Where does the US go once abortion is no longer protected?
Roe v Wade is almost certain to be overturned next month, and Republicans are already working to abolish more civil rights
Since US Supreme Court justice Samuel Alito’s draft of a majority decision overturning the landmark abortion rights ruling Roe v Wade was leaked on 2 May, concerned Americans have been wondering how things will play out when the decision becomes official – which it almost certainly will do, probably in June.
A quick review of what Republican politicians and anti-abortion activists have said about their plans should be enough to convince anyone who cares about civil rights that those of us who have been sounding the alarm about a broader onslaught on rights were correct to do so.
The Roe decision relied on a constitutional right to privacy derived from the Fourteenth Amendment to the US Constitution, and with that reasoning rejected, other rights that depend on privacy are vulnerable. The situation is grim, not only with respect to reproductive justice, but also for LGBTQ rights and racial justice.
Attacks on birth control
An immediate issue is the extent to which the so-called ‘trigger laws’ that many Republican-governed states have ready to pass immediately that Roe is overturned will affect access to birth control. Many Christian Right ideologues and their fellow travellers consider some forms of contraception to be “abortifacients” (substances that induce abortion).
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For example, a local news outlet in Kansas City, Missouri recently reported that “Under Missouri’s trigger law, Plan B [the morning-after pill], IUDs and possibly hormonal birth control could be banned because the law defines an ‘unborn child’ to include fertilization or conception.” Reproductive justice advocates in Missouri are arguing that the trigger ban bill, if passed into law, should not be understood to ban any form of birth control – but it is far from clear if that argument will prevail.
Louisiana’s state legislature has already advanced a ‘fetal personhood’ bill, which declares abortion to be “homicide”. State-level bills of this nature have been advanced by right-wing radicals previously but only now, once Roe is overturned, are they likely to pass, or – as in the case of the Louisiana bill, which contains defiant language about past Supreme Court decisions – perhaps even before.
‘Foetal personhood’ laws would almost certainly encompass forms of birth control that prevent the implantation of fertilised eggs, which they define – absurdly – as persons. Fertility treatments such as IVF seem certain to be affected too, since the process produces unused fertilised eggs.
States that move to criminalise abortion this summer may also attempt to enforce their theocratic laws on residents who seek abortion care outside the state. And residents of Democrat-supporting ‘blue states’ are unlikely to be safe for long.
Despite their decades of using ‘states’ rights’ rhetoric to attack Roe and other key civil rights precedents, Republican politicians are already working openly towards a federal six-week abortion ban – a horrific prospect that will probably become a reality if they take control of both houses of Congress and the presidency in 2024.
Republican operatives and Christian Right activists have also made it clear that they are coming for contraception head on, and not only indirectly by attempting to define birth control as ‘abortion’. At some point, the Supreme Court’s 1965 decision in Griswold v Connecticut – which established that married couples could buy and use contraception without government interference – will probably be overturned by the Roberts Court (named for the current chief justice, John Roberts), which many consider illegitimate given its partisan packing with right-wing extremists.
And that’s not all.
Same-sex and interracial marriage under threat
Given that Alito’s leaked opinion explicitly stated that the rights of individuals to enter into same-sex marriages and to participate in private, consensual homosexual sex acts are not “deeply rooted in American history”, it is impossible to believe that no Republican politician will manoeuvre to retry those rights before the radicalised Supreme Court, sadistically throwing people in same-sex marriages into chaos and bringing back laws against “sodomy”, at least at state level.
According to reporting by Religion Dispatches, as soon as Roe is officially gone, Texas’s governor and attorney general are planning to challenge Obergefell v Hodges, the 2015 Supreme Court precedent that established same-sex marriage nationwide.
Meanwhile, on matters of racial justice, Republicans have been letting their masks slip in their fevered drive to forcibly drag America back to the 1950s. In late March, Mike Braun, a Republican senator who, unfortunately, hails from my home state of Indiana, was asked whether, given his position on abortion, he “would be OK with the Supreme Court leaving the question of interracial marriage to the states?”. He replied very bluntly: “Yes. I think that that’s something that if you’re not wanting the Supreme Court to weigh in on issues like that, you’re not gonna be able to have your cake and eat it too. I think that’s hypocritical.”
While Braun later claimed to have “misunderstood” the question and insisted that he is opposed to racism, the video footage of his very clear and direct response to a very clear and direct question makes it hard to take his later retraction at face value. Despite Republican attempts at message control on race, some Americans in interracial marriages are expressing concern that the Roberts Court might very well overturn Loving v Virginia, the case that legalised interracial marriage nationwide in 1967.
On 4 May, Texas governor Greg Abbott, an arch-conservative who often stirs up anti-immigrant sentiment, announced that he would seek to have the Supreme Court revisit the 1982 decision in Plyler v Doe, which ruled that America’s public schools must educate undocumented children. He later tried to downplay his remarks as primarily a dispute about whether state governments or the federal government should finance the education of undocumented immigrant children, but the racism beneath the veneer of a fiscal dispute is clear, especially since primary education is funded almost entirely at the state and local level in the US (a problem that creates its own inequities, but that’s for another column).
Racism accompanies and often underlies right-wing attitudes in the US towards sex, gender, sexuality and reproduction
Social observers have long understood that white supremacism and patriarchy are inextricably intertwined in American conservatism, and that racism accompanies and often underlies right-wing attitudes towards sex, gender, sexuality and reproduction. Indeed, conservatives’ proposed policies in this area are often a proxy for segregationist sentiments that can no longer be uttered in polite society.
In fact, the modern religious Right came into its own defending racial segregation at Bob Jones University, a fundamentalist Christian institution in South Carolina, on the basis of “religious freedom”. It did not begin stoking radical anti-abortion views until the late 1970s, by which time overt racism had become impolitic, and a more publicly acceptable focus for organising was needed.
Now – with Roe about to go, and with it the legal scaffolding that was set up to protect a wide variety of civil rights – it seems to me that all bets are off as to just how bad things can get in the US for women, queer folks, racial and ethnic minorities, and members of other marginalised groups.
No civil right is truly safe as long the current politicised Supreme Court continues to radically reshape the law to conform to the goals of authoritarian white Christians.
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