Donald Trump promised on the campaign trail in 2016 that he would appoint enough anti-choice Supreme Court justices to overturn Roe v. Wade, the 1973 decision that made abortion legal until the point of viability in the US (then measured at roughly 24 weeks).
Trump wouldn’t have nominated Brett Kavanaugh — or Neil Gorsuch before him — unless he was fairly sure that they together would tip the balance on the Supreme Court against Roe.
Kavanaugh’s judicial record convinced the right-wing National Review to state recently: “On the vital issues of protecting religious liberty and enforcing restrictions on abortion, no court-of-appeals judge in the nation has a stronger, more consistent record than Judge Brett Kavanaugh.”
These facts tell us that Kavanaugh poses a serious threat to reproductive rights if his nomination is confirmed by the Senate — whether this threat shapes up in an immediate legal challenge to Roe v. Wade or it takes longer to unfold.
The stakes are very high: If Roe is overturned by the Supreme Court, individual states, along with Congress, will be authorized to issue new abortion bans — while states that already have abortion bans will be allowed to enforce them.
One such measure now working its way through the courts is an Iowa ban on abortion once a fetal heartbeat is detected — at roughly six weeks of pregnancy. This law is intended by anti-choice forces to pose a direct challenge to Roe if and when it reaches the Supreme Court.
Coat Hangers, Handcuffs and Prison Bars
Some abortion rights supporters have resigned themselves to losing more ground to the anti-abortionists, including maybe Roe itself, but they take comfort in the belief that at least medical abortions are more accessible now.
It’s true that early abortions are easier to access and much safer today than in the decades before 1973, because of the introduction of the so-called “abortion pill” — which is actually two pills: mifepristone, also known as RU-486, followed by a second drug, misoprostol, 24 to 48 hours later.
This prescription regimen, however, is only effective until 10 or 11 weeks after conception — a point at which many women and other pregnant people are not yet aware they are pregnant.
In addition, poor women, trans men, teens and those with medical conditions who face heart-wrenching decisions about whether to terminate their pregnancies are much less likely to be able to plan for an early abortion. They often need to figure out ways to raise the money and how to get enough time off work to travel long distances to obtain an abortion.
Clinical abortion is as necessary as ever for many millions of people.
According to a Guttmacher Institute survey in 2014, 49 percent of those seeking abortions were living below the official poverty line, while another 26 percent were classified as low income. Together, they account for 75 percent of those seeking abortions.
Those on Medicaid lost their right to federally funded abortion by the Hyde Amendment, passed in 1977, which has been reinstated every year by Congress since then.
Now Trump has gutted perhaps the most important reproductive rights reform to come from Barack Obama’s Affordable Care Act — the provision covering the costs of contraception in most insurance plans. This will undoubtedly increase the need for abortion among poor and working-class people.
Finally, we need to consider the fact that a post-Roe legal system would in some crucial ways be worse for women and other pregnant people than the pre-Roe era.
Lynn Paltrow, founder and executive director of National Advocates for Pregnant Women, stated plainly: “This is not your mother’s 1973. We’re not just going back, we’re going someplace new.”
Now, Paltrow says, “we live in a very different time, one of mass incarceration and mass criminalization. The population has grown 40 percent, but the prison population has grown 500 percent, and any hesitation that existed about locking up women doesn’t exist anymore, especially for Black, Brown and poor women” — that is, those most likely to need abortions.
When Trump declared in a town hall meeting during the 2016 campaign: “There has to be some form of punishment” for those receiving an abortion, he was laying out his strategy if Roe is overturned.
Jamila Perritt, an obstetrician and a fellow with Physicians for Reproductive Health, predicted that there will be “new symbols” for illegal abortion in this new era.
The image of the coat hanger, which came to symbolize the hundreds of thousands of women who risked (and sometimes lost) their lives by self-inducing abortions before the Roe decision, is still relevant today. But this image will be joined by “handcuffs and prison bars” if Roe is overturned, according to Perritt.
Last year, a Tennessee woman was released after serving more than a year in prison on a charge of attempted murder after she used a coat hanger to try to terminate her unwanted pregnancy at 24 weeks.
Her partner took her to the hospital when she experienced extensive bleeding, and the hospital forced her to deliver a fetus that weighed just 1.5 pounds — while the police pressed charges against her, landing her in jail. Expect many more cases like this if the Supreme Court overturns Roe.
The Potential for a Pro-Choice Movement
The nomination of Kavanaugh has led to an increase in public support for Roe v. Wade, with 71 percent of Americans, a record high, saying they don’t want the landmark pro-choice decision overturned. This includes 88 percent of self-described Democrats and even 52 percent of Republicans.
We have an enormous opportunity before us to galvanize a new grassroots pro-choice movement unfettered by generations of retreat on the part of existing mainstream pro-choice organizations.
The mainstream feminist movement placed its hopes in a failed strategy that relied on campaigning for Democratic Party politicians to defend the right to choose over the last 40 years — only to find out that these same politicians forked over crucial political ground to the anti-choice movement and their sponsors in Congress, and today in the White House.
The Women’s Marches in 2017 and 2018 brought millions of people, many of whom had never been on a protest before, into the streets in the US and around the world. The #MeToo movement over the last year has likewise generated massive anger and a sense of solidarity among those who have experienced sexual assault.
This outpouring of protest is evidence that the sexism, misogyny and transphobia that dominates our society today has produced a scale of resistance with the potential to give rise to an organized movement to advance women’s right to control their own bodies — including women’s right to decide whether and when to have children, and however many children they choose; an end to the sexual objectification of women; and an end to rape and violence against women.
NARAL Pro-Choice America, Indivisible, MoveOn, and a host of liberal organizations have called for a national day of action on August 26 under the slogan of “Unite for Justice.”
This is a very positive development, because together, these liberal organizations can mobilize many thousands of activists if they make this a priority. We should join them in this mass mobilization.
But we also need to be aware that they might simply parade Democrats across the stage who pledge to support the right to choose, but who will do very little in reality — as has unfortunately been the Democrats’ record for the last several decades.
A Matter of Life and Death
We need to build a grassroots pro-choice movement in all our localities, which is how effective national movements get built. Every activist movement is only as strong as the sum of its local parts.
And now is the time to organize to stop Kavanaugh’s confirmation to the Supreme Court. Pro-choice activists in Portland, Maine are pointing the way forward for all of us, protesting since July at the office of Republican Sen. Susan Collins — who could provide the swing vote against Kavanaugh’s nomination, since she claims to support the right to choose, but has not committed to oppose Kavanaugh.
At the same time, Kavanaugh’s nomination has already emboldened the anti-choice movement, which is gearing up for its semi-annual “40 Days for Life” campaign from September 26 to November 4. During this time, these anti-choice, religious zealots will be organizing protests and blockades at women’s clinics intended to intimidate all those seeking abortions and the pro-choice activists who defend them.
Pro-choice activists need to organize collectively to confront and outnumber these anti-abortion fanatics, in every locality where they organize their protests. This includes organizing counterprotests against them at clinics that perform abortions, in order to outnumber them with the pro-choice majority.
The right to abortion is a matter of life or death, especially for those without the financial means to easily afford it.
In August, despite a millions-strong movement in Argentina to decriminalize abortion through the 14th week of pregnancy, the Senate rejected this proposal. Less than a week later, a woman known only as “Elizabeth,” a mother of two, died after trying to self-induce an abortion using parsley.
We need no more proof that those who need abortions will risk their lives — and often lose them — to end an unwanted pregnancy.