Neither free nor equal

We will all remember the moment we heard the decision come down.At 10:11 a.m. on Friday, June 24, 2022, the Supreme Court of the United States issued its judgment in Dobbs v. Jackson Women’s Health Organization.The Court overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), its own decisions recognizing and reaffirming the constitutional right to abortion.

Following the Dobbs hearing in December and the leak of Justice Alito’s draft opinion last month, this outcome was expected. But it was still a deeply upsetting, horrifying moment. I felt a cold hand grabbing my chest, a terrible feeling of dread. I was also furious. F***ing pissed.

In front of the Supreme Court last December during the hearings for Dobbs

The Court’s judgment runs counter to global trends on abortion: more than 60 countries have expanded abortion rights since the 1990s. Feminist activists around the world offered words of support to their American sisters, but some also expressed concern that this could reenergize anti-abortion forces in their countries.

What does Dobbs mean for women in the US? “Today… [the Court] says that from the very moment of fertilization, a woman has no rights to speak of.A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs,” as Justices Breyer, Sotomayor and Kagan write in their powerful dissent. “Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected ‘[t]he ability of women to participate equally in [this nation’s] economic and social life.’ But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions… After today, young women will come of age with fewer rights than their mothers and grandmothershad.”

Neither free nor equal. It’s as plain as that.

I immediately thought of those providing abortion services who had to stop working right then, because trigger laws applied in their state at the very moment Roe was overturned. Of their patients who had to leave, confused and anxious, still pregnant and not wanting to be, and trying to figure out their options as the clock keeps ticking.

I thought of the staff at Jackson’s Women’s Health, the sole remaining clinic in Mississippi—known as the Pink House—who soldiered on . Even though their clinic was at the center of the decision that overturned Roe, they kept on working, because the Mississippi law that would ban all abortions in the state will only take effect 10 days after the state’s attorney general issues certification. That certification happened on June 27. The staff has been experiencing an even more intense barrage of harassment and picketing from evangelical Christian protesters than they usually do, but they will continue to serve clients until the last possible moment. They know the devastating impact this ban will have on so many people in Mississippi, a state with one of the worse maternal mortality ratios in the country—and where Black women die in childbirth at three times the rate that white women do. The Court’s majority heard this evidence, and they did not care.

The Pink House in Jackson, Mississippi

In some respects, we are in a very different place than we were in 1973. We now have abortion pills, a safe, effective and undetectable method of managing one’s own abortion. More than half of abortions in the US are already “medication abortions.” What if we all kept abortion pills on hand, to use when needed or pass them to relatives and friends in need? will mail abortion pills to anyone who wants to have them in their medicine cabinet for such an eventuality. No need to be pregnant.

Surely then, coat hangers are a thing of the past? I’d like to hope so, but I keep worrying about those who won’t have the resources or ability to go online and order abortion pills. Adolescents or low-income persons without a credit card or a computer. Those with an abusive partner or those who are houseless, who don’t have privacy or an address to receive pills by mail. Incarcerated women. The 60% of women in the US  who still don’t even know that abortion pills are an option. We have to do much more to support those who are getting the word out about abortion pills and who are distributing them. (I append a list of organizations to support).

I read and reread all 213 pages of Dobbs. The Court’s majority opinion is identical to the draft that was leaked last month: terrifying in its implications. If a right isn’t explicitly mentioned in the Constitution and was not widely recognized by the mid-19th century (“deeply rooted in the Nation’s history and tradition”), you are out of luck.

One aspect of Alito’s argumentation I had not focused on at first, now nags at me: he writes that curtailing abortion rights is not sex-based discrimination. You read that correctly. But how could it NOT be sex-based discrimination, you might ask? After all, the Catholic and evangelical right contends that all differences between men and women are rooted in biology. Since in their view, women (and only women) have uteruses and can be pregnant, banning a procedure only women need is sex-based discrimination, right?

To support his bizarre claim, Alito relies on the opinion issued by Justice Antonin Scalia in Bray v. Alexandria Women’s Health Clinic in 1993. The anti-abortion protesters who blocked access to the Alexandria abortion clinic were not motivated by anti-woman sentiment, wrote Scalia in Bray. They were motivated by their desire to rescue the unborn. “…[P]etitioners define their “rescues” not with reference to women, but as physical intervention ‘between abortionists and the innocent victims…’” In Scalia’s and Alito’s view, the protagonists are abortion providers, their opponents, and the fetus. Women don’t feature in this equation, so it’s not sex-based discrimination. Wow.There is no Equal Rights Amendment in the US Constitution to prohibit discrimination against women. In fact, there is no mention of women at all. I feel that absence, deeply.

With Dobbs, as I noted last month, Justice Samuel Alito and his extreme right-wing colleagues do more than end the right to abortion, as grave as that is. They also gut the right to privacy, which had been incorporated into the US Constitution under the doctrine of “substantive due process” over decades of jurisprudence, and has protected the right of married persons to use contraception, and the right of persons to marry or have sexual relationships with someone of the same sex, among other rights.

While the Court’s majority claims, implausibly, that Dobbs has no bearing on those rights, Justice Clarence Thomas, in his separate but concurring opinion, cuts through that nonsense, and announces his intention to go further at the first opportunity: “…in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [same-sex relationships], and Obergefell [same-sex marriage]. Because any substantive due process decision is “demonstrably erroneous,”…we have a duty to “correct the error” established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.” [my comments in brackets]

Bodily autonomy; control over sexuality, reproduction and gender; decisions about child bearing, child rearing, marriage and family relationships... all are now up for grabs in the United States. The State can intrude, and this Court will uphold that intrusion as long as it fits its vision of “tradition and history.”

The Supreme Court of the United States is now controlled by the Christian and Catholic extreme right, and they are in a hurry to remake constitutional law. (A few days later, on June 27, in Kennedy v. Bremerton School District, the Court declared that a high school football coach could lead students in prayer on the field during a school game, upending another entire area of US law).That theocratic vision underpins Alito’s vitriol towards Roe and Casey. And numerous judges at other levels of the judiciary are of the same persuasion—the result of the longstanding right-wing campaign, endorsed and executed by the Republican Party, to remake US courts.

It’s now 6-3 for the Catholic and Christian right on the Supreme Court of the United States

Yet, given that theocratic stance, the one thing the majority held back in its brazen opinion, was fully asserting the religious views underpinning it. Justices Breyer, Sotomayor and Kagan point that out in their dissent:“To the contrary, the majority takes pride in not expressing a view “about the status of the fetus," (aligning itself with Roe’s and Casey’s stance of not deciding whether life or potential life is involved).The majority’s departure from Roe and Casey rests instead—and only—on whether a woman’s decision to end a pregnancy involves any Fourteenth Amendment liberty interest (against which Roe and Casey balanced the state interest in preserving fetal life).

”The Court’s majority did not need to declare that life begins at conception and the fetus a person—because others will take care of that part. Breyer, Sotomayor and Kagan note that, since the Court's majority made a big show of wanting to return the regulation of abortion to legislators, it could just hold off on declaring the fetus a person. States controlled by Republicans are already on the case (five states have introduced a bill to that effect in 2022). The implications for the rights of women and pregnant persons are staggering. And if Republicans ever take back Congress and the White House, they will no doubt try to pass the “Human Life Amendment” that has been introduced regularly since 1973, and seek to prohibit abortions nationwide from the moment of conception.

Now what? Even as the confusion, chaos and anxiety unleashed by Dobbs engulf so many of us, groups on the ground are providing care, supporting pregnant persons to access services, and taking up legal cases at the state level. If you are in the US, consider a donation to these great organizations:

Whole Woman’s Health clinics (abortion services)

If/When/How and ACLU Reproductive Freedom Project (legal defense)

Plan C and AidAccess (info on and provision of abortion pills)

The struggle continues. We will never go away.

In rage, love, care and solidarity,