Post‑Roe struggles over abortion rights – and what they mean about US democracy

Susan Pashkoff writes about the ongoing attacks on people's right to control their bodies in the United States.


Source > Daily Kos

The overturn of Roe vs. Wade and Casey vs. Planned Parenthood by the Supreme Court of the US (SCOTUS) on June 24, 2022, had several immediate effects.

The elimination of a 50-year-old civil right by a politically appointed, unelected SCOTUS had an immediate effect on women; their right to bodily autonomy was no longer guaranteed in the US as a whole. Being reduced to second-class citizenship by a politically appointed body whose majority supports a right-wing judicial philosophy Originalism, which seeks to interpret the US Constitution consistent with what they believe were the “motivations of the founding fathers”, enshrines an idea of law that is immutable rather than adaptive to changes in society.

It traps judicial interpretation in the 18th Century as though society has not changed; so the law becomes a bizarre absolute; independent of historical and societal development and transformations. Combined with other recent decisions since the appointment of Amy Coney-Barrett, Dobbs exploded the fantasy that somehow the SCOTUS was independent of (and hence transcended) political machinations.

The majority opinion in Dobbs vs. Jackson’s Women’s Health Organisation decided that there was no constitutional basis for Roe and Casey (specifically, the constitution doesn’t mention abortion and the 14th Amendment does not guarantee it), that the right to abortion was not consistent with any historical precedent or legal opinion around abortion rights at the time of the passage of the 14th Amendment, and as such, these decisions “short-circuited the democratic process,” bypassing both state and federal legislatures. They sent the political struggles over the right to abortion “back to the states,” supposedly to have a democratic debate on abortion rights.

The fact that a SCOTUS majority opinion was based around historical legal precedent (both in Britain and the US) relating to abortion laws in the 17th and 18th centuries in Britain and the 19th century in the US that related to specific religious doctrines (e.g., the “quickening” is a bizarre Christian notion about when the soul enters the body of the foetus) is shocking.

There is not an established church in the US (unlike Britain) and this is specifically stated in the US Constitution. Now, the current interpretation of the Establishment Clause, ensuring the separation of church and state and the protection of minority religions as well as the right to not believe in god/gods, seems to be a clear target of this right-wing dominated SCOTUS. Is there a new interpretation of the Establishment Clause of the First Amendment of the Bill of Rights in the works? Recent decisions like Carson vs Macon (June 21, 2020) allowing public funds to be used to cover private religious schools; the Kennedy vs Bremerton School District (June 27, 2022; concerning prayers conducted on the 50-yard line by a football coach working for a state school); and the Dobbs vs. Jackson’s Health Organisation indicate that this may be the case.

We are quite used to laws and legislation that protect the interests of the ruling class (e.g., property law, tax laws, elimination of regulations against pollution), and this recent move towards a tyranny of the minority based on the religious beliefs of the most extreme Christian fundamentalists is more than a reactionary turn; it sets the stage for further restrictions of even the limited democracy that exists in the US.

National Issues and Democracy

From its beginnings (and contrary to the propaganda), democracy has always been limited in the US. Slaves and Native Americans were counted in the Constitution as partial human beings in order to ensure more representatives in states which utilised enslaved people. This was enshrined in the Constitution; thus giving slave states more representations/legislators despite neither slaves nor Native Americans being viewed as people and allowed to vote.

Property qualifications meant only some white men could vote; while women did not have voting rights in the original US Constitution. Even the creation of the Senate (where each state has 2 seats irrespective of the population) to provide checks on the power of the House (see The Federalist Papers, especially “The Senate” by Alexander Hamilton) and the creation of the Electoral College ensured that the popular vote does not determine who is elected President.

Fears of actually empowering the population by granting universal suffrage (despite the use of Paine and Locke for propaganda purposes during the American Revolution) have been a long-term struggle for blacks, women, and those without property, and their suffrage faces a continuing attack.

Systemic and structural racism has always limited American democracy and it has been regularly weaponised against Black Americans. Following Reconstruction, terror by both the state and white supremacists, Jim Crow Laws, and gerrymandering enabled southern Democrats to systematically undermine black suffrage in the US. The Civil Rights movement forced the passage of the Voting Rights Act (1965) under the Democrats, causing the abandonment of the Democratic Party by white supremacists (politicians as well as citizens).

The weakening of the Voting Rights Act by the courts and the rightward shift of Republicans have revived overt attempts to suppress black and Democratic voters. To remain in power, Republican-dominated state legislatures again use voter suppression laws and gerrymandering to undermine the power of people of colour and Democratic voters. It is debatable whether elected state and federal representatives can actually be said to reflect the “will” of the voters, further undermining the belief of citizens that candidates and elections themselves reflect their concerns. 

Although the overturn of Roe and Casey was evident from SCOTUS oral arguments and the leaked draft of the SCOTUS majority opinion, President Biden and Congressional Democrats literally sat on their hands before Roe was overturned. While the Women’s Health Protection Act protecting federal abortion rights passed the House of Representatives, it failed in the Senate due to a filibuster. The refusal to eliminate the filibuster (another product of Jim Crow Legislation), which would have allowed passage by a simple majority, means there is no Federal law to protect the right to abortion.

AOC’s suggestions for allowing abortions on federal land in states where abortion is banned or extremely limited were ignored by Biden; recently, veterans’ access to abortion at federal Veteran Administration centres was granted under limited circumstances still governed by the Hyde Amendment (i.e., the life of the mother, rape, and incest), which has not been overturned.

Despite the claims of the SCOTUS that the decision over abortion will be sent back to the states, the truth has come out, and if anyone is surprised, their heads have been buried deep under the ground. When the draft majority decision was leaked in May, Mitch McConnell said a federal abortion ban was possible but would not alter the filibuster to enable it.  Despite overwhelming support for the right to abortion in the US, on September 13 Lindsay Graham introduced a bill calling for a national 15-week abortion ban.

Despite the bill being named ‘‘Protecting Pain-Capable Unborn Children from Late-Term Abortions Act,” there is no medical reason for a 15-week limit, nothing happens at 15 weeks that demarcates it in terms of gestation.

Then Graham demonstrated what we already knew: that the aim of the overturn of Roe and Casey was for a national ban rather than the bullsh*t that the states would determine abortion access (yes, they were lying, Quelle surprise).

He is trying to change the perception of what a late-term abortion is by decreasing the political (not medical) definition to mean that shorter and shorter periods of access will exist.

As Natasha Lennard points out, the medical definition of foetal viability is not until 24 weeks, so what does 15 weeks have to do with anything relating to foetal gestation? Making 15 weeks a demarcation period for late-term abortions is an attempt to make an ideological point, changing the understanding of what late-term means.  The shorter the time period where you can get a legal abortion, the less time pregnant people have to make their choices. But how can 15 weeks be late-term; it is less than 4 months and way before foetal viability?  The cynicism of anti-abortion politicians about pregnant people’s lives and bodily autonomy merely demonstrates the attacks on democracy in the US.

Even if the Republicans win both the House and Senate, it is questionable whether they can get 60 votes in the Senate (even McConnell admits this) to limit abortion access to 15 weeks. Moreover, some anti-abortion groups oppose 15 weeks as there are states that either have banned abortion completely or have limited it to 6 weeks of pregnancy; 15 weeks at the federal level undermines their misogynistic efforts. Graham’s bill lays bare the lie that the overturn of Roe and Casey was about democratic decision-making by voters.  

The States

The SCOTUS overturn of Roe, citing the need for democracy to decide the status of abortion, is almost risible. American democracy is constrained. Already, the Hyde Amendment limited the use of Medicaid funds for abortion in some states to mothers’ life, incest, and rape; despite the overturning of Roe and Casey, the Hyde Amendment remains. This impacts those with lower incomes, especially people of colour whose incomes are lower due to racism. Many states had restrictions on access as well as few centres where abortion could be accessed (e.g., both Mississippi and South Dakota had only one state centre where abortions could be performed and staffed by doctors from out of state). Access to medical treatment relating to reproductive rights was also constrained, meaning that women of colour didn’t have the access they needed. Despite the majority of Americans supporting Roe, state legislatures continued limiting access to abortion, vying to be the first state to overturn Roe.

That honour fell to Mississippi, whose law limiting abortion access to 15 weeks was used to overturn Roe and Casey completely. The overturn of the right to abortion has been long in the making, with various limits and restrictions added to state laws over the years; many of these have been subsequently rejected as unconstitutional.

In some states, strengthening access to abortion began before Roe was overturned. Several states that allow Medicaid-funded abortions have begun to pass legislation allowing out-of-state access to Medicaid funding for abortions. Abortion support networks (e.g., NNAF) have been fundraising and organising logistics to help those forced to seek surgical abortions in another state.

Prior to Roe’s overturn, some state legislatures had passed “Trigger Laws” outlawing or severely restricting abortions when the SCOTUS overturned Roe vs. Wade. According to the Guttmacher Institute, one month after the overturn of Roe and Casey, 11 states had either banned abortion completely (Alabama, Arkansas, Mississippi, Missouri, Oklahoma, South Dakota, and Texas) or restricted it to 6 weeks (Georgia, Ohio, South Carolina, and Tennessee); prior to June 24, there were 71 abortion clinics in these states; after one month, that number was down to 23, primarily in the states allowing abortion up to 6 weeks of pregnancy.

In a more recent update, the Guttmacher Institute found that after 100 days, 66 clinics across 15 states were prevented from providing abortion access. Prior to the Dobbs decision, these 15 states had a total of 79 clinics offering access to abortion. Now, there are only 13 clinics (mostly in Georgia) that still provide abortions. Of those 66 clinics, 40 still provide other reproductive healthcare support and 26 have closed completely.

Some state abortion bans (e.g., Texas and Oklahoma) place travel restrictions on pregnant people to states where abortion is legal. This is a significant threat to the basic liberty of those that can get pregnant and has not yet been addressed by the SCOTUS despite their examining the Texas law allowing civil suits against those that either willingly or unwillingly assist pregnant people to leave the state, although President Biden stated that this would not be allowed.  It is not clear how he will stop it. Who would think, in this day and age, laws need to be passed to allow those that can get pregnant the right to travel unhindered?

The question is important. Will women need to prove that they are not pregnant to use public transport, a taxi, or a train to another state? Will cars be stopped at borders to ensure that no pregnant person leaves the state? Will state lists of pregnant individuals be forwarded to the police or individuals (i.e., vigilantes) to watch women? If pregnancy registers are created (let’s ignore the right to privacy implications), what will inevitably happen is that those that are pregnant and do not want to have a child won’t go to doctors for fear of being reported to the authorities. This means that medical complications such as ectopic pregnancies will not be picked up early enough to protect the life and health of a pregnant person.

While many expected Republican-dominated state legislatures and anti-choice governors to move immediately to further restrict or ban abortion outright, there has been a slight delay. Attempts to use pre-Roe bans (e.g., Michigan, Wisconsin, and West Virginia) have faced legal challenges, and temporary injunctions against bans are in place while legal battles continue.

Despite popular majorities supporting Roe and opposition to eliminating abortion access completely, bans and extremely restrictive anti-abortion laws are passed by Republican-controlled state legislatures.  In Florida and Kentucky, abortion rights are being reduced to 15 weeks. South Carolina’s legislature tried to pass a total ban, which failed due to divisions amongst Republicans on exemptions for rape and incest.

There is no question that the case of the 10-year-old Ohioan rape victim who had to go to Indiana to get an abortion due to Ohio’s severe restrictions has had an impact on rapid moves by Republican-controlled states; reality often impacts abstract notions. The politicisation of this horrific situation by Republicans angered many people and exposed the true impact of anti-abortion laws.

Kansas joining the US (1861) created a violent struggle about its status as a free or slave state. The abolitionists won, enshrining constitutionally the right of property in one’s own body. In 2019, the Kansas Supreme Court ruled abortion rights are guaranteed by the state constitution; the law to make dilation and evacuation abortions illegal was unconstitutional. This was decried by anti-choice politicians who vowed to change the constitution. On August 2, 2022, Kansas held a vote on whether to change the state constitution to make abortion illegal and voted no. Despite how right-wing and religious the state is, removing bodily autonomy from women while maintaining it for men didn’t sit well; a major defeat for anti-choice politicians and religious organisations. Other state constitutions may have a similar clause, especially if they joined the US close to the Civil War.

On August 6th, the Indiana Legislature passed the first post-Roe abortion law. The Indiana abortion ban was supposed to go into effect on September 15. The ban is almost total, allowing abortions for rape and incest capped at 10 weeks to be done in a hospital; if there are serious risks to the life and health of the pregnant person and a lethal foetal abnormality, these can happen for up to 5 months. The ban is facing two lawsuits; the first is an ACLU lawsuit questioning the unconstitutionality of the ban, and the second is about the denial of the religious freedom of Jews. At the hearings concerning these lawsuits, the judge issued a temporary injunction on the Indiana abortion ban pending the outcome of these lawsuits. A lawsuit filed by Jews in Florida over 15-week abortion limits also cited constitutional guarantees of freedom of religion.

While enforcement of the pre-Roe Abortion Ban in West Virginia was blocked in July, the state legislature passed an abortion ban on September 13 allowing abortions only in medical emergencies and up to 8 weeks for adults (14 weeks for minors) in the cases of incest and rape, which must be reported to law enforcement. The current governor has signed anti-abortion laws before, and this latest ban will be signed.

The contention that democratic debate on the issue will be allowed in states is laughable. Due to voter suppression laws and gerrymandering, legislatures are not truly representative of the opinions and demographic makeup of their populations, especially in states under Republican control. The early suspension of the census by Trump will enable states to block democratic participation (and alter the amount of federal money sent to states designated for the poor and people of colour). This will make the so-called “debate” on abortion laws a debate in name only. In many cases, for democracy to actually exist, citizens must get around the state legislatures that are passing laws blocking abortion access. With only 30% of the population in every state supporting abortion laws, it is impossible to argue that banning abortion is supported by the state population.

State Citizen Initiatives

Many US states allow voter-initiated plebiscites on their ballots. However, Republican-dominated legislatures are making it harder for them to get on the ballot.

According to David Leib:

“About half the states allow citizen initiatives, in which petition signers can bypass a legislature to place proposed laws or constitutional changes directly before voters. But executive or judicial officials often still have some role in the process, typically by certifying that the ballot wording is clear and accurate and that petition circulators gathered enough valid signatures of registered voters.”

In Michigan, a citizen’s initiative to keep abortion legal got over 755,000 signatures. Michigan anti-choice politicians and campaigners claimed word spacing made the initiative incomprehensible to try to block it from being on the November ballot; following appeals, the Michigan Supreme Court allowed it on the ballot.

In South Dakota, before the overturn of Roe and after several citizen initiatives by anti-abortion campaigners to block abortion access failed, the Legislature and the Governor passed anti-abortion laws that were not consistent with the Hyde Amendment. Currently, abortion is illegal in South Dakota and is considered a class 6 felony with an exception only for the life of the “pregnant female.” There is a proposed initiative allowing abortions in South Dakota scheduled for 2024 that will make abortion legal if all the hurdles required for a citizen’s initiative to get on the ballot are completed. The issue really comes down to people having to go around the legislature because a total abortion ban doesn’t have majority support.

Getting around the legislature is becoming harder; more often, Republican-controlled states create unnecessary rules (this shares a lot with state anti-abortion rules like TRAP Laws) to block these initiatives. Increasing the percentage needed to win the vote, outlawing out-of-state funding, and making it harder to get on the ballot are routine. The issue comes down to accessing democracy in a situation when the state legislatures are bypassing the electorate.  

Florida formally allows initiatives, but if opposed to Republican policy, like raising the state minimum wage, allowing former felons to vote, or legalising medical marijuana, they are ignored by or overturned by the Republican-controlled legislature. Despite an initiative allowing former felons to vote to pass in 2018, the Florida Legislature (2019) responded by adding a new requirement demanding former felons pay all court-ordered fees, fines, and restitution. This is a revival of Jim Crow legislation used to prevent black people from voting, but the state miscalculated badly as there are not only black felons despite the disproportional imprisonment of people of colour. A new citizens’ initiative is being proposed which will allow all to vote despite debts, but it needs to get on the ballot and win 60% of the vote to pass.

Some final thoughts …

Democratic deficits are not specific to the US – it is not the only advanced capitalist country where attacks on democratic rights are happening. Hard-right politicians are in power in some countries, fascist parties are increasing their vote share in elections. Fascism itself is being normalised as the far-right is brought into supposedly mainstream right-wing political parties and government coalitions.

Attacks on democracy have included limits imposed on the right to vote, freedom of protest, freedom of assembly, freedom of speech, the right of bodily autonomy, and the right of workers to strike. The cynicism of claiming that Roe and Casey bypassed democracy when they themselves undermine democracy and the will of the people leaves us with a grotesque situation.

This is magnified as state legislatures undermine voting rights, and the rights of bodily autonomy, banning books in schools, allowing attacks on protestors and limiting citizens’ initiatives for the sole purposes of staying in political power and advancing a right-wing political, social and economic agenda. It is no longer possible to pretend that this is an aberration, as those advocating these attacks are in political power and have support among their constituents. The power of the far-right is increasing, not declining, and we are headed towards further attacks on our civil and human rights. Many mainstream politicians do not even understand (this is not about “conservatism”) and do not know how to fight, often viewing the left and those supporting preserving democratic rights as a bigger enemy due to what they perceive as a threat to the economic system that they are pledged to protect.

Call it a democratic deficit if you want, but creeping fascism is a far better description of the situation. In some states in the US, fascism has gone way beyond creeping. Stopping this in its tracks will not be done unless we fight for it; all the changes that we have demanded have historically required a struggle to force politicians to move. There is no reason that this will change now or in the future. This is a struggle that we cannot pretend doesn’t exist or treat as an aberration. We need collective organisation and autonomous self-organisation of the oppressed to carry through this fight and hope to win it. 

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Susan Pashkoff is a revolutionary Marxist, Economist, political activist and blogger. She writes on issues around US and British politics and economics, gender and women's oppression, and disability.

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