On December 1st, I stood with other abortion justice activists in front of the Supreme Court of the United States as it heard arguments in Dobbs v. Jackson Women’s Health Organization. This is the case of the Mississippi law (HB 1510, the Gestational Age Act), which bans abortions after 15 weeks of pregnancy.The sun was shining, but the atmosphere was charged. Several anti-abortion campaigners had set up their tall loudspeakers on “our side”―the space reserved for the supporters of Jackson Women’s Health Organization, the sole abortion clinic left in Mississippi and the defendant in the case. These (older white) men yelled non-stop at us: “You will burn in hell, baby killers!”, “Repent or perish, whore of Babylon!” Whenever a Black speaker came up to share their abortion experience, or to speak about providing abortions, the heckling increased: “Black genocide! You are killing Black babies!” It was relentless, violent, and intense.
Yet, our speakers kept inspiring us with words of compassion, courage, determination, humor, and a strong dose of righteous anger and outrage. There they were: the abortion justice activists, doctors, storytellers, community and youth organizers, lawyers, medical students, and Members of Congress—leaders brave and inspiring, most of them women of color, many young and queer, who know all too well the harm that abortion bans inflict on their community. Their organizations were called to the podium by the indefatigable Renee Bracey Sherman of storytelling group We Testify, waving her silver pom-poms: the Yellowhammer Fund, Mississippi Reproductive Freedom Fund, Abortion Care for Tennessee, SisterSong, All* Above All, Liberate Abortion Coalition, Access Reproductive Care-Southeast, Reproaction, Shout Your Abortion, Center for Reproductive Rights, NARAL Pro-Choice America, Planned Parenthood Federation of America.
I spied a few of the students from Jerry Falwell’s Liberty University, who were bussed in by the hundreds for the occasion, listening intently to our speakers; they seemed to be the lone students of color in a sea of red Liberty varsity jackets.
This was the first full hearing by the Supreme Court of an abortion case since feminist icon Ruth Bader Ginsburg was replaced by ultraconservative Amy Coney Barrett. Things were not looking good even before the hearing began. In a world where legal precedent matters, the Supreme Court would never have heard Dobbs. The lower courts had declared the Mississippi law unconstitutional because it so clearly violates 50 years of the Court’s decisions on abortion bans pre-viability (before the fetus can survive separately). That should have been that, and permission to appeal to the Supreme Court denied.
On September 1st, the same Supreme Court had also refused to suspend another abortion ban, SB 8, the Texas law that forbids abortion at about six weeks of pregnancy and empowers civilian vigilantes to enforce this ban. Because SB 8 so blatantly denied pregnant persons their constitutional right to obtain an abortion, the Court should have suspended SB 8’s application until it reached a decision. When a legal challenge is brought against a new law that is alleged to inflict serious harm, a court will normally suspend the law’s enforcement until it can decide the case, to prevent that harm. That the Supreme Court refused to protect the women of Texas against SB 8 is scandalous.
The oral arguments in Dobbs, broadcast in audio, were shocking and infuriating. Fortunately, the awesome Justice Sonia Sotomayor was prepared to call out nonsense. On the purely legal side, Mississippi had been granted permission to argue a single question: whether a state could ban abortion after 15 weeks, rather than at viability, which is around 24 weeks. Viability was the line drawn in 1973, in Roe and again in 1992, in Casey (the case that reviewed Roe extensively and upheld it). Yet, when he came before the Court, Scott Stewart, the Solicitor General of Mississippi, argued something much broader: that Roe should be overturned completely and abortion left to individual states to decide. During the arguments, Chief Justice John Roberts noted that Mississippi had “shifted gears,” which should have been enough to throw out the case. But instead, Justice Roberts covered for Mississippi, letting Stewart argue that it wasimpossible to raise the question of 15-week bans without challenging women’s fundamental right to abortion. And why had Mississippi changed its approach? Justice Sotomayor clarified for everyone: “Now the sponsors of this bill, the House bill in Mississippi, said, ‘We’re doing it because we have new justices.’” (Brett Kavanaugh and Coney Barrett). Sotomayor warned the Court against overturning a 50-year precedent: “Will this institution survive the stench that this creates in the public perception, that the Constitution and its reading are just political acts?”
Regarding the argument that Roe was wrongly decided because the word “abortion” is not in the US Constitution, Sotomayor noted with some exasperation that even the role of the Supreme Court as the final arbiter of constitutionality was not written into the US Constitution. She then went on to list the kinds of personal decisions that the Court has decided the state cannot intrude on: the religion parents will teach their children, the decision to homeschool children, the use of contraceptives, the right to marry the person of one’s choice. “I fear none of those things are written into the Constitution. They have all … been discerned from the structure of the Constitution.”
When asked by Coney Barrett whether these other rights would be affected by a decision to overturn Roe, Stewart denied that cases like Griswold (right to use contraceptives), Lawrence (right to have same-sex relationships), or Obergefell (right to same-sex marriage) would be affected. Yet, these cases relied on the same interpretation (known as “substantive due process") of the Fourteenth Amendment to the Constitution. “I’m not sure how your answer makes any sense,” Sotomayor shot back. “Griswold, Lawrence, Obergefell—they all rely on substantive due process. You’re saying there is no substantive due process in the Constitution, so they’re just as wrong according to your theory.” And then the kicker: “I just think you’re dissimilating when you say that any ruling here wouldn’t have an effect on those.” Sotomayor is of course right: further attacks on privacy and liberty―on contraception, on same-sex marriage―would be likely with Roe overturned.
Mississippi then got to its key point: “None of [those cases] involve the purposeful termination of life.” Perplexed, Sotomayor asked: “How is your interest anything but a religious view? The issue of when life begins has been hotly debated by philosophers since the beginning of time. It’s still debated in religions. So when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view…” Stewart dodged the question and responded that the absence of agreement on when life begins meant the issue should be returned to the states to decide. Elizabeth Prelogar, the Solicitor General of the United States, made it clear why that was unacceptable: “The Court correctly recognized that [abortion] 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.”
Sotomayor then forced the Court to pay attention to women: “So when does the life of a woman and putting her at risk enter the calculus?” It wasn’t until Julie Rikelman, of the Center for Reproductive Rights, and Prelogar addressed the Court, that those considerations were finally argued. “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,” said Rikelman in her powerful opening statement. Prelogar warned the Court against enacting an “unprecedented contraction of individual rights… The Court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society.
”When asked by Chief Justice Roberts why 15 weeks wasn’t acceptable when it was close to the line drawn by other countries’ laws, Rikelman noted that, while other countries like Great Britain have a nominal line at 12 or 14 weeks, they still allow abortion after that time for a wide range of socio-economic and health reasons, and they don’t place the same obstacles to abortion (cost, lack of a universal healthcare system…) in the way of women in the early stages of pregnancy. Rikelman explained why some women, often those in the most challenging circumstances, still needed abortions after 15 weeks. These are “women with a major health or life change during the course of a pregnancy, poor women, who are twice as likely to be delayed in accessing care, or young people, or those using contraception, who take longer to recognize a pregnancy.”
Justice Coney Barrett shocked many of us when she asked why recent “safe harbor laws” that allow a woman to abandon her newborn at a hospital or police station weren’t sufficient to address the issue of forced motherhood raised in Roe and Casey. She then blithely compared the infringement on bodily autonomy inflicted by forced pregnancy to that of getting a vaccine. Rikelman reminded the Court of the often serious physical consequences of pregnancy and childbirth, and noted that in Mississippi a woman was 75 times more likely to die in childbirth than by undergoing an abortion. Prelogar then warned the Court against “overlooking the consequences of forcing a woman … to decide whether to give a child up for adoption. That itself is its own monumental decision for her.”
Justice Sam Alito appeared to be very interested in granting rights to the fetus early in pregnancy: “…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 wasn’t going there: “The Court had to set a line between conception and birth, and it logically looked at the fetus’s ability to survive separately as a legal line, because it’s objectively verifiable and doesn’t require the Court to resolve the philosophical issues at stake [of when life begins].”
Justice Kavanaugh attempted to compare overturning Roe and Casey to the Court’s decision in Brown v. Board of Education, when the Court overturned its abominable 1896 decision in Plessy v. Ferguson on racial segregation. Ooof… He then listed other cases where the Court has overturned its precedents, including Lawrence and Obergefell. Prelogar noted that in all of these cases, the later decision had expanded rights, rather than taken them away. “Here, the Court would be doing the opposite. It would be telling the women of America that … the ability to control their bodies and perhaps the most important decision they can make about whether to bring a child into this world is not part of their protected liberty…”
At the end of the hearing, most commentators, myself included, felt that the Court was likely to overturn Roe and Casey. With more than 12 abortion bans pending in various states, a torrent of other restrictions adopted in 2021, and 22+ “trigger” laws ready to be enforced should Roe and Casey be overturned, the state of reproductive rights in the US is dire. Democratic leadership in the US Senate (that’s you, Senator Chuck Schumer 1-202-224-6542) could lift the filibuster rule to uphold the right to abortion (and other civil and political rights), as they have done for budgets and the debt ceiling. A bill codifying Roe, the Women’s Health Protection Act of 2021, has been passed by the House of Representatives and is ready to be voted on. That it hasn’t been yet is incomprehensible and indefensible.
The bold and brilliant young Black and brown activists who stood to proclaim our rights that day in front of the Court, the solidarity and determination they expressed, the material support that many abortion funds have been giving to pregnant persons for years now given steadily eroding abortion access in the US―these actions give me strength. We will keep fighting for abortion justice!
If you are in the US, call Chuck Schumer, your other senators, and the White House and tell them to pass the WHPA. And please donate to abortion funds, which are helping pregnant persons right now. This link will allow you to support 10 abortion organizations in Texas and other states with one click: https://secure.actblue.com/donate/abortionfund
Here’s to a happier, healthier, braver, fairer world in 2022.
In solidarity and love,