Mothers’ Day came this year with a cruel twist of fate. In recent weeks, Georgia, Ohio, Kentucky, and Mississippi have all voted to ban abortion six weeks after a pregnant person’s last menstrual period. The draconian laws are known as “heartbeat bills” because six weeks is supposedly when a fetal heartbeat can be detected. Alabama dropped even the six-week pretense, voting yesterday to bar abortion entirely except in cases of a threat to a pregnant person’s life or a lethal fetal anomaly. Either way, each of the bills effectively prohibits abortion, since most women do not know they are pregnant at six weeks.
The laws also criminalize third parties, like doctors, who perform surgical abortion procedures or who prescribe medication abortions. The goal is to spark legal challenges in lower courts that would eventually culminate in a Supreme Court case reconsidering Roe v. Wade (1973).
The spate of new laws has unleashed a flurry of legal speculation: Will the legislation criminalize pregnant people who induce their own abortions or who miscarry? Will it only criminalize third parties? Is there enough disagreement among lower courts that the Supreme Court will hear the cases once they are challenged?
These are important questions if we want to figure out what exactly is going on. They are also important for informing patients of their rights in this unfolding crisis. The answer to all of them, however, is less than satisfying: “maybe.”
What’s important to remember now is that the law is not a neutral, apolitical set of statutes and rulings. It evolves out of the complex relationship between its own precedents, social norms, and the struggles that produce both. In fact, the reproductive justice movement can learn something from the recent crisis over the Janus “right to work” decision.
Handed down in 2018, Janus v. AFSCME overturned forty years of precedent by ruling that public sector unions could not collect fees from nonunion members that they represent at the bargaining table. The case threatened to financially starve unions out of existence.
In the lead-up to the Janus decision, many public sector unions had accepted their fate. They husbanded their resources and cut their losses, recommitted dues-payers in the largest unions and de-prioritized other unions.
Likewise, many feminists are now preparing for a “Post-Roe America.” The conventional wisdom says that Roe is likely to be overturned, and the legal strategy to protect abortion rights through the courts is in full swing. A few states, like New York, have passed legislation protecting abortions rights within their borders. In the most repressive states, legal activists in the nonprofit sector are reassuring us that these draconian laws will not take effect until 2020, and that they have time to challenge them in court. Others argue that women can still order misoprostol online, a medication that induces abortion, and that it can be made more widely available.
These efforts, too, amount to cutting existing losses.
Fortunately for the labor movement, the impact of Janus was not what the Right had planned. Public sector teachers rebelled across the country, striking en masse and breathing new life into the labor movement. In many places, they won. Clearly, the Supreme Court need not have the last word.
The same is true for the “heartbeat bills.” If we want to protect our rights, then we need to extract ourselves from the spiral of neoliberal legal despair, take a step back, and ask a few fundamental questions: Why is abortion central to gender liberation? How were abortion rights won in the first place? And why have we been suffering the slow, painful demise of the reproductive rights movement for most of our lifetimes?
Start with the first question. Simply put, gender liberation is not possible without safe, free, and equal access to abortion. Abortion is health care, so we cannot provide equality in health care services without equal access to it. We cannot fight against workplace discrimination without abortion rights because pregnant people are more vulnerable to labor market competition. We cannot fight against forced sterilization without abortion rights because when pregnant people do not have the ability to determine their reproductive lives, it is impossible to hold anyone accountable for abusing them. We cannot fight sexual violence without abortion rights because doing so perpetuates the myth that rape is rare and separable from the common experiences of people seeking abortion. We cannot fight for trans rights without abortion rights because forced birth disciplines pregnant people into binary gender roles as determined by their reproductive capacities. Abortion is a thread that weaves together very different experiences of gender oppression.
The “pro-choice” rhetoric of the liberal reproductive rights movement has obscured parts of this argument for a long time. “Pro-choice” was itself a liberal pivot that appeared in the 1980s at the onset of the anti-feminist backlash. It was, and is, the rhetoric of defeat. The alternative was “Free abortion on demand” —a women’s liberation movement slogan that did not hogtie itself to patient privacy rights or a restricted notion of individual autonomy, as in Roe (which legalized abortion on the basis of a patient’s right to privacy with their doctor in making a medical decision).
Inspired by the Civil Rights Movement, the women’s liberation movement used civil disobedience to push for the right to control their bodies. They took to the streets, held occupations, and learned to provide abortions themselves. The point was to normalize abortion, make it about the well-being of entire communities, and challenge a political culture that saw (and continues to see) gender issues as private, personal issues rather than public and political.
The point was to make abortion visible, which is why “consciousness raising” so often involved opportunities to “Shout your abortion!” That was how we won abortion rights in first place — not through tepid compromise or mealy-mouthed rhetoric.
How to Fight
Many left-wing critics of liberal reproductive rights politics can agree that the hyper-focus of nonprofits like Planned Parenthood and NARAL Pro-Choice America on defending Roe in the courts is a frustratingly narrow strategy. Roe guaranteed privacy, not access. It guaranteed choices, not good choices. It (formally) guaranteed the right not to have children, not the right to have children in a safe and supportive environment. Roe gave pregnant people rights, not agency. Roe did not deliver justice and its logic of privacy has led us into a situation where abortion is, once again, shrouded in the mystery and shame of the “private” sphere. Abortion now seems anything but normal at best, horrifying and murderous at worst. Today’s crisis shows clearly that liberalism is not the best defender of liberal rights, even on its own terms.
Still, there’s disagreement on the Left about the root of the political impasse of the pro-choice framework. For some, focusing on abortion is itself the problem. These critics argue that we should broaden the scope of reproductive politics, because reproductive justice is not just about abortion. Yet ironically, the same nonprofits that are the object of the leftist criticism have since adopted the same argument. In an attempt to retain Title X funding, for instance, Planned Parenthood now stresses all the services it provides other abortions.
But the Right is not coming after Planned Parenthood because it provides pap smears or because it screens for STDs. They are coming after Planned Parenthood because it provides abortions and there is no organized, independent opposition to fend off such attacks. Pro-abortion activist organizations outside of the nonprofit world are few and far between.
This is the impasse that the feminist left must overcome. The problem is not abortion, but how we fight for it. Liberal nonprofits do not have the right to control our movement from the top down. Instead of ceding political ground, we can ask how the women’s liberation movement went from “free abortion on demand” to “pro-choice” and chart a different course.
Pro-abortion activists can learn a lot from striking teachers on this count. Let’s occupy state capitols. Let’s take freedom rides to Ohio, Kentucky, Georgia, Mississippi, and Alabama to defend our clinics. Let’s organize labor in the health care industry. Let’s start to imagine demands like publicly funded abortion insurance with a federal reproductive health care bill of rights that protects patients from sterilization abuse. Most importantly, let’s raise our expectations from the bottom up and reconnect abortion to the goal of liberation — where it belongs.