The Supreme Court is set to review a case that could overturn the abortion-rights decision for good.
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Pro-choice groups have been decrying the end of Roe v. Wade for decades. Some of them were called “hysterical” for defending a federal law that was supposedly rock-solid.
“People in the abortion-rights movement have been talking about the end of Roe v. Wade since Roe v. Wade,” says Amanda Reyes, founder of the Yellowhammer Fund, the only official abortion fund in Alabama. “What we were told immediately after was: We need to be vigilant.”
This week, the 1973 landmark Supreme Court ruling faces overhaul by a minority of anti-choice leaders when the case June Medical Services v. Russo is heard on March 4 in front of the newly anti-abortion Supreme Court. June Medical Services v. Russo is the first abortion-related case to be heard by a majority conservative Supreme Court, thanks to Donald J. Trump’s recent appointments of Justices Brett Kavanaugh and Neil Gorsuch.
The case is challenging a Louisiana law that requires abortion doctors in Louisiana to have admitting privileges at a hospital within 30 miles of the abortion site, which would effectively close almost all Louisiana clinics. The Supreme Court shut down similar restrictions in Texas in 2016 in the case Whole Woman’s Health v. Hellerstedt, but the Fifth Circuit Court of Appeals upheld the law in Louisiana.
In January, 207 members of Congress filed an amicus brief to the Supreme Court requesting that they “consider” overturning Roe, which made abortion a constitutional right. Doing so would pave the way for the strict abortion law that has been in the state since 2014.
The brief also asked the Court to consider overturning 1992’s Casey v. Planned Parenthood, because it upheld Roe v. Wade, but also allowed state restrictions so long as they don’t place “undue burden” on patients.
The meaning of “undue burden” has been hotly debated for decades.
Lizz Winstead, founder of the performance-based pro-choice group Abortion Access Front, said that if anyone is surprised over the imminent fall of Roe, they are also responsible for it.
“Everybody is complicit,” says Winstead. “Media is complicit because they don’t cover it. People are complicit because they don’t want to look at the totality and importance of what it means to have bodily autonomy … People have been saying to me: ‘I can’t believe you’re still fighting this fight.’ I say, ‘I can’t believe you’re not fighting it with me.’”
Winstead and other pro-choice leaders argue that, for decades, Democrats have been playing nice with the anti-abortion movement and taking Roe v. Wade for granted. Now, women—specifically poor women, who account for 75 percent of abortions—are paying the price.
“This is something that doesn’t affect privileged people, and if it doesn’t affect them, it doesn’t affect them,” Reyes says. “Meanwhile, the poor women, the Black women, the domestic workers—they can’t wait around. They need access now.”
The U.S. is closer than ever to losing Roe entirely, even though 61 percent of Americans believe that abortion should be legal in all cases, according to the Pew Research Center.
Losing Roe v. Wade would have cataclysmic consequences. The absence of the federal ruling would unearth a host of antiquated state laws that criminalize abortions. Rhode Island, Alabama, North Dakota, and more states all have old laws on the books that would imprison women for getting them. Women in Mississippi and West Virginia could be sentenced to up to ten years in prison.
“It would cause a massive amount of suffering for the people who are the most marginalized,” Reyes said.
It didn’t start with Trump.
Trump kicked the anti-choice agenda into high gear, to be sure.
The anti-choice lobby supported Trump as a “marriage of convenience,” according to NARAL communications director Kristin Ford. NARAL, a pro-choice lobbying and advocacy nonprofit, was formed in the late 1960s in response to rising anti-choice sentiment.
Whereas seasoned candidates had political baggage, the untethered Trump could commit completely to filling the courts with anti-choice judges without personal reservations, Ford says.
Since his election, state courts have been quietly filled with over 100 anti-choice Trump appointments, leading to a near-total abortion ban attempt in Alabama, six-week ban attempts in Kentucky, Ohio, Georgia, Mississippi, and Louisiana, and an eight-week ban in Missouri. As these states fight challenges from the women of color reproductive justice organization Sister Song, the ACLU and Planned Parenthood in federal court, Roe v. Wade remains the only thing standing in their way.
Trump has chipped away at Title X by denying funds to institutions, such as Planned Parenthood, that refer patients for abortions. Those funds were previously earmarked for STD prevention, cancer screenings, and contraception for low-income women and poor women.
Trump’s 2020 campaign received a $52 million boost from the anti-abortion juggernaut group Susan B. Anthony List in January, and he became the only president ever to attend and speak during the March for Life.
The Kavanaugh appointment ramped up the anti-choice movement to a fever pitch, and activists are seizing the day. But, it didn’t start with Trump.
“This has been a decades-long campaign by the anti-choice movement,” says Ford. “It’s been a really strategic, sophisticated campaign over many years to chip away at Roe v. Wade. We led the charge on it. And many people called us hysterical, figuring that Roe v. Wade is settled law.”
Roe v. Wade was initially passed in 1973 as a means of de-politicizing abortion once and for all. Catholics opposed abortion, but Evangelicals and the Southern Baptist Church were largely indifferent to the issue. Much of the Republican Party was pro-choice, including Alabama’s segregationist governor George Wallace, who said that single Black women were “breeding children as a cash crop.”
But the passing of Roe put a spotlight on abortion, and a handful of conservative leaders, including Evangelical Francis Schaeffer, began equating the practice with female promiscuity and the “murder of children,” a belief system that expanded to Christianity at large, not just Catholics. The Republican Party was more amenable to the anti-choice movement than Democrats, so Richard Nixon used it as an election stance to win working-class white votes.
It worked. Abortion became a tool in subsequent presidential elections. Anti-choice activists grew in power and opportunistic savvy in tandem with the Republican Party, including the vehemently anti-choice Ronald Reagan.
“It’s a very duplicitous agenda,” Ford says. “In some ways it’s a very savvy rhetorical dance where they’ve effectively convinced people that they have deep moral reservations, when it’s about political control.”
The pro-choice movement also grew, thanks to groups like NARAL, Center for Reproductive Rights, A Is For …, and national and local abortion funds that cropped up across the U.S. Groups led by people of color recognized that reproductive justice and access to medical care, not just abortion, were uniquely Black issues that couldn’t be supported by the mainstream white women’s movement (Black women still suffer a disproportionate maternal mortality rate in the U.S.). A group called Women of African Descent for Reproductive Justice wrote a full-page statement in the Washington Post and Roll Call in 1994.
“Reproductive freedom is a life-and-death issue for many Black women and deserves as much recognition as any other freedom,” the statement read, asserting that comprehensive reproductive health “must include strong anti-discriminatory provisions to ensure the protection of all women of color, the elderly, the poor and those with disabilities. In addition, the plan must not discriminate on the basis of sexual orientation.”
Reyes argues that, despite many threats, Republicans may never completely overturn Roe, or else they’d risk losing the most important tool in their election kit.
“I feel like yes, it is [the Republican Party’s] goal to overturn Roe, but it needs to keep being a goal for them, because they have so little else,” Reyes says. “It’s an election year. They have to pull up something to get their base going.”
A future forged by extremists.
Anti-choice activists who protest in front of abortion clinics have become more emboldened over the years. Reyes has confronted them outside of a clinic in Tuscaloosa.
“Their whole mindset is very much like that of a domestic abuser,” says Reyes. “It’s less about life when you get down to it. This is about misogynist power and control. They honestly see pregnancy at the end of the day, and childbearing, as a punishment for having sex. You get into these conversations and ask about children who might suffer in poverty, and they say, ‘She shouldn’t have opened her legs in the first place.’ All roads lead there.”
AAF often confronts these activists head-on. For example, Winstead had a face-to-face confrontation with evangelical Jason Storms in Madison, Wisconsin, during his anti-abortion rally in July.
“People always said, ‘ignore them and they’ll go away,’ but if you don’t examine who they are and confront who they are, and constantly remind people that they exist and that they’re in the mainframe of conservative politics, people will brush them off as fringe,” Winstead said. “But they’re the ones making the decisions … It’s time to get loud.”
Ford is encouraged by recent mobilization after Trump’s election. The 2018 midterm election saw the rise of pro-choice, queer, and women candidates. The Democratic Party is on the rise in red states like Kentucky and Virginia.
“People are on high alert and fired up,” says Ford. “We saw women voters make the difference in 2018. Yes, it is hard to stay on top of everything, and there are egregious headlines about Trump every day. But people also understand why they need to turn out and vote against him.”
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