remains in place, Texan women seeking an abortion will have “to travel an average 20 times farther to reach the nearest abortion provider” (https://www.scientificamerican.com/article/abortion-rights-are-at-the-greatest-risk-since-roe-v-wade-was-decided-in-1972).

The ACLU (American Civil Liberties Union) of Texas, one of the plaintiffs in the suit, offers an analysis of the abortion ban law, including the following statements (https://aclutx.org/en/press-releases/supreme-court-refuses-block-texas-abortion-ban-greenlights-bounty-hunting-scheme).

“SB 8 bans abortion after about six weeks of pregnancy — before many people even know they’re pregnant — and creates a bounty-hunting scheme that encourages the general public to bring costly and harassing lawsuits against anyone who they believe has violated the ban. Anyone who successfully sues an abortion provider, a health center worker, or any person who helps someone access an abortion after six weeks in Texas will be rewarded with at least $10,000, to be paid by the person sued.  Lawsuits may be filed against a broad range of people, including: a physician who provides an abortion; a person who drives their friend to obtain an abortion; abortion funds providing financial assistance to patients; health center staff; and even a member of the clergy who assists an abortion patient” 

J. David Goodman points out that the Texas law “effectively deputizes ordinary citizens – including those from outside Texas – allowing them to sue those who violate the law. It awards them at least $10,000 per illegal abortion if they are successful. Patients cannot be sued, but doctors, staff and even a patient’s Uber driver could become a defendant” (https://nytimes.com/2021/12/09/us/texas-abortion-law-unconstitutional.html).

This aspect of the law of the law has been challenged by state district court judge in Texas who ruled on Thursday, Dec. 9, that “the unique enforcement scheme of a restrictive abortion law violated the State Constitution by allowing any private citizen to sue abortion providers or others accused of breaking the law.” The judge, David Peoples, wrote a 48-page opinion arguing that it is unconstitutional to “grant

standing to those who were not injured, denied due process and represented an ‘unlawful delegation of enforcement power to a private person.’” It remains to be seen whether this argument will influence the right-wing justices on the Supreme Court, that is, once they finally consider the case. 

In the meantime, the law remains in effect and will make legal abortions virtually impossible to obtain in Texas. Adriana Piñon, policy counsel and senior staff attorney at the ACLU of Texas responded to the abortion ban as follows: 

“A dark cloud hangs over the U.S. Constitution and the state of Texas today as the Supreme Court once again allowed extremist lawmakers to continue imposing their ideologies onto Texans’ private health care decisions. We are particularly devastated by the implications of this ruling for Black Texans, who account for a shocking 31% of maternal deaths, and the broader fight for reproductive justice in our Black and Brown communities. Despite this heartbreaking ruling, we will continue to fight this unconstitutional law through our work in the courts, at the state and federal legislatures, and most importantly, in our local communities.” 

#5 – A note on Ohio’s reactionary anti-abortion law 

Mychael Schnell documents this point, noting that Ohio lawmakers introduced an abortion bill on November 3, 2021, that goes further than even the Texas law (https://thehill.com/homenews/state-watch/579944-ohio-lawmakers-introduce-abortion-bill-that-goes-further-than-texas-law).

It “calls for a total ban on abortions in the state, reaching farther than the Texas ‘heartbeat’ law that is currently under examination by the Supreme Court.” There are no exclusions for rape or incest. The bill, the 2363 Act, “seeks to ban all abortions in Ohio and, like the Texas law, empowers ‘any person’ to bring civil action against an individual who performs and abortion or ‘knowingly engages in conduct that aids or abets the performance or inducement of an abortion.’ Furthermore, Schnell points out, “Individuals who filed such lawsuits will be permitted to ask for $10,000 or more, according to Cleveland.com.”

Ohio Rep. Jena Powell (R) introduced the bill positing that it is about protecting life. She said,  

“The sanctity of human life, born and preborn, must be preserved in Ohio. The 2363 Act is about protecting our fundamental, constitutional right to be born and live. Abortion kills children, scars families, and harms women. We can and must do better.”

There was opposition from Democratic representatives, but they are in the minority, with only 35 representatives out of 100 in the Ohio State House. Schnell reports:

“Ohio House Minority Leader Emilia Sykes (D) slammed the bill, calling it ‘an egregious assault on women, a dangerous attack on healthcare rights and an embarrassment for our state,’ adding that ‘Ohio Republicans want to control women, but we won’t be silent.’” According to Sykes,

“Criminalizing care will disproportionately impact women of color, nonbinary people and those already at a disadvantage in our health and criminal justice system. …Once again, Republicans are showing that the everyday needs of Ohioans are less important than scoring political points, likes and retweets.”

According to Schnell, “Lauren Blauvelt-Copelin, the vice president of government affairs and public advocacy at Planned Parenthood Advocates of Ohio, said ‘lawmakers and anti-abortion vigilantes have no business making personal medical decisions for their neighbors.

“Ohio has once again proved it is one of the most extreme states for abortion access. This bill goes further than Texas Senate Bill 8, the most extreme abortion ban in the country, and would ban all abortions. It allows anyone — including anti-abortion protesters who have no connection to the patient — to act as paid bounty hunters and take doctors, health centers, and anyone who helps another person access abortion to court and get no less than $10,000. Banning abortion would be catastrophic to communities across Ohio,” she added in a statement.”

#6 – The Supreme Court agrees to hear a Mississippi law severely curtailing if not banning legal abortions

Elizabeth Nash points out that the Supreme Court announced that it would hear oral arguments on a Mississippi law—currently blocked from going into effect—that would ban abortion after 15 weeks of pregnancy. The news alarmed legal experts and supporters of abortion rights alike, with good reason” (https://www.scientificamerican.com/article/abortion-rights-are-at-the-greatest-risk-since-roe-v-wade-was-decided-in-1972). Nash continues:

“If eventually supported by the Supreme Court, it would overthrow a ‘central tenet of Roe and subsequent Supreme Court decisions has been that states cannot ban abortion before viability, generally pegged at about 24 to 26 weeks of pregnancy. By taking a case that so clearly violates almost 50 years of precedent, the court signaled its willingness to upend long-established constitutional protections for access to abortion. As the legal experts at the Center for Reproductive Rights put it, ‘The court cannot uphold this law in Mississippi without overturning Roe’s core holding.’ And in fact, Mississippi followed up in July [2021] with a brief asking the justices to explicitly overturn that historic decision.”

Fighting back

Exposing the flimsy position advanced by the Court’s majority

Marjorie Cohn, professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the bureau of the International Association of Democratic Lawyers and the advisory board of Veterans for Peace, addresses the issue in an Dec. 3, 2021, article on Truthout

(https://truthout.org/articles/for-the-first-time-supreme-court-is-poised-to-retract-a-fundamental-right).

On the cusp of outlawing the right of a woman to choose abortion

Cohn points out that, in the Mississippi case of Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court “the Supreme Court is poised to take away a fundamental right from more than half of the people in the country.

“… Justices” Clarence Thomas, Samuel Alito, Brett Kavanaugh, Amy Coney Barrett and Neil Gorsuch appear ready to do just that. And while Chief Justice John Roberts may not be prepared to squarely overturn Roe and Casey, he signaled his readiness to uphold the Mississippi law that outlaws abortions after 15 weeks of pregnancy, essentially gutting the right of women to choose abortion.”

The substance of the Mississippi case

Cohn continues: “Mississippi passed the Gestational Age Act in 2018. It outlaws nearly all abortions after 15 weeks of pregnancy, well before viability. The law contains exceptions for medical emergencies and cases of ‘severe fetal abnormality,’ but makes no exception for rape or incest. A federal district court and the Fifth Circuit U.S. Court of Appeals blocked Mississippi from enforcing the law because it squarely conflicts with Roe and Casey. Mississippi petitioned the Supreme Court for review, and it agreed to hear the case.”

“Although not specifically mentioned in the Constitution, the Supreme Court in Roe and Casey grounded the right to abortion in the liberty section of the due process clause of the 14th Amendment, which,” which Cohn points out, “says states shall not ‘deprive any person of life, liberty, or property, without due process of law.’” She elaborates: “In 1973, Roe v. Wade held that abortion was a ‘fundamental right’ for a woman’s ‘life and future’ and states could not ban abortion until the fetus is viable (able to survive outside the womb), which is around 23 weeks of pregnancy. The Supreme Court reaffirmed the ‘essential holding’ of Roe in the 1992 case of Planned Parenthood v. Casey and said states could only enact restrictions on abortion that do not impose an ‘undue burden’ on the right to a pre-viability abortion.”

“If this court renounces the liberty interest recognized in Roe [v. Wade] and reaffirmed in [Planned Parenthood v.] Casey, it would be an unprecedented contraction of individual rights and a stark departure from principles of stare decisis [duty to follow precedent],” U.S. Solicitor General Elizabeth Prelogar told the Supreme Court.

The façade of neutrality

“The six conservative members of the Supreme Court cloaked their intentions to curtail the right to abortion in neutral-sounding language. But their rationalizations for ending or limiting the right of women to control their own bodies were ‘disingenuous,’” Cohn observes. Cohn considers the rationalizations of the justices for their decision to hear the Mississippi case and how they were disputed in the hearing, as follows.

——————-

“[Justice] Kavanaugh said the Court shouldn’t “pick sides” but instead remain “scrupulously neutral on the question of abortion, neither pro-choice nor pro-life.” He asked Prelogar why the Supreme Court shouldn’t leave the decision on whether and when to allow abortion to Congress, the state legislatures and state supreme courts.” She responded:

“Because the court correctly recognized that this is a fundamental right of women, and the nature of fundamental rights is that it’s not left up to state legislatures to decide whether to honor them or not.”

“Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law, agrees, saying that the ‘protection of fundamental rights should not be left to legislatures,’ and that ‘[f]or almost a century the Supreme Court has held that personal ‘liberty’ is safeguarded by the Constitution, leading in time to the constitutional right to privacy and reproductive autonomy.”

“Julie Rikelman, attorney for Jackson Women’s Health Organization (the only remaining clinic that provides abortions in Mississippi), told the Supreme Court, ‘Casey and Roe were correct. For a state to take control of a woman’s body and demand that she go through pregnancy and childbirth with all the physical risks and life-altering consequences that brings is a fundamental deprivation of her liberty.’”

“He [Kavanaugh] justified his apparent intent to overrule Roe and Casey by listing cases in which the Supreme Court had overruled its prior decisions. They involved racial segregation, voting rights, criminal legal rights, the rights of same-sex couples, etc. Most of the cases resulted in the court ‘recognizing and overturning state control over issues that we said belong to individuals,’ Sonia Sotomayor retorted.”

“[Justice] Barrett callously stated that outlawing abortion wouldn’t harm women because they could simply carry a pregnancy to term and then put the baby up for adoption. She cited ‘safe haven laws’ in which people can anonymously leave their newborn in a safe place. Jackson Women’s Health attorney Rikelman replied, ‘We don’t just focus on the burdens of parenting, and neither did Roe and Casey. Instead, pregnancy itself is unique. It imposes unique physical demands and risks on women and, in fact, has impact on all of their lives, on their ability to care for other children, other family members, on their ability to work.” Rikelman also noted that, ‘It’s 75 times more dangerous to give birth in Mississippi than it is to have a pre-viability abortion.’”

“When [Justice] Gorsuch questioned the workability of the undue burden standard, Rikelman said that ‘the undue burden test is not at issue in this case. That is the test that applies to regulations, not prohibitions. And the state has conceded that this is a prohibition.’”

“Gorsuch asked about applying the undue burden standard before viability. Rikelman replied that undue burden without viability is tantamount to overturning Roe and Casey ‘because the viability line is the central holding of those cases.’”

“[Chief Justice] Roberts tried to couch his position as pro-choice, saying that women in Mississippi could still choose to have an abortion until the 15th week of pregnancy. ‘If you think that the issue is one of choice, that women should have a choice to terminate their pregnancy, that supposes that there is a point at which they’ve had the fair choice, opportunity to choose, and why would 15 weeks be an inappropriate line?’ Roberts asked. ‘Because viability, it seems to me, doesn’t have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?’”

“Plaintiff attorney Rickelman responded, ‘Without viability, there will be no stopping point.’ Solicitor General Prelogar warned that ‘immediately states with six-week bans, eight-week bans, 10-week bans, and so on, would seek to enforce those with no continued guidance of what the scope of the liberty interest is going forward.’”

“Roe and Casey are ‘part of the fabric of women’s existence in this country,’ [Justice] Elena Kagan declared. Rikelman said that one in four women have had an abortion.

“‘The right of a woman to choose, the right to control her own body, has been clearly set since Casey and never challenged,’ [Justice] Sotomayor said. ‘You want us to reject that line of viability and adopt something different.’ She noted that 15 justices from differing political backgrounds have affirmed the viability cutoff since 1992.

“It’s 75 times more dangerous to give birth in Mississippi than it is to have a pre-viability abortion.”

“Sotomayor nailed it when she asked Mississippi lawyer Stewart, ‘How is your interest anything but a religious view?’ — referring to the debate over when life begins. [Justice] Alito didn’t pull any punches when he asked Rikelman, ‘The fetus has an interest in having a life, and that doesn’t change, does it, from the point before viability to the point after viability?’ Rikelman said that the viability cutoff ‘makes sense because it focuses on the fetus’s ability to survive separately, which is an appropriate legal line because it’s objectively verifiable and doesn’t delve into philosophical questions about when life begins.’”

“[Justice] Thomas seemed most interested in expanding the criminal liability of women for fetal endangerment to the period before viability.

“[Justice] Stephen Breyer quoted from Casey: ‘To overrule under fire in the absence of the most compelling reason to re-examine a watershed decision would subvert the court’s legitimacy beyond any serious question.’ Sotomayor concurred, inquiring,

“Will this institution survive the stench this creates in the public perception that the Constitution and its reading are just political acts?.… If people actually believe that it’s all political, how will the court survive?”

“On September 1, the right-wingers signaled their intention to gut Roe and Casey by allowing Texas’s Senate Bill 8 (which outlaws abortion after six weeks of pregnancy) to go into effect with no briefing, argument or consideration by the lower courts. Only Roberts, mindful of the legitimacy of the Roberts court, voted to halt the Texas law at the preliminary stage. SB 8 remains in effect and it has prevented most abortion-seeking people in Texas from securing abortions.

“If Roe and Casey are overturned, abortion would become illegal or severely restricted in about half the states, according to the Guttmacher Institute. Poor people and people of color, who cannot afford to travel to a state where abortion is legal, would be most strongly affected.

“‘There was a big movement for legalizing abortion before the [Roe] decision. I think people forget that,” Eleanor Smeal, president of the Feminist Majority Foundation, told The Guardian. ‘We talk about back-alley abortion but [women] were dying.’ Hospitals closed ‘septic abortion’ wards, where many poor and working-class people had died from infection and injury after desperate efforts to end pregnancies.

“If the Supreme Court retracts the right to abortion,” Cohn argues, “other rights not specifically enumerated in the Constitution are also in jeopardy, including the rights to contraception, homosexual conduct and same-sex marriage.

“The Supreme Court will issue its decision by the end of June 2022, a little over four months before the midterm elections. A ruling that guts Roe and Casey will likely motivate voters, 75 percent of whom told a Washington Post/ABC News poll that abortion decisions should be ‘left to the woman and her doctor’ and not ‘regulated by law.’”

———————

The Court’s partisanship further revealed

Ruth Marcus writes in the Washington Post that the U.S. Constitution is not “neutral’ on abortion, rather it is a right, a position challenged by the Mississippi and Texas laws (https://washingtonpost.com/opinions/2021/12/07/supreme-court-abortion-rights-constitution).

Marcus points to a partisan inconsistency is the court’s rulings. On one hand,

“They’re happy to second-guess the decisions of elected officials and public health experts about how best to safeguard their communities in the midst of a pandemic when religious institutions claim their rights are being violated. They don’t flinch at saying that the core First Amendment protection for political speech places strict limits on Congress’s ability to limit corporate spending on elections or enact other campaign finance rules.” On the other hand, on the issue of abortion, the “conservative” members of the Court say there is no right or protection for those who want an abortion because it is not mentioned in the Constitution.”

“There are any number of rights,” Marcus notes, “that the court has long found fall within the bounds of constitutional protection even though they are not specifically mentioned in the text. The right to travel. The right of parents to educate their children as they choose. The right to contraception. The right to private sexual conduct. The right to marry a person of another race. The right to marry a person of the same gender.”

All of these rights are justified by “the intentionally broad phrases of the 14th Amendment’s protections against the deprivation of ‘liberty’ without due process of law.”  Marcus adds: “‘The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific’ guarantees elsewhere provided in the Constitution,’ Justice John Harlan, no liberal, explained in a 1961 dissent, from an early case involving access to contraception.”

Women lose control over their bodies

The upshot of Marcus’ concerns about the Court’s likely decision to restrict or overturn Roe in coming months based on the presumption that the Constitution is “neutral,” is “another way of saying that women enjoy no protection, no liberty to decide what to do with their own bodies — or, more precisely, only so much protection as the state where they live chose to grant them.” And in 21 or more states, access to abortions would then be greatly restricted or banned. Such an outcome would not be “neutral,” but a decision that favors “conservative” religious beliefs that the alleged interests of the embryo/fetus take precedence over the reproductive decisions of women.”  

Equal Protection is ignored – wealthy women can always obtain an abortion

In a column for the Columbus Dispatch on November 8, 2021, Richard L. Wittenberg makes the following points on how the “equal protection” clause of the 14th Amendment to the U.S. Constitution legitimates state protection to the access of abortion (https://dispatch.com/story/opinion/columns/guest/2021/11/08/roe-v-wade-should-not-be-overturned/8528456002).

Wittenberg cites the amendment:

 “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.” 

He points out, “The outlawing of abortion rights, which overturning Roe v. Wade would mean, would disproportionately affect the health and lives of women of modest means. Simply stated, such a decision would not be ‘…the equal protection of the laws.’” And adds that access to the abortion option is a public health issue, writing: “Legal abortions are very safe. As Erica Sackin, Director of Communications for the Planned Parenthood Federation stated, ‘Abortion is health care, and it is one of the safest medical procedures there is.’”

Examples of those who are fighting back against the right-wing assault on women’s right to have access to legal abortions and what more must be done

Elizabeth Nash presents cogent examples of what must be done (https://www.scientificamerican.com/article/abortion-rights-are-at-the-greatest-risk-since-roe-v-wade-was-decided-in-1972).

She writes in her June 23, 2021 article for Scientific American that “there are lots of ways to fight back.” She makes the following points.

  • “States supportive of abortion, primarily in the West and the Northeast, must step up to protect and expand abortion rights and access—both for the sake of their own residents and for others who might need to travel across state lines to seek services.”
  • There are currently bills in Congress that, if ever passed, would strengthen access to the abortion option, including “the Women’s Health Protection Act, which would essentially repeal many state-level restrictions and gestational bans.”
  • “Another bill that needs support is the EACH Act; it would repeal the harmful Hyde Amendment, which bars the use of federal funds to pay for abortion except in a few rare circumstances, and allow abortion coverage under Medicaid.”
  • “There are also tireless advocates and volunteers, including managers of abortion funds in many states, who already assist abortion patients in paying for and accessing care. No doubt these vital efforts will increase dramatically if more states move to ban all or most abortions.
  • “As federal protections for abortion are being challenged, people may go other routes to get an abortion. Abortion-inducing medication, whether under the management of a clinician in person or via telehealth or self-managed, is a safe and effective method, and many have been able to get such pills through the mail during the COVID pandemic. But here, too, barriers loom large. More state legislatures are looking to join the 19 that already ban abortion via telehealth. And just this year states started to enact bans on sending abortion-inducing pills through the mail.”
  • “Abortion is health care, plain and simple. There were more than 860,000 abortions in the U.S. in 2017, and at current rates almost one in four women will have an abortion by age 45. Supporters of abortion rights have to hope for the best and prepare for the worst. Most of all, we must stay in this fight until every person who needs an abortion is able to get safe, affordable and timely care.”

Sen. Elizabeth Warren proposes the need to expand the Supreme Court to Counter ‘Powerful Threat to Our Democracy’

Andrea Germanos reports on December 15, 2021 for Common Dreams on Sen. Warren of Massachusetts’ view that it is “time for everyone to recognize that we can have a functioning democracy or we can have the current extremist-dominated court, but we can’t have both” (https://commondreams.org/news/2-21/12/15/warren-says-expand-supreme-court-counter-powerful-threat-our-democracy). Germanos further reports on what Warren said in making her proposal.

“Making her case for why Congress should exercise its constitutional authority to change the size of the court, Warren said Sen. Minority Leader Mitch McConnell (R-Ky.) ‘hijacked’ the court, referring to his 2016 ‘theft’ of the seat President Barack Obama sought to fill with Merrick Garland and his 2020 move ‘breaking his own ‘rule’ barring votes on justices in an election year’ when he rammed through right-wing Justice Amy ConeyBarrett’s confirmation.”

“‘This Republican court-packing has undermined the legitimacy of every action the current court takes,’ she said, and the court itself ‘leans into extremism and partisanship.’” Furthermore, Warren states: “Conservative justices’ recent decisions and their apparent appetite to overturn decades of precedent underscore one important truth. This court’s lawlessness is a powerful threat to our democracy and our country.”

Warren’s proposal, co-sponsored with Sen. Ed Markey’s (D-Mass), is titled Judiciary Act of 2021S.1141, “which would add four seats, creating a 13-justice Supreme Court.” Germanos continues: “The Senate bill has one other co-sponsor—Democratic Sen. Tina Smith of Minnesota—while a companion measure in the House has 45 co-sponsors.”

Concluding thoughts

America is under a number of internally generated threats to democracy. The anti-abortion movement is one of them. In this case, the threat stems from an anti-abortion movement that has used court challenges, protests, civil disobedience, and violence to overturn Roe v. Wade. It is advanced as well by the Republican Party, Trump, the majority of its Party’s electoral base, segments of the rich and corporate communities, conservative religious groups, and right-wing media.  

In the final analysis, the defense of the reproductive rights of women to obtain a legal abortion faces strong political headwinds. It is one of the highly partisan political battles that will determine whether America’s women will have reasonable control over their reproductive decisions or not. Normally, the outcome would rest on which side can most effectively educate and mobilize supporters and get them to act and vote. However, Republicans are doing their best to create electoral rules that will nullify the votes of the opposition.

So, in the final analysis, the battle over reproductive rights is tied up not only with legal arguments over the Constitution but also with the relative political power of the two major parties.

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