Tag Archives: Roe v. Wade

What’s Next?

I recently had a disquieting political discussion during an otherwise lovely lunch with my youngest son.

It probably won’t shock readers of this blog to learn that our children and grandchildren are pretty political…and I’m happy to report that they all have developed what I consider to be excellent values. The differences arise from our views of America’s probable future. One son has already moved to the Netherlands, a granddaughter lives in northern England, and this son–our youngest–expects that America’s descent into autocracy and White Supremacy will prompt his children to eventually relocate as well.

Our discussion wasn’t exactly an argument, but we had very different predictions about the likely political fallout when–not if, since we agreed it will happen– the Supreme Court eviscerates or overrules Roe v. Wade. I opined that their “victory” will lead to a reduction in the passion of the pro-fetal-life movement, and energize women who have previously felt protected by Roe. My son disagreed–he sees the anti-choice zealots taking their fervor to state legislatures and–thanks to gerrymandering–tightening their red state control.

I should mention that this son is a lawyer, and a very good one. He knows how to frame and present a convincing argument….Needless to say, I left lunch depressed.

A few days after that conversation, I was a guest on a podcast called Who Gets What–the brainchild of two longtime friends, Morton Marcus and John Guy. After the recording stopped, Morton and I were talking, and he made an observation that I found both fascinating and relevant to the consequences of a reversal of Roe v. Wade.

Morton said he’d been looking for a truly objective, scholarly analysis of the multiple ways in which women’s “liberation”–the growth/emergence of women’s participation in all the “nooks and crannies” of society–has changed that society. As he noted, there’s been a lot written about the subject, but it’s mostly advocacy (pro and con), or focused on relatively small parts of the bigger picture. He’d found no analysis encompassing the truly monumental social changes triggered by the steady expansion of women’s participation in all parts of our society.

Morton’s observation is accurate, at least so far as I can tell–I’m unaware of any scholarship that addresses the entirety of the immense social changes that have occurred as a result of women’s emancipation from the confines of “barefoot and pregnant.”

However one defines the “women’s movement,” however, its power depends on reliable birth control.

Yes, we can look to history and find examples of powerful women; we can point to the suffrage movement and similar efforts to assert or enlarge women’s rights–but real change, I submit, came only with the ability of women to control our reproduction. Only then could we enter fully into workplaces (most of which no longer required brute strength), an entry that gave us another form of choice: the economic means to leave unsatisfactory marriages, or to renegotiate the terms of more agreeable ones.

There’s a reason the people who want to return the U.S. to the social structures of the 1950s are so focused on controlling women’s reproduction. (It isn’t just abortion; if you don’t believe birth control is next, I refer you to the Hobby Lobby case…)

The future of American democracy may well depend upon the extent to which American women understand the far broader implications of a loss of control over their reproductive lives. Yes, there are compelling medical, economic and psychological reasons to allow women to exercise the self-determination men take for granted. Yes, the arguments advanced by pro-fetal-life activists are inaccurate gaslighting. But if women lose control over their bodily integrity, they won’t just lose the momentum that has been building toward their full participation in American society, they’ll do a U turn.

Women’s equality will lose considerable–critical– ground.

I think that–deep down, if not consciously–activists on both sides of the issue understand that this fight is really between continuing inclusion of half the population in the life of the nation, or a return to some version of male social dominance. The question is whether the majority of non-activist women understand the actual nature of the debate, care about continuing their progress toward equal civic participation, and are sufficiently motivated to protect the hard-won improvements in women’s prospects and status.

What happens next–whether my son’s predictions or my own hopes prove accurate–ultimately depends on the answer to that question–and upon who wins those statehouses.

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The Court

The newly engineered Supreme Court will soon decide two abortion-rights cases: Texas’ empowerment of “pro-life” vigilantes, and a more threatening case from Mississippi that was argued this week.

When I describe today’s Court as “engineered,” I am referring to the brazenly unethical behavior of Mitch McConnell, who ensured the appointment of far-right Associate Justice Amy Coney Barrett. Barrett, of course, joined five other conservative Justices, and probably guaranteed that Roe will be overturned or eviscerated.

What then?

According to the Guttmacher Institute,  extrapolating from 2014 statistics, one in four (24%) American women has had an abortion by age 45, despite the considerable barriers to the procedure that have been erected in some half of U.S. states. Fifty-nine percent of them were obtained by patients who had previously had at least one child, and 51% had been using a contraceptive method in the month they became pregnant.

As the country fractures and the Supreme Court drifts farther from any observable understanding of the environment within which it issues its decisions, I’m reminded of a column by Linda Greenhouse, in which she considered the legacy and evolution of Sandra Day O’Connor, the first woman to sit on the country’s highest court. Among other things, Greenhouse noted the deep friendship between O’Connor and Justice Stephen Breyer.

From the outside, it seemed an unlikely pairing, two people from opposing political parties with such different backgrounds, public personas and career paths. But they shared a deep concern about the practical effect of the court’s decisions.

When it comes to reproductive rights, those “practical effects” are likely to be dire. A recent study published in the Annals of Internal Medicine found that–in addition to financial and emotional problems–women who had been denied abortions experienced long-term health problems.

There’s a good deal of research that shows, in the short term, having an abortion is much safer than childbirth, but there isn’t much research over the long-term,” says study co-author Lauren Ralph, an assistant professor of obstetrics, gynecology and reproductive sciences at the University of California, San Francisco. “Our study demonstrates that having an abortion is not detrimental to women’s health, but being denied access to a wanted one likely is.”

According to the study, women who were denied abortions “consistently” faced worse health outcomes than those who weren’t. “The findings were consistent with a raft of other studies highlighting some of the most serious consequences women face when government restricts women’s access to abortion.

It isn’t only women who face adverse consequences from that denial.

The discourse around abortion tends to focus on women and generally fails to consider how being denied an abortion affects the children a pregnant woman already has and those she may have in the future. The research is clear: Restricting access to abortion doesn’t just harm women — it harms their children as well…Our study shows that denying a woman a wanted abortion has a negative impact on her life and the lives of her children.

A University of Colorado study found that banning abortion nationwide would lead to a 21% increase in the number of pregnancy-related deaths overall and a 33% increase among Black women.

None of these consequences bother the zealots who are “pro fetal life.” (They certainly aren’t “pro” the life and health of women–or concerned about the wellbeing of children once they’re born.) They are willing to ignore two undeniable facts: (1) as the American College of Obstetricians and Gynecologists insists, access to abortion is an important part of women’s health care; and (2) outlawing the procedure will not end abortions. It will simply end medically safe abortions for women who cannot afford to travel to states where the procedure is legal.

Beyond those “practical effects” is the undeniable message that is sent when government intrudes on intimate moral decisions properly left to individual citizens. As Michelle Goldberg recently wrote,

As the feminist Ellen Willis once put it, the central question in the abortion debate is not whether a fetus is a person, but whether a woman is. People, in our society, generally do not have their bodies appropriated by the state.

I realize that none of the documented practical effects of gutting Roe v. Wade will persuade the minority of Americans who think they have the right to impose their religious (or misogynist) beliefs on the clear majority that doesn’t share them, or the politicians who continue to use the issue to motivate their voters (while not-infrequently pressuring their mistresses to abort accidental pregnancies).

I do wonder, however: what will a “victory” for pro-fetal-life activists mean politically? How many of the substantial number of women who have had abortions–and the partners and family members who helped them make that decision– will respond by becoming the new “single-issue” voters?

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Be Careful What You Wish For…

Texas, in an excess of zeal to control women’s reproductive choices, has enacted a bill–which, at this writing, has gone into effect–that would essentially undermine America’s understanding of the rule of law.

I’ve posted previously about the analysis of that measure by Constitutional Law professors Laurence H. Tribe and Stephen I. Vladeck.

Not only has Texas banned virtually all abortions after the sixth week of pregnancy, a point at which many women do not even know they’re pregnant, it has also provided for enforcement of that ban by private citizens. If you suspect that a Texan is seeking to obtain an abortion after the sixth week of pregnancy, not only will you be able to sue the provider to try to stop it, but if you succeed, you’ll also be entitled to compensation. (And what’s known as the litigation privilege would likely protect you from a defamation claim even if you’re wrong.) The law, known as S.B. 8, effectively enlists the citizenry to act as an anti-abortion Stasi.

As they point out, enlisting private citizens to enforce the law is intended to avoid challenges to the bill’s constitutionality. The theory is that, since the state itself will not be directly involved in enforcing the law (unlike under “private attorney general” statutes, only private citizens can bring these suits), state’s officials will not be proper defendants to a lawsuit. What far too many Americans do not understand about their protections under the Bill of Rights is the requirement of state action–the Bill of Rights protects us against government infringement of our liberties–not against intrusions by private actors.

No state action, no constitutional violation.

Allowing this gambit to succeed would do much more than leave the most restrictive anti-abortion law in the country in place; it would encourage other states to employ similar tactics–and not just for abortion, but for all sorts of culture war issues. Per Tribe and Vladeck,

California could shift to private enforcement of its gun control regulations, never mind the Second Amendment implications of such restrictions. Vermont could shift to private enforcement of its environmental regulations, never mind the federal pre-emption implications. And the list goes on.

This ploy shouldn’t pass constitutional muster. I wholeheartedly agree with the professors’ citation of a 1948 case involving racially-restrictive deed covenants, in which the Court found state action present because private deed restrictions could only be enforced with the participation of judges, clerks and other state officials.

The vigilantes authorized by this legislation may be private citizens, but the law can’t be enforced without involving the apparatus of the state.

If successful, this effort would empower the zealots among us, right and left, turning citizens against one another on whatever contentious issues legislators chose. This is probably not what the idiots in the Texas legislature had in mind, but it would be an almost-certain consequence.

However, even a more conventional overruling of Roe invites unintended consequences.

This year, the Supreme Court will review Mississippi’s ban on virtually all abortions after the 15th week of pregnancy. A Court created by Donald Trump is likely to overrule–or eviscerate–Roe v. Wade. If it does so, Republicans may come to rue the day.

Without Roe, the single-issue anti-choice voters that have been a mainstay of the GOP will be considerably less motivated. Pro-choice voters, however, will be newly energized–and polling suggests they significantly  outnumber “pro-life” activists.

The de-nationalization of Roe wouldn’t just mobilize pro-choice voters who’ve relied on Roe to protect their rights. It would redirect liberal and pro-choice energies from national to state-level political action. And that could be a huge game-changer.

If Roe is no longer the law of the land, the issue will revert to the states, and a number of states will opt for reproductive choice. Those of us who care about women’s autonomy will need to do some serious fundraising to help poor women in Red states travel to states where abortion is legal, and that’s a pain. But even now, with abortion theoretically legal, there are many places in the U.S. where clinics are few and far between; women have to travel long distances, put up with bogus “counseling,” and deal with other barriers to the exercise of the currently constitutional right to terminate a pregnancy.

As I have repeatedly noted, the current dominance of the Republican Party doesn’t reflect  American majority sentiments–far from it. GOP membership has been shrinking steadily; some 24% of voters self-identify as Republican (and thanks to vaccine resistance, those numbers are dwindling…) GOP gerrymandering and vote suppression tactics are artifacts of state-level control. With Roe gone, purple states–including Texas–will more quickly turn blue.

If Roe goes, the game changes. File under: be careful what you wish for.

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Be Careful What You Wish For

The Supreme Court–newly dominated by a conservative majority–has accepted an abortion case out of Mississippi. It is widely expected that the Court will use that case to further erode a woman’s right to terminate a pregnancy–not explicitly overturning Roe v. Wade, but effectively eviscerating it.

Talking Points Memo considered the likely political effects of that decision, pointing out that, since the justices waited until the end of the current term to say that they would take it up, with a decision likely next June, it can hardly avoid being a front-burner issue in the 2022 election cycle.

Linda Greenhouse sees the decision to accept the case as the “end of the free ride” for anti-choice activists. She began that analysis by listing a number of situations in which state legislation curtailing abortion rights has been struck down by the courts, allowing “pro life” politicians to posture without incurring the electoral wrath of those who disagree.

Her recitation reminds me of a conversation I had with an Indiana legislator several years ago. He was in my graduate Law and Policy Class, and I knew he was aware of First Amendment precedents prohibiting state endorsement of religion, so when he voted to post the Ten Commandments on government buildings, I challenged him. His response was candid: he could vote the way the “folks in Mayberry” (his small town) wanted, keeping them happy, secure in the prospect that the courts would “bail him out.”

Abortion politics has taken a similar path.

Ever since the 2010 election ushered new Republican majorities into state legislatures, politicians there have been able to impose increasingly severe abortion restrictions without consequence, knowing that the lower courts would enjoin the laws before they took effect and save the people’s representatives from having to own their actions.

Greenhouse explains how the Court can effectively demolish Roe without actually and explicitly overruling it, and then considers the politics involved. Her analysis is worth quoting at some length:

It’s a dim memory, but a salient one, that in Mississippi itself, a voter referendum that would have amended the state Constitution to grant personhood status to a fertilized egg was defeated in 2011 by a margin of 58 to 41 percent, despite endorsement by leading politicians and widespread predictions that it would pass. That’s when the anti-abortion forces decided that friendly legislatures were a better bet than the will of the people.

Last fall, in each of four nationwide polls, including one conducted for Fox News, more than 60 percent of registered or likely voters said they did not want the Supreme Court to overturn “Roe v. Wade.” I put the case in quotes because that’s how the pollsters asked the question; although Roe obviously carries strong symbolic meaning, the 1973 decision is in many respects no longer the law.

The question as the polls’ respondents processed it was most likely “Do you want to keep the right to abortion?” And no wonder the answer was yes: nearly one American woman in four will have an abortion. (Catholic women get about one-quarter of all abortions, roughly in proportion to the Catholic share of the American population.) Decades of effort to drive abortion to the margins of medical practice have failed to dislodge it from the mainstream of women’s lives.

For the cynical game they have played with those lives, politicians have not paid a price. Now perhaps they will. Of course, women themselves will pay a heavy price as this new reality sorts itself out, particularly women with low incomes who now make up the majority of abortion patients.

And there’s another price to be paid as justices in the new majority turn to the mission they were selected for. The currency isn’t votes, but something even more important and harder to win back: the institutional legitimacy of the Supreme Court of the United States.

There’s no free ride for the court either.

What Greenhouse doesn’t address is the extent to which the GOP has depended upon both the energy of anti-abortion activists and the relative lack of political activism by pro-choice voters who have assumed that the courts will protect their rights. If Roe is either over-ruled or–as is more likely–eviscerated, it may well shift that dynamic to the detriment of “the folks in Mayberry” and the GOP.

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Single-Issue Voters And The Courts

There are plenty of reasons to criticize the single-issue voters who are willing to put up with a mentally-ill, deeply-corrupt President if they think their votes will translate into the nomination and confirmation of “conservative” judges–defined as judges likely to overrule Roe v. Wade. 

Unfortunately, “conservative” judicial candidates able to pass the right’s litmus test aren’t just reliably anti-choice. Individuals who are willing to ignore stare decisis and the multiple complexities of women’s situations in order to criminalize the termination of pregnancy don’t approach that decision in a vacuum.

Scholars who have researched the differences between pro-life and pro-choice activists have concluded that both positions are elements of far more comprehensive world-views, some religious, some not.

Pro-life activism more often than not includes the belief that men and women are intrinsically different–and that, as a result of those differences (as one study has put it), men are best suited for the public world of work, while women are best suited to rearing children. These worldviews frequently include homophobia, and often a (selective) rejection of science.

Lawyers who argue that government has the right to decide such intimate matters for individual women are conservative only in the sense that they elevate “tradition” over the limitations that the Bill of Rights places on state power. They tend to see the United States as a “Christian nation,” and are thus willing to rule in accordance with the beliefs of (some) Christian denominations and to ignore the doctrines of denominations or religions that do not consider abortion or homosexuality sinful.

I do not think it overstates the case to assert that a significant number of the “conservative” lawyers being elevated to the federal bench aren’t simply anti-choice; they are anti-modernity.

I thought about the consequences of staffing the federal courts with people who define conservatism in this very narrow way when I saw news about a recent case involving the EPA.

In a victory for science and public health, a federal court determined that the U.S. Environmental Protection Agency cannot exclude scientists who have received EPA research grants—who happen to be mainly academic scientists from research universities—from serving on its advisory panels. The change, made by former EPA Administrator Scott Pruitt, had a silencing effect on public health studies.

The court’s decision in the case, which was brought by NRDC in 2019, “affirms the role of science in protecting our environment and public health,” says Jon Devine, director of federal water policy for NRDC’s Nature Program. “This is a victory for basic truth and good governance.”

Pruitt claimed that his 2017 directive reduced bias on the EPA’s nearly two dozen advisory panels, which offer scientific expertise that then guide policy decisions on environmental pollutants, such as industrial chemicals or airborne particles from power plants. But unsurprisingly, Pruitt’s rule was not extended to scientists and consultants with ties to chemical or fossil fuel companies, allowing the agency to soon fill some open seats with industry insiders who disputed the known harm of pollutants, like ozone and PFOA.

Devine calls the now-debunked plan a “pernicious scheme to stack the deck in favor of big polluters by trying to shut out the voices of scientists—all to pump more pollution into our lives.”

The ruling was handed down by Judge Denise Cote for the U.S. District Court for the Southern District of New York, after several courts had tossed similar claims.

It’s safe to assume that Judge Cote was not a Trump appointee–NPR recently reported that 70% of Trump’s judicial appointments have been white men. (As of last August, he had not nominated a single African American or a single Latinx to the appellate courts.)

And speaking of terrifying world-views,

Dozens of those nominees have refused to answer whether they support the Supreme Court’s holding in Brown v. Board of Education, the 1954 opinion that said racial segregation of public schools is unconstitutional.

I wonder how many of the people who voted for Trump because they oppose Roe v. Wade will be equally happy with the other decisions these “conservatives” will inevitably hand down?

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