We have to face a disappointing fact: the Supreme Court of this country is no longer committed to protecting our constitutional rights.
Judges are believed to be on the verge of overturning Roe v. Wade, or at least reducing him to a pointless sting by allowing brutally restrictive state abortion laws to apply.
The Conservative majority of the court has already shown that it is not in favor of rejecting the apparently unconstitutional new Texas law, which bans most abortions.
Of course, we can argue about whether the legal justification for Roe – the right to privacy – was incomplete or whether the court acted hastily in 1973 and should have allowed states to legalize abortion at their own pace instead.
At this point, it’s all just academic noise.
In 2006, the most recent judge, Amy Coney Barrett, one of three superconservatives appointed by former President Trump, signed ad on two pages which was published in the South Bend Tribune and calls for “the end of Roe’s barbaric legacy against Wade”.
So let’s not pretend we don’t know how he feels about abortion.
If we cannot rely on the Supreme Court to enforce the legal right to abortion, we need to figure out how to keep abortion accessible in some other way.
“We know this is not going to be the end of abortion rights in the US; but it is the beginning of a new phase of the struggle, ”write lawyers Kathryn Kolbert and Julie F. Kay in their new book, Women’s Control: What We Need to Do Now to Save Reproductive Freedom.
Kolbert co-founded the Center for Reproductive Rights in 1992, the same year she helped keep Roe as the lead attorney in the Planned Parenthood vs. Casey, in which a bitterly divided court upheld the right to abortion, but allowed states to impose restrictions such as e.g. 24-hour waiting periods and parental consent for minors.
Kay is a longtime reproductive rights lawyer who has worked with Irish activists to challenge the abortion ban in that country at the European Court of Human Rights. Their efforts were not successful, but in 2018 Irish voters eventually legalized the process.
Their book is partly an invigorating story of legal insiders about decades of litigation over abortion and partly a call to citizens to stand up in support of abortion, contraception, sex education and the rights of millions of poor and colorful women. who suffered the most from grotesque policies such as the Hyde Amendment.
This law, which is renewed every year, prohibits the use of federal funds, such as Medicaid, to pay for abortion, except in cases of rape, incest, or when the life of the mother is endangered. (President Biden has said he opposes it, and Parliament has omitted him from a funding bill it approved earlier this month. But West Virginia pseudo-Democratic Sen. Joe Manchin has said he will not vote for any budget release.)
But even women eligible for Medicaid abortions are often punished or rejected, the authors show. In 1997, Kay represented a young woman in Crawford, Neb., Who was charged with Medicaid fraud and false reporting after an abortion. She said she was raped by a man she barely knew and her doctor reported the rape, making her eligible for a publicly funded abortion. But a local abortion prosecutor tracked her down and accused her of fabricating rape because she denied the charge. She refused a plea agreement and the charges against her were dropped.
The authors touch on some enduring myths about abortion, especially the harmful one declared by the Catholic Church.
In 1996, they write that American Catholic bishops published a full-page ad in the Washington Post condemning how easily a teenager had an abortion so she could fit into her prom dress. A year later, the bishops were forced to revoke false claim; a spokeswoman acknowledged that the advertising agency had made the decision. Nevertheless, opponents of abortion still use the argument of a fictional prom dress.
At least 19 countries already have “trigger laws” in their books that will impose immediate bans once a court dismisses Roe. The remaining countries are expected to maintain it legally, although it will be severely limited in some.
So where exactly to go from here?
Kolbert and Kay propose that an amendment on gender equality be added to the constitution. It is, as they said, a “long moon,” as well as the legalization of same-sex marriage and the transition to universal health care… until they were.
“The proposal can be a collective call for gender equality and reproductive justice and serve as a model for constitutional change in the country,” they write. “It may take a decade or more to build enough support for this change. But if that’s the case, then let’s get started. “
There is no language for this amendment yet, they write; The idea is to start a conversation about how to “open the door to our constitution to include pro-creative freedom and an inclusive vision of justice.”
Perhaps the activists will gather a modern, feminist version of the meeting of the original drafters of the Constitution, convened in 1787 in Philadelphia.
In the meantime, many gradual steps can be taken.
California, as always, can be a role model to other countries. From 2023 onwards health centers at all state colleges and universities will be required to provide students with abortion with drugs commonly known as “abortion pills”.
There should be explicit legal protection in every country for women who have had an abortion.
Each country should make contraceptive pills available over the counter as they are in many countries including China, Greece, India, Turkey, Mexico, South Africa, Russia and Korea.
Or why, Kolbert and Kay ask, would we not launch a ship off the coasts of anti-abortion states such as Texas, Louisiana and Mississippi, where abortions with drugs could be performed by medical personnel in international waters? (This idea is modeled after Women on the waves,, Dutch non-profit organization which operates outside the territorial waters of abortion-prohibiting countries.) At least the advertising value would be enormous.
In 1992, when the Supreme Court surprisingly upheld a legal abortion in the Casey case by 5 to 4 votes, Judge Harry Blackmun, who wrote the original opinion in Roe, said he was worried on the fate of legal abortion: “I’m afraid of the dark, as four judges are eagerly awaiting a single vote needed to turn off the lights.”
He was careful.
Instead of cursing the coming topic, those of us who value women’s equality should start building bonfires. now.