By Ann G. Daniels and Heidi Rand
July 28, 2022:
NOTE: AN EARLIER VERSION OF THIS ARTICLE WAS PREVIOUSLY PART OF OUR ARTICLE “NO MORE ROE V. WADE, HOW TO KEEP FROM DROWNING, WHICH INCLUDED BOTH ACTION ITEMS AND AN ANALYSIS OF THE SUPREME COURT DOBBS DECISION OVERTURNING ROE V. WADE. WE MOVED THE DISCUSSION OF THE DOBBS DECISION TO THIS ARTICLE – THE ACTION ITEMS ARE STILL IN THE ORIGINAL ARTICLE. Also, we’re updating the action article regularly as the political and legislative landscape shifts across the nation, so be sure to check it regularly!
On June 24, The Supreme Court issued its long-dreaded decision in Dobbs v. Jackson Women’s Health Organization. (In)Justice Alito wrote the opinion, as he did the draft that Politico leaked in May, which we analyzed in our earlier article. The final decision looks very much like the appalling leaked draft:
- it overturns Roe v. Wade and Casey
- it states that abortion is not protected by the Constitution
- it returns the issue to the states – over half of which will now have laws outlawing abortion in whole or in part, including so-called “trigger bans.”
So, what’s the opinion about?
Well, it’s about 79 pages long, plus an appendix, plus the concurring opinions and a dissent by Justices Kagan, Sotomayor, and Breyer. Sorry – it’s grim, we get our humor where we can.
According to Alito:
- Abortion is not mentioned in the Constitution, and the Supreme Court should not have meddled
- There is no historical foundation for a right to privacy or equality that can underlie a Fourteenth Amendment right to abortion
- Roe was “egregiously wrong and deeply damaging”
- It’s time to “return the issue of abortion to the people’s elected representatives”
- Don’t worry about contraception or LGBTQ+ rights or any other rights, this is only about abortion! (we paraphrase).
And if you believe that last one – about other rights being safe – wanna buy a nice bridge? It’s hard to think even Alito believes his “Abortion is different” bleatings, since the “logic” behind his rejection of abortion applies 100% to contraception and LGBTQ+ rights – also not mentioned in the Constitution and historically criminalized. Indeed, the Supreme Court opinions on ALL these rights are inextricably intertwined in what Alito calls “egregiously wrong” reasoning. Oh, guess what else isn’t mentioned in the Constitution? Interracial marriage – and Alito’s “historical analysis” of abortion reads chillingly like an analysis of laws against interracial marriage. And let’s also talk about disability rights – as this powerful statement says, “abortion rights are disability rights.” In fact, this opinion is a time bomb threatening a massive part of our society, especially those who have the least power.
Justices Kavanaugh, Roberts, and Thomas each wrote separately to concur with the decision:
- Roberts concurred in the judgment but did not join in Alito’s reasoning – he agreed with upholding Mississippi’s law but said he wouldn’t overturn Roe and Casey. Most legal scholars feel that this makes no sense; some think that his concurrence reads more like a dissent. It makes little difference, since even if he had dissented, the vote would have been 5-4 to overturn Roe.
- Kavanaugh insists that there is no historical right to abortion and that women in this country cannot claim reliance on Roe or the right to choose as settled law because abortion rights have remained controversial and subject to attack. He also insists that the Constitution is “neutral” on abortion and that the Court must therefore also remain “neutral” – a position that fundamentally misunderstands the role of the Court.
- Thomas wins points for scorched-earth honesty – his dissent says, let’s revisit a whole lot of individual liberties like contraception and same-sex marriage and striking down sodomy laws, and let’s get rid of all of them. Note, he also says not a word about interracial marriage – a right conspicuously not mentioned in the language of the Constitution, for those who believe that such things are determinative.
And lest you think Thomas is only one extremist voice: State legislatures are threatening to outlaw receiving abortion pills by mail, Plan B, and even women traveling out of state to get abortions where they’re legal.
What to do?
Not everything is doom and gloom. On the federal level, the House has passed the Right to Contraception Act (although as always the Senate is another matter), and President Biden signed an Executive Order in July that will, among other things, try to protect access to mifepristone (early medical abortion), emergency contraception (Plan B), and IUDs; protect patient privacy; and increase security and legal options for people seeking abortions in states that ban them. The order also creates an interagency task force on reproductive health care access.
Another Executive Order is aimed at ensuring that women can travel out of state to get abortions. And HHS has announced “Guidance to Clarify that Emergency Medical Care Includes Abortion Services.”
In California, abortion is statutorily legal – indeed, this is one of the most “supportive” states in the US, and new pro-choice protections are being added even as we write: a Constitutional amendment guaranteeing the right to abortion and contraception will be on the ballot in November, and the legislature is working on a bill protecting women and providers from civil actions in other states.
California has also joined Oregon and Washington State in a “West Coast Offense” to protect reproductive rights, since women are already flooding here from elsewhere in the country. But, you also need to know: even in California, 40% of counties have NO clinics that provide abortions, and abortion is more difficult statewide for low-income women and women of color. Many states near California have, or will have, bans, leaving nearly a million and a half out-of-state women with the nearest abortion provider here in California. Even where abortion is legal, women – and healthcare providers – can be confused or subject to disinformation campaigns: if you think abortion is illegal where you live or work, it might as well be. And no matter what, legal abortion doesn’t mean accessible abortion, and there has never been equal access here or anywhere else.
So – take a deep breath. There’s work to be done, and we’ve got a whole article with multiple ways you can turn your fear and rage into constructive action. Emotional gas tank drained by the past two years, six years, time has lost its meaning, wondering why you feel numb at this latest horror? No one blames you, and you can do important things while you protect yourself emotionally. There’s something for everyone on this list, and some of these only take minutes. Pick one, pick more – but do them, now. And then tell everyone you know, so they can help. And remember – we played a long game to get to Roe, and then the anti-choice forces played a long game to get to this point. It’s no time to stop fighting now.
Reminder: We’re updating our action article regularly as the political and legislative landscape shifts across the nation, so be sure to check it regularly!
Ann G. Daniels has enjoyed a checkered professional background, including many years working in reproductive rights advocacy through good times and bad. She’s furious but always rising to fight again and hopes you are also.
Heidi Rand fights for progressive change with skills gained as a Ninth Circuit staff attorney and civil rights lawyer, using her words to inform and inspire others to take action.
Dobbs v. Jackson, photo by Victoria Pickering