Jacquelyn Martin/AP Photo
Abortion rights demonstrators including Jaylene Solache, right, of Dallas, Texas, rally outside the Supreme Court, March 4, 2020, in Washington.
This article appears in the September/October 2021 issue of The American Prospect magazine. Subscribe here.
The demonstration in Burlington, Vermont, days after the Supreme Court allowed Texas to forbid abortions after six weeks of pregnancy, was defiant but sad. We were a sparse mix of youngsters, gray-hairs, and elected Democrats carrying the usual signs, preprinted bright-pink for Planned Parenthood, yellow for the ACLU, plus a few battered, hand-lettered ones that looked like this was not their first demonstration: “We Won’t Go Back!” they pledged in smudgy magic marker.
I hate to be a downer, or make facile comparisons between past and present, but we as a society have indeed “gone back” to the kind of legal situation that prevailed before the Supreme Court ruled in Roe v. Wade and its vital but oft-forgotten companion case, Doe v. Bolton (1973). In narrow terms, what the Court did then was affirm a constitutionally meaningful “zone of privacy” in the space of one’s own body and one’s deliberations with a health care provider, responding positively to a nationwide feminist and faith-based movement to change the abortion laws.
The more sweeping import of Roe is and always was its endorsement of pregnant people’s independent personhood, apart from the potential children they carry and from their romantic, sexual, and legal partners. This endorsement was partial, incomplete, and slantingly staked, like late-summer tomato plants in rocky soil, threatening collapse at the first hard wind. But it was there, thanks not just to the Court but to thousands of people who undid the old abortion regime by defying it quietly and loudly, individually and together.
A flame burned through Roe and Doe. I hesitate even to call that flame “respect for women’s citizenship.” (Nowadays, we know that nonbinary people and those who identify as male can also get pregnant, so it certainly included them.) Those decisions symbolized a temporary and imperfect victory over the raft of ways reproductive power has been placed in service of social hierarchy. Although it has taken particular forms in our history, this kind of supremacy precedes and transcends the idea of “citizenship,” which arrived with the modern state. (Think: U.S. slavery and all systems of caste. Heritable inequalities are always the fruits of reproductive politics.)
This short, unsigned opinion by five justices isn’t a harbinger of something cataclysmic that might happen in the future; it’s the thing itself.
On Thursday, the day after the late-night issuance of the Court’s decision, I was numb. Friday and Saturday, I couldn’t stop weeping. Why? This short, unsigned opinion by five justices isn’t a harbinger of something cataclysmic that might happen in the future; it’s the thing itself. An anonymous and yet fully authoritative Supreme Court majority, engorged by the Republican-led Senate’s refusal to seat any justice chosen by President Barack Obama in 2016 and by the racist, nativist, anti-Semitic, and sexist chicanery of Donald Trumpism, treats the pregnant private zone as constitutionally unimportant. The elite Court’s majority implies that it is important only to protect potential life, not to shield fully alive persons from the tyrannies, hypocrisies, and moralisms of their governments.
Worse yet, because the Texas law now being implemented gives private individuals the right to enforce penalties for performing or helping someone obtain an abortion, the Court fails to acknowledge the inevitable harms to pregnant people from nosy or nasty neighbors, and infuriated or abusive ex-lovers. While enforcement is supposed to target the abortion provider rather than the patient, because the statute is loosely written (anyone who “aids or abets” an abortion is liable), almost certainly abortion seekers will be put at risk. The five justices issued an abrogation, what feels like an attempted erasure of feminist psychoanalyst Juliet Mitchell’s “Longest Revolution”—a historic, global mass movement against the patterns, pieties, and power grabs we know as the sex and gender systems.
Here’s what I heard the Supreme Court say late-night September 1: Take that, exhausted activists! Did you really think you’d stem the tide against the tsunami of litigation unleashed by a conservative religious and political coalition with ceaseless monetary resources? Go cry, idealistic undergrads!! Don’t even imagine an adult life of dignity and respect. The most elite lawyers in the country don’t care if you get raped or molested; if you scream, they won’t hear you, and if you organize to change the law, they will nullify your work.
I am, perhaps, sentimentally attached to this one frail reminder of a time when feminism was ascendant, and compelled the most troglodytic of our political institutions to answer its demand. You may think I didn’t get the memo about the limitations of Roe, or missed the heap of writing on what the opinion should have done or said (as if the mass of activists, the abortion seekers, doctors, priests, rabbis who risked jail time defying the old state laws had any sway over that). Have I forgotten the unforgivable things some foes of criminal abortion laws said about Black people, immigrants, and disabled people? Or the ways access to abortion was already, direly, compromised before September 1, 2021, including in Texas?
No, I didn’t forget. As a historian, I’m in the remembering business. And yes, as many have argued, Justice Harry Blackmun’s opinions in the 1973 abortion cases were not everything we would wish them to be. Neither, of course, was the work of Justice Sandra Day O’Connor et al. in Planned Parenthood v. Casey (1992), which affirmed Roe’s central holding but offered a different analysis than Blackmun’s and permitted states to constrain the ability to abort more broadly than was allowed by Roe. Anyone who thinks that post-1973 Supreme Court jurisprudence has prevented devastating harms to pregnant people and those of us on the downside of gender and sexual hierarchies, especially those who are also disabled, Black, brown, or poor, hasn’t been paying attention. The Court’s willingness to backtrack on the pledges it made in Roe and Doe was evident as early as 1980, when a 5-4 majority ruled that the Hyde Amendment prohibiting states from using federal Medicaid funds for abortions was not even a little bit violative of the fundamental right to privacy affirmed less than a decade earlier.
The victories of the movement to decriminalize abortion were definitely products of what the great legal scholar Derrick Bell called “interest convergence,” alliances between people who believed in social progress for good reasons and those who supported it for creepy reasons. Many of the whites who fought in the 1960s and 1970s to undo a century and more of state-level abortion regulation believed that certain people, marked by race, class, physical and cognitive ability, and national origin, were better fitted to parenthood than others. My research has revealed plenty of troubling claims advocates used on their way to achieving historic wins against the injustice of illegal abortion. Lawrence Lader, for example, the leading journalist advocating legal abortion in the 1960s and a founder of NARAL, pressed readers to “face the fact that” overpopulation made compulsion of some kind in the matter of birth control “not only healthy, but imperative.” Harriet Pilpel, attorney and advocate with the ACLU and Planned Parenthood, opposed involuntary sterilization but argued that voluntary sterilization should be made widely available “especially to the poor and underprivileged.” I chronicle the finitude of the mid-20th-century movement for abortion decriminalization, the movement that ultimately birthed Roe. Most notably, it failed to demand that people have the wherewithal to bear and raise children, as well as to hold off from parenting, when they decide to.
In the middle and late 1970s, BIPOC (Black, Indigenous, and people of color) activists and white socialist feminists challenged mainstream women’s and reproductive rights organizations on this point directly. Thinking of the “Mississippi appendectomy” (involuntary hysterectomy) Fannie Lou Hamer and many other women experienced, they asked Planned Parenthood and the National Organization for Women to join their efforts to control sterilization abuse. New York City NOW joined, but national NOW and Planned Parenthood did not. I think the movement would have been politically stronger, and just a better movement, if it had learned from those challenges and expanded its membership and agenda dramatically.
These insights complement my grief and anger over the harsh refusal of my personhood that resounds in last week’s decision. They do not negate them. Abortion decriminalization was a desperately hard-won achievement. Its true authors were the hundreds of thousands of people who continued to seek and have abortions despite the consequences, which included financial debt, fear and distress, insult, sexual abuse, coerced sterilization, physical injury, and even death. It became a feminist demand when NOW emerged in 1966 as a civil rights organization for women, and members such as radical Black attorney Florynce Kennedy insisted that access to abortion be understood as a gendered civil right. The radical, socialist, and BIPOC feminisms of the 1960s, ’70s, ’80s, and ’90s all embraced the cause of legal abortion. Their leaders didn’t want abortion rights only, but they certainly didn’t want to write abortion out of their politics.
I don’t know if the war against oppressive gendered and sexual authority is the longest that’s ever been waged. I do wonder if I’ll glimpse its resolution in my lifetime. How to fight despair? Join people and groups preparing for the skirmishes and battles ahead, including abortion providers, advocates, funds that help people cross state lines for care when they need to, and those who work for reproductive justice, expanding the scope and integrity of the movement for reproductive rights. Study and, when possible, undo the lapses of our predecessors. But remember their strengths and their victories, too. Cherish the flame that has burned through Roe and Doe, despite the Supreme Court more than because of it. By its light you may see something that inspires you to fight again.
Thanks to David Garrow and Daryl Fort for very helpful comments on an earlier draft.
