We have to face a disheartening fact: This country’s Supreme Court is no longer committed to protecting our constitutional rights.
The justices are believed to be on the verge of overturning Roe vs. Wade, or at least whittling it down to a meaningless stub by allowing brutally restrictive state abortion laws to stand.
Already, the court’s conservative majority has shown that it is disinclined to toss out the blatantly unconstitutional new Texas law that bans most abortions.
Sure, we can argue over whether the legal rationale for Roe — the right to privacy— was imperfect, or whether the court acted precipitously in 1973 and should have allowed states to legalize abortion at their own pace instead.
At this point, all of that is just academic noise.
In 2006, the newest justice, Amy Coney Barrett, one of three archconservatives appointed by former President Trump, signed on to a two-page ad that ran in the South Bend Tribune calling for “an end to the barbaric legacy of Roe v. Wade.”
So let’s not pretend we don’t know how she feels about abortion.
If we can’t rely on the highest court to enforce the legal right to abortion, we have to figure out how to keep abortions accessible some other way.
“We know this will not be the end of abortion rights in the U.S.; rather it is the beginning of a new stage of the fight,” write attorneys Kathryn Kolbert and Julie F. Kay in their new book, “Controlling Women: What We Must Do Now to Save Reproductive Freedom.”
Kolbert co-founded the Center for Reproductive Rights in 1992, the same year she helped preserve Roe as the lead attorney in Planned Parenthood vs. Casey, in which a bitterly divided court upheld the right to abortion, but allowed states to impose restrictions such as 24-hour waiting periods and parental consent for minors.
Kay is a longtime reproductive rights attorney who worked with Irish activists to challenge that country’s abortion ban in the European Court of Human Rights. Their efforts were not successful, but Irish voters eventually legalized the procedure in 2018.
Their book is partly a bracing legal insiders’ story about the decades of court battles over abortion and partly a call to citizens to rise up in support of abortion, contraception, sex education, and the rights of the millions of poor women and women of color who have suffered most from grotesque policies such as the Hyde Amendment.
That law, renewed annually, bans using federal funds, like Medicaid, to pay for abortion, except in cases of rape, incest or where the life of the mother is at risk. (President Biden has said he opposes it, and the House left it out of the funding bill it approved earlier this month. But West Virginia pseudo-Democrat Sen. Joe Manchin has said he will not vote for any budget that omits it.)
But even women who qualify for Medicaid abortions are often punished or denied, the authors demonstrate. In 1997, Kay represented a young woman in Crawford, Neb., who was criminally charged with Medicaid fraud and false reporting after undergoing an abortion. She said she had been raped by a man she barely knew, and her doctor had reported the rape — making her eligible for a publicly funded abortion. But the local, anti-abortion prosecutor went after her, accusing her of making up the rape because she had declined to press charges. She refused a plea deal, and the charges against her were dropped.
The authors touch on some of the enduring myths around abortion, particularly a damaging one promulgated by the Catholic Church.
In 1996, they write, U.S. Catholic bishops took out a full-page ad in the Washington Post decrying the ease with which a teenager obtained an abortion so she could fit into her prom dress. A year later, the bishops were forced to rescind the false claim; a spokeswoman admitted an ad agency had made up the line. Nonetheless, abortion opponents still use the fabricated prom dress argument.
At least 19 states already have “trigger laws” on the books that will impose immediate bans once the court tosses Roe. The remaining states are expected to keep it legal, though it will be heavily restricted in some.
So where, exactly, to go from here?
Kolbert and Kay propose a Gender Equity Amendment be added to the Constitution. It is, as they put it, a “long-term moon shot,” but so were the legalization of gay marriage and the passage of universal healthcare … until they weren’t.
“The proposal can be a rallying cry for gender equity and reproductive justice and serve as a model for state constitutional change,” they write. “It may take a decade or more to build enough support for this change. But if that is 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 up our constitution’s doors to include procreative liberty and an inclusive vision of equity.”
Perhaps activists will muster a modern, feminist version of the gathering the original drafters of the Constitution convened in 1787 in Philadelphia.
In the meantime, though, many incremental steps can be taken.
California, as always, can be a model for other states. Starting in 2023, health centers in all state colleges and universities will be required to make medication abortion, widely known as the “abortion pill,” available to students.
There should be, in every state, explicit legal protection for women who have had abortions.
Every state should also make birth control pills available over the counter, as they are in many countries, including China, Greece, India, Turkey, Mexico, South Africa, Russia and Korea.
Or why not, ask Kolbert and Kay, launch a ship off the coast of anti-abortion states such as Texas, Louisiana and Mississippi, where, in international waters, medication abortions could be provided by medical staffers? (This idea is modeled on Women on Waves, the Dutch nonprofit that operates outside the territorial waters of countries that ban abortion.) At the very least, the publicity value would be immense.
In 1992, when the Supreme Court surprisingly upheld legal abortion in the Casey case by a vote of 5-4, Justice Harry Blackmun, who wrote the original opinion in Roe, said he was worried about the fate of legal abortion: “I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light.”
He was prescient.
Instead of cursing the coming darkness, those of us who value the equality of women have got to start building bonfires. Now.