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Take Abortion Out of the Court’s Hands

Abortion rights shouldn’t be at the mercy of the judiciary. We need federal legislation codifying Roe v. Wade — and Democrats need to buck up and eliminate the filibuster to pass it.

Our abortion rights shouldn't be at the mercy of the Supreme Court in the first place. (Fred Schilling / US Supreme Court)

The Supreme Court’s December 1 hearing on Mississippi’s fifteen-week abortion ban confirmed what everyone had already guessed: anti-abortion justices will throw abortion rights on the scrap heap when they hand down their decision next summer.

The three judges who support abortion rights were reduced to appealing to the court’s reputation. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor asked early in the hearing.

Chief Justice John Roberts, perhaps the only anti-abortion justice concerned with preserving the court’s legitimacy, querulously noted that only the fifteen-week ban, not banning abortion as a whole, was before the court. The five other hard-right appointees clearly don’t care.

That distinction is technical anyway. The Mississippi law bans abortion at and after fifteen weeks, but if the court rubber-stamps the law, it will break up the legal regime set up by Roe v. Wade and later decisions that prevents states from substantially hampering access before viability, now twenty-two to twenty-four weeks. If the court blows away that standard, anti-abortion state governments can argue that any pre-viability ban is allowable.

The cautious route would be to leave the Mississippi law intact and let other states appeal their six-week bans and outright bans. But aside from Roberts, the court’s anti-abortion majority appears to have no interest in gradualism.

If the court allows outright bans, those laws will immediately go into effect in twenty-one states. In the South, only Florida, North Carolina, and Virginia have no post-Roe bans in place. According to a Guttmacher Institute analysis, twenty-six states are “certain or likely” to ban abortion if the court permits it.

With the situation sharpening into focus, it’s tempting to feel hopeless. But despair isn’t an option. Instead, we should think more creatively and expansively about how to secure and protect abortion access throughout the country, beginning with the question of why our abortion rights are at the mercy of the judiciary in the first place.

Mercy of the Court

In response to an outpouring of women’s liberation demands, the New York State Legislature legalized abortion on demand in 1970. Organizers expected the law would eventually be mirrored by federal legislation. Instead, in 1973, we got Roe v. Wade, a sweeping decision that invalidated state statutes around the country that had outlawed abortion since the 1860s.

But the court also provided several avenues to restrict abortion services, starting with approval of the Hyde Amendment. This appropriations rider banned federal funds going to abortion, cutting abortion access to those covered by Medicaid. Medicaid paid for three hundred thousand abortions a year from 1973 to 1976. After Hyde went into effect, it covered just a handful. Now an abortion procedure costs $530 on average.

More recently, right-wing state legislatures have been outdoing each other in creating roundabout ways to make abortions harder to get. They’ve been zapping clinics with draconian requirements and forcing staff into bureaucratic catch-22s; they’ve been mandating that doctors recite lies to their patients and requiring unnecessary ultrasounds and onerous waiting periods. Occasionally, a restriction will end up before the Supreme Court, which will render judgment: yes to parental consent, yes to waiting periods, no to the D&X abortion ban, then yes to the D&X ban, no to impossible-to-meet clinic restrictions, and so on.

It’s a bizarre way to regulate a medical procedure that 30 percent of women need. It didn’t have to be this way: Democratic Congresses could have passed legislation protecting abortion rights starting in the 1970s. Leaving abortion up to the court has been a political decision — a disastrous one that has finally reached a dead end.

In September, the US House passed the Women’s Health Protection Act on a party-line vote. The law would provide for the right to abortion before viability all over the country, codifying Roe. It hasn’t been considered in the Senate yet, and certainly won’t pass without Democrats changing the filibuster rule. In response to the Supreme Court hearing, Bernie Sanders stated, “We must pass legislation that codifies Roe v. Wade. . . . And if there aren’t sixty votes to do it, and there are not, we must reform the filibuster to pass it with fifty votes.”

Couldn’t the court just strike the new law down? Abortion was largely legal in the United States from its founding until after the Civil War. There were state laws to prosecute practitioners who killed their patients through incompetence. But until “quickening,” when the fetus can be felt to move, around eighteen or twenty weeks, abortion was unregulated. So it would be hard for judges — especially your originalists — to argue that there is something in the Constitution outlawing abortion.

This is why adding a “human life amendment” to the Constitution has been on the agenda of the Right for decades. It’s one thing to argue about whether the Constitution contains a privacy right that includes abortion: the Roe court said it did, this court will say it doesn’t. But it would be another thing to argue that something in the Constitution allows states to override federal legislation in order to force all pregnancies be carried to term.

The legislative route has always been a possible strategy for the abortion rights movement, and current events suggests it would have had advantages over the judicial route. With the Supreme Court strategy facing imminent defeat, it’s time to finally change course.

Pass the Act

All that said, abortion rights are not going to be won or lost through established channels alone, judicial or legal or otherwise.

As in earlier eras, abortion is part of the struggle of the great majority to control our lives. In the 1960s, the women’s liberation movement was strong, radical, and critical of the liberal power structure. The US establishment was gripped by a bipartisan panic over high birth rates while contending with socialist societies that provided free abortions in hospitals, while US women were forced into back alleys for extortionate prices.

Now there is establishment panic about low birth rates, the lowest in US history. And feminist organizations are largely tied to corporate foundations and a Democratic Party that provides a veneer of feminism through the professional advancement of select women. Female faces in high places have largely failed to advance freedom for women as a whole. They’ve left our reproductive working conditions — childcare, health care, paid leave, wages, union rights, and work hours — to the tender mercies of the private sector. Our private health insurance system means we pay the costs of birth control, abortion, and childbearing out of our meager pay. Real freedom lies in guaranteed health care that covers everything, and an economic system arranged to maximize human flourishing.

What has been the Democratic Party establishment’s response to the court at this dangerous juncture? They’ve been gloating about the possible effect of a summer court decision on the midterm elections. “ELECT DEMOCRATS TO PROTECT ABORTION RIGHTS,” blared the Democratic Senatorial Campaign Committee on Twitter. Their strategy has gone from “Vote for us to save the court” to “Vote for us so we can save you from the court.” These Democrats apparently believe further immiseration of voters will lead to loyalty to their party. It doesn’t, as demonstrated by four decades of voter immiseration and resulting detachment from either party.

It’s time for the Democratic establishment to put its money — considerable amounts of which have been raised on pro-choice messaging — where its mouth is. We know that the court is going to allow states to ban abortion because it already has in Texas. Many people will be forced to have children they do not want and cannot afford while Democratic Party higher-ups use our desperation to polish their brand.

The Women’s Health Protection Act would stop the bleeding. The time to pass it is now.