Andrew Harnik/AP Photo
Abortion rights advocates and anti-abortion protesters demonstrate in front of the Supreme Court, December 1, 2021, in Washington.
In this sad season, when we remember Supreme Court Justice Harry Blackmun’s opinion issued 51 years ago, what candidates for the high court used to call the “super-precedent” of Roe v. Wade, we also start a year in which abortion once again lies at the center of national politics. It seems like a particularly apt time to consider what’s changed and what hasn’t since the Court’s conservative majority laid down the Dobbs ruling in 2022, and where we are headed from here.
The thing that’s changed most, of course, is the role of abortion in national and state-level politics. Although the devastating war(s) in the Mideast may upend this logic, Democrats are poised to continue collecting the electoral bonuses they have earned in the past 18 months from the fact that their policies track with what people actually want. According to an October 2023 poll by Ms. magazine, the Feminist Majority Foundation, and Lake Research Partners, 74 percent of Americans favor the right to make their own decisions about reproductive health care.
There will definitely be abortion referenda on two state ballots this coming November, in Maryland and New York, and perhaps as many as 12, if abortion opponents in Iowa and pro-abortion-access groups in Arizona, Nevada, Montana, South Dakota, Nebraska, Colorado, Missouri, Arkansas, and Florida (where advocates have enough signatures to get on the ballot but now must survive Ron DeSantis’s handpicked state supreme court, which will look for ways to keep their initiative away from the voters) get their way. Even where we know how those votes are likely to turn out, campaign operatives are betting that they will drive partisans to the polls. If the theory holds, that is good news for Democrats and lovers of rights, everywhere but possibly Iowa.
In New York, where seven potentially close congressional races could decide whether the state’s own Hakeem Jeffries moves into the Speaker’s office in the House of Representatives, voters will weigh in on abortion as part of a politically capacious and unifying Equal Rights Amendment. This new ERA, if it passes, will forbid government officials from discriminating on the basis of ethnicity, national origin, age, disability, sex, sexual orientation, gender identity or expression, pregnancy or pregnancy outcomes. The New York Civil Liberties Union underlines that the initiative would “protect against any government actions that would curtail a person’s reproductive autonomy or their access to reproductive health care,” specifying that “discrimination based on a person’s pregnancy or pregnancy outcome is sex discrimination.”
That’s the kind of thing that I, for one, would like to see everywhere—abortion rights linked with all the other rights we need personally and to have a good society, and access to reproductive health care understood not just as I-want-to-be-alone “privacy,” but also as a bedrock of “equality.”
For people who won’t vote on abortion access directly, issues of reproductive health and rights will nonetheless be hard to escape. The Supreme Court majority that threw out Roe promised to “return the issue of abortion to the people’s elected representatives.” They didn’t mean it. The tuneless Supremes are back this year, bringing forth a doubleheader with the potential for Barbenheimer-level drama. Each case implicitly raises the question: Will far-right conservatives burn the system down while carrying copies of the Constitution reverently in their vest pockets?
Regarding mifepristone, the abortion medication under review in case number one, at issue is whether the high court will let a federal agency, the Food and Drug Administration, regulate the terms under which a “drug” will be marketed and sold. Or will jurists substitute their judgment for the agency’s, possibly reducing the weeks into a pregnancy that mifepristone, which has been tested in the U.S. since 1983 and used safely in France since 1988, may be used or withdrawing authorization for its use in telemedicine?
The second case concerns the Emergency Medical Treatment and Active Labor Act (EMTALA) and the constitutional fundamental of federal law governing policy in the states. Congress responded to the “greed is good” 1980s by forbidding federally funded hospitals (i.e., virtually all of them) to turn people away without providing necessary tests and stabilizing treatment. Political leaders in Idaho, whose abortion statute allows someone to end their pregnancy to save their life but not their health, are fighting for the right to refuse ailing pregnant people health care. Texas has joined the issue, and so the Supreme Court will consider whether these two states have to follow national law, even when they don’t feel like it.
Dobbs matters. Losing Roe mattered. It was a gut punch to the history of Western feminism and threw us into a situation in which abortion is politically inescapable.
Despite all this, much has remained mostly unchanged since Roe’s fall. Perhaps the biggest, as-yet unassimilated story is that abortion is just different today than it was decades ago. My own guidepost memory is of a moment in the Supreme Court oral argument in the case June Medical Services v. Russo. It was March 4, 2020, just before everything shut down on account of COVID, and the case concerned a Targeted Regulation of Abortion Providers, or TRAP, law, which required all providers to have hospital admitting privileges near the clinic where they worked. There was a colloquy among Justice Sotomayor, a still-very-much-alive Justice Ginsburg, and advocate Julie Rikelman from the Center for Reproductive Rights (who is now a circuit court judge), in which they all considered how little sense the Louisiana law under review made, given that over 40 percent of abortions in the state were by medication, so the only thing that actually occurred in the clinic was that a patient received their pills. Any complications would occur in the patient’s home, which could be any distance from the prescribing doctor and clinic.
But Sotomayor, Ginsburg, and Rikelman seemed to be speaking a different language, even operating in a different epoch, than state policymakers and the other justices, who didn’t seem to know what the heck they were talking about.
Medication, an overwhelmingly safe and quietly off-stage option, has become an even more dominant way for people to end their pregnancies since that moment I witnessed at the Supreme Court. The number who manage abortion with medication, even without involving medical providers, has no doubt risen since Dobbs—but it was happening before, since millions were even then unable to access professional care. The reality of abortion has continued to gallop past the stereotypes, both from liberals who put on their Handmaid’s Tale robes and raise signs with hand-drawn wire coat hangers, and from conservatives who demonize the “abortionists” who supposedly cut pregnant people up for fun and profit.
The sotto voce availability of safe pills, even where using them isn’t entirely legal, is a big reason why people with anomalous experiences, relative to the tens of thousands who end pregnancies every year, are most visible in the court fights over state bans. Kate Cox and the group of other plaintiffs in Texas, whose health conditions make their pregnancies nonviable and threaten their own well-being, are sympathetic victims—especially when they are also white, married, middle-class, and facing the end of “wanted” pregnancies. But that’s not the only reason we’re hearing from them so much. It’s also because the overwhelming majority of people who choose abortion do so early in their pregnancies, and have the experience out of the limelight, without asking permission from Texas Attorney General Ken Paxton.
This is all background to a semi-stealth issue in the mifepristone case: Will this crazy Court rule that the mailing or other transport of mifepristone is governed by the Comstock Act of 1873, once a cudgel against anything considered “obscene” or abortifacient and basically a dead-letter law since the 1970s? The Comstock Act was so far from view before the 2020s that a colleague who teaches the history of women and gender had just removed it from her syllabus, on the grounds that it was too far in the hazy past for students to understand. How times do change!
As law professor David S. Cohen explained in a New York Times piece: “Everything in a doctor’s office comes from the mail or FedEx or UPS or some version of that, [s]o if you can’t mail anything that’s used to induce an abortion, it would end abortion nationwide.” I don’t think a Supreme Court majority will invoke the Comstock Act in this way—which is to say, I think Justices Thomas and Alito probably will, don’t know about Justice Gorsuch, and doubt Justices Roberts, Barrett, and Kavanaugh will join—but if they all stood together, then postal employees would be looking in everyone’s Amazon packages to see if they were receiving abortion pills. And that would be both new and terrible, although it would not keep people from using the pills.
In addition to abortion practice, the other thing that is more similar than different since Roe’s demise is that all forms of inequality map onto the ways proscriptive laws are actually enforced. The law that hurts reproductive health, rights, and justice doesn’t have to be an abortion ban to do its destructive work. And its cutting edges won’t necessarily be blunted by political coalitions that fight for abortion access, although those of us in the movement could certainly try harder to blunt these edges.
The case in point here is that of a Black woman from Ohio named Brittany Watts, arrested (although ultimately, thanks to grassroots pressure, not indicted) for the crime of “abuse of a corpse” when she miscarried at home. Her arrest occurred just before the people of her state voted to protect abortion access in the state constitution, by a robust majority, but she was still being prosecuted afterward. The state officials involved didn’t even claim that she had brought on the miscarriage herself. But they found a way to criminalize her reproductive behavior nonetheless.
The alchemy by which a woman who had a miscarriage was turned into a criminal did not depend on overturning Roe. It was shaped by race and a hostile climate toward abortion and anything that rhymes with abortion. The advocacy and legal defense group If/When/How released a report in August 2022 that found 61 cases between 2000 and 2020 in which people had been arrested or subject to criminal investigation for “mishandling fetal remains,” or something similar, with the specter of possibly having ended a pregnancy or helped another person end theirs hovering behind the ostensible charge. All of this happened before the Dobbs ruling.
Would a white woman with Brittany Watts’s experiences have been prosecuted? Probably not, although the more local authorities get away with treating people the way they treated her, the more likely it is that white, middle-class, married ladies will eventually be prosecuted just as hard, on equally flimsy grounds. This is very cold comfort anyhow; the fact is that throughout the 21st century, virtually all of the people who have been prosecuted, or terrorized by nearly being prosecuted, are nonwhite and/or immigrant and/or low-income. In other words, we’re talking about one more way that state power is mobilized against people who are already vulnerable legal or political subjects.
Dobbs matters. Losing Roe mattered. It was a gut punch to the history of Western feminism and threw us into a situation in which abortion is politically inescapable. For the foreseeable future, liberals, feminists, and social democrats will have to spend vast resources that we’d rather spend to improve the baseline of social provision defending fundamental, why-are-we-still-having-this-conversation-level rights. Debating abortion might help an otherwise pretty feckless Democratic Party, and therefore help keep authoritarianism at bay.
At the same time, we overstate the direct impacts of Dobbs on access to abortion and reproductive justice at our peril. When we fetishize the Supreme Court, in the Marxian sense of giving in to gauzy stories about how it works to shape our lives, we undercut possibilities for making things better. Even this power-engorged Court, fashioned by a conservative legal movement and largely insulated from democratic opinion, is acted upon as much as it acts. It can’t keep people from finding ways to run their own lives, especially when new technology evades Comstock-ian capture. It isn’t responsible for invidious patterns of misogyny and racism, or class and nativist bias.
We need to make law and policy from the perspective of what happened to Brittany Watts. The legal storm systems that ensnared people for years before the overturning of Roe will last despite mainstream victories for reproductive rights, unless we insist that all government officials leave all pregnant people alone. It’s a matter of justice, and equality, and it’s about time.
