Without struggle, there is no Roe

July 20, 2018

Can the anti-abortion fanatics be stopped from overturning legal abortion? Michelle Farber and Elizabeth Schulte look back at history for some lessons of the struggle.

SUPPORTERS OF the right to abortion have a fight on their hands with Donald Trump’s nomination of Brett Kavanaugh, a conservative who could tip the balance of the Supreme Court against Roe v. Wade, the 1973 decision that made abortion legal on the federal level.

With so much at stake, it’s important to recall the political climate in which Roe itself was won — a massive women’s rights movement that put reproductive rights front and center — and the fact that Supreme Court justices and the politicians that approve them aren’t immune from protest.

The question is whether the pro-choice forces that we know exist can be mobilized to show their opposition to Kavanaugh’s appointment, putting pressure on the Senate to reject him. Kavanaugh is an obvious fanatic — he could be rejected if the Democrats are forced to put up a real fight.

If he is confirmed, we will need a mobilized resistance on a scale that can keep the Court from turning back the clock on women’s rights. There will be an in-built right-wing majority on the court — but the right has been stopped before. This is a time when we need to remember the abolitionist Frederick Douglass’ words: “Without struggle, there is no progress.”

Thousands march in New York City to defend reproductive rights against legislative assaults on abortion and women's health services
Thousands march in New York City to defend reproductive rights against legislative assaults on abortion and women's health services (J.B. Nicholas | Sipa)

Trump selected Kavanaugh to succeed 81-year-old Justice Anthony Kennedy, who has often been a deciding vote on Supreme Court cases, including those concerning women’s right to choose.

Though a staunch conservative who was nominated by Ronald Reagan, Kennedy voted to uphold abortion rights in 1992 in Planned Parenthood v. Casey and, more recently, in Whole Woman’s Health v. Hellerstedt, which overturned a Texas law that put restrictive health regulations on clinics that perform abortions.

Like Trump’s previous nominee Neil Gorsuch, Kavanaugh is definitely part of the right-wing legal establishment. He considers the arch-conservative Chief Justice William Rehnquist — who wrote the dissenting opinion in the 1973 Roe v. Wade case — “his first judicial hero.”

Kavanaugh was part of a three-judge panel in the case of Jane Doe, a pregnant 17-year-old who tried to enter the U.S. illegally without an adult family member accompanying her, and was denied her request for an abortion while in detention.

The government refused to help Doe obtain an abortion, arguing that it didn’t impose any real burden on Doe’s rights because she had other options: leave the U.S. or find a sponsor to take her on. The full D.C. circuit court eventually ruled to allow Doe to obtain an abortion, but Kavanaugh dissented.

While Senate hearings have not yet been scheduled, Majority Leader Mitch McConnell told reporters he expects to have Kavanaugh confirmed by October 1. This means that pro-choice activists have to get organized quickly to oppose this nomination.

THE ANTI-CHOICE movement has had Roe in its crosshairs for decades, and we face the very real threat of losing legalized abortion in the U.S.

But it’s also important to take stock of the damage that has already been done to the ability to obtain safe and legal abortions in many states across the country. Practically speaking, many women and reproductive-aged people already live in a post-Roe world.

For people on Medicaid who can’t afford an abortion, the Hyde Amendment prohibits their insurance from covering the procedure. Abortion access continues to erode countrywide, creating vast “abortion deserts.” In 2017, 49 abortion clinics shuttered their doors.

Abortion access remains highly variable across the country, and these closures impact the women and people who can get pregnant who need it most — poor, working class, Black, Latinx, Native and rural Americans. According to the Guttmacher Institute, 90 percent of counties are without an abortion provider, and in 2014, 40 percent of reproductive-aged people lived in those counties.

In 2014, 75 percent of abortion patients were considered poor or low income, and other abortion restrictions that add expenses, such as travel, lodging, child care or time off work, place abortion further out of reach for many.

Overturning Roe wouldn’t make abortion illegal nationwide, but it would leave the decision up to the states.

Amy Myrick, a staff attorney at the Center for Reproductive Rights, explained what they predict for a post-Roe world: “We think there are 22 states likely to ban abortion without Roe“ because of a combination of factors, including existing laws and regulations on the books and the positions of the governors and state legislatures.

THE STRATEGY of the anti-choice movement, up until now, has not been to focus entirely on overturning Roe, given the wide support for legal abortion. According to the Kaiser Family Foundation, over two-thirds of Americans do not want Roe overturned.

In a 2007 memo, conservative legal strategist James Bopp discouraged anti-choice politicians from pursuing total abortion bans. “No amount of stirring rhetoric arguing that the states have a duty to do something to trigger reconsideration of Roe changes the hard fact that such an effort is presently doomed to expensive failure,” Bopp said.

At that time, Bopp argued for an incremental approach to making abortion essentially inaccessible, and the right has scored big successes, passing over 400 abortion restrictions in the last seven years alone and a stunning 1,193 restrictions since abortion became legalized.

Now, though, with a vocal opponent of abortion rights in the White House and the absence of uncompromising and unapologetic voices in defense of the right to abortion, anti-choice forces have gained confidence and are taking aim at Roe.

Reva Segel, a constitutional law professor at Yale University, thinks the Court will hold off on immediately overturning Roe, not only because it would be unpopular, but because it would undermine the court’s legitimacy. She notes that the Court could take a two-step approach, similar to what it did to gut the Voting Rights Act.

But some journalists and legal scholars think that Roe could be overturned if conservative judges take advantage of the vague language of the Casey v. Planned Parenthood decision, in which the Supreme Court reaffirmed Roe, but ruled that a state could place limitations on abortion as long as they didn’t place an “undue burden” on the woman.

There are also several abortion-related cases working their way through lower courts that deal with questions about when abortions should be allowed, or which procedures doctors can perform to terminate a pregnancy, which could imperil Roe.

REGARDLESS OF how the anti-choicers proceed, it is evident that Democratic Party politicians can’t be depended upon to uphold abortion rights — unless they’re forced to.

From their support for the Hyde Amendment, a rider that has been passed every year by every Congress since 1976, to the abortion provisions in Barack Obama’s Affordable Care Act, Democrats see abortion as a bargaining chip, not a matter of life and death.

They claim they will defend abortion rights at election time, but when they’re in office, they use the issue of abortion to show how well they work with conservatives.

In 2010, for example, Democratic President Barack Obama signed an executive order ensuring that the current restrictions on abortion funding for Medicaid would stand under the new health-care law to appease anti-choice Democrats like former Rep. Bart Stupak and Sen. Ben Nelson.

As recently as May 2017, House Minority Leader Nancy Pelosi stated that abortion is “kind of a fading as an issue” for the Democratic Party, and even Bernie Sanders helped campaign for Democratic National Committee-backed Heath Mello, an anti-choice Democrat running for mayor in Omaha.

As the Democrats have moved abortion rights further down their list of priorities over the decades, this has had an impact on the large women’s rights NGOs whose attention has been laser-focused on electing Democrats.

Since Kavanaugh’s nomination, the message from multiple organizing e-mails is that the best way to protect choice is to donate, volunteer to door knock for Democrats, and call your senators. NARAL Pro-Choice Washington, for example, asked that supporters donate $15 each so that they can nominate candidates who will “fight back with every bone in their body.”

There are others who are accepting defeat pre-emptively. Yamani Hernandez, the executive director of the National Network of Abortion Funds, is among those arguing that we shouldn’t despair, because illegal abortions are much safer than they were in the 1960s.

“There’s this narrative that in this new climate [where Roe could be overturned], people will resort to desperate measures, and we really push back on that narrative because we know that also the technology has changed, the medicine has changed, and we know that people are able to have an abortion with medication,” Hernandez said.

While it is true that medication abortion will most likely be safer than the back-alley abortions of the 1950s and 1960s, losing broad access to abortion will still hurt millions of women — and still kill hundreds, if not thousands of women per year.

PROTEST IS what’s needed to pressure pro-choice lawmakers to make good on their promises to protect the right to abortion and oppose Kavanaugh’s appointment. We need to activate and organize the many people we know who oppose the right’s attack on our rights.

Local defense groups have successfully confronted and turned back the anti-abortion bigots’ message in the streets, such as Seattle Clinic Defense and NYC for Abortion Rights. But these organizations are far from the massive movement we need to defend and expand abortion rights.

Internationally, we’ve seen multiyear campaigns to legalize abortion in Argentina and Ireland.

In those countries, activists formed broad coalitions involving grassroots organizations and NGOs, they organized massive marches and speak-outs, and they put pressure on politicians. They didn’t campaign for a person or party who promised to usher in abortion rights — they fought for their rights themselves.

We have to remember that the Supreme Court can and has succumbed to public pressure.

It will be a real blow if Kavanaugh is confirmed to be a Supreme Court justice — but Roe was won in the first place during the Richard Nixon administration, due to a sea change in public opinion about women’s equality, including reproductive rights, which had an impact on society as a whole and even the Supreme Court.

When abortion rights were under threat during the George Bush Sr. administration as a conservative-stacked Supreme Court took up the Webster v. Reproductive Health Services in 1989, half a million pro-choice supporters traveled to Washington to demonstrate in support of the right to choose while the justices were deliberating.

Again, in 1992, when abortion rights were threatened in Casey, the National Organization for Women called a national protest in Washington, D.C., turning out hundreds of thousands.

The massive Women’s Marches in response to the Trump presidency over the last two years show that there are tens of thousands of people who are eager to stand up to the right wing — and take the street to tell politicians we’re not letting them turn back the clock.

As Howard Zinn wrote during 2005 congressional hearings to affirm Justice Antonin Scalia:

The right of a woman to an abortion did not depend on the Supreme Court decision in Roe v. Wade. It was won before that decision, all over the country, by grassroots agitation that forced states to recognize the right. If the American people, who by a great majority favor that right, insist on it, act on it, no Supreme Court decision can take it away.

Further Reading

From the archives