Steve May 3, 2022
the-real-fight-for-abortion-rights-is-not-in-the-courts-or-congress

Where will you be when Roe ends? Whether or not Justice Samuel Alito’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization reflects the Supreme Court’s ultimate decision on the right to abortion, it comes as no surprise. Reproductive justice advocates have long warned that Roe v. Wade was in danger, well before the court agreed to take this case concerning a Mississippi abortion ban—before Justice Ruth Bader Ginsburg’s death, before Trump shifted the balance of the court by appointing justices certain to roll back Roe.

Those who saw this coming, who never believed the court could save them, who have mostly given up on the Democratic Party’s promises to protect Roe, have hardly been quiet or thwarted. Every local abortion fund launched to bridge the divide between a right and acting on it, every shared how-to on self-managed abortion using misoprostol pills (and mifepristone, if you can get it)—that’s what knowing this moment would come has looked like for years. It’s what surviving the end of Roe has already meant in the 89 percent of counties in this country without a clinic providing abortion, where abortion is already a contingent right.

We now live in a country far more hostile and punitive to abortion rights than it was on January 22, 1973, when the Roe opinion came down. (Notably, what the court would rule in Roe—though not the opinion itself—was leaked, too.) Since then, the number of women who are incarcerated has exploded, seven times higher now than it was in 1980, growing at twice the pace of men’s incarceration. This “new era of mass incarceration, overcriminalization, and an expansion of federal and state law enforcement agencies’ powers of investigation and surveillance,” concluded a recent report from the National Association of Criminal Defense Lawyers, “will most certainly be deployed in a post-Roe America to target both the abortion providers and the people seeking and having abortions.” Despite the right’s claims that it doesn’t wish to punish those who have abortions, the reality of our criminal legal system has handed willing prosecutors many options for doing just that—and some, as monitored by groups like If/When/How: Lawyering for Reproductive Justice, already have.

So it is understandable why so many abortion rights supporters are sick of the idea still promoted by some Democratic lawmakers that it’s on us to vote our way out of this. It is especially enraging to be told this when Democrats hold Congress right now but—in part, thanks to the undemocratic distribution of Senate seats granting extra power to smaller, conservative states, paired with the anti-majoritarian procedures of the filibuster—cannot pass federal legislation to ensure the right and access to abortion, like the Women’s Health Protection Act. And when some Democrats continue to support anti-abortion candidates in races when challenged by abortion rights proponents. On Tuesday, senators offered a range of responses—from Chuck Schumer’s tweeted promise of a vote codifying Roe to Elizabeth Warren’s impromptu speech outside the Supreme Court, declaring, “I am here because I am angry, and I am here because the United States Congress can change all of this.” To which the obvious response is, though—when? Likely not on the same day Senators Joe Manchin and Kyrsten Sinema once again pledged their allegiance to the filibuster.

Where were you, then, when Roe ended? It’s where you were during the Kavanaugh hearings. Or where you were when any number of people with power began to shred, bit by bit, what we were told was a right: from Representative Henry Hyde banning federal funds for abortion, to each state legislature that passed 20-weeks bans and 15-weeks bans and six-weeks bans.

This abandonment by lawmakers is why so many of the most effective solutions we have right now are being developed far outside the realm of electoral politics. Increasing abortion access through abortion funds and education on self-managed abortion, including establishing legal defense funds for abortion, isn’t just something to do while waiting for a better election outcome (maybe) to win back our rights; it’s what advocates have already been doing to survive even when Democrats win. They have secured this right even when legislators failed to.

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In truth, rights—not just abortion rights—are fragile, contingent, and partial. Certainly those Republicans trying to rewrite history are operating under this belief; that rights can always be revised to serve their attempts to hold power, even when they are out of power, so long as they claim they were never rights in the first place. The Alito draft opinion goes so far as to indulge a fantasy in which a decision to roll back Roe is tantamount to Brown v. Board of Education ending the doctrine of  “separate but equal” laid out in Plessy v. Ferguson, a claim made only more egregious by the fact that without Roe, Black women’s reproductive freedom will be further put in jeopardy. And should the Alito draft opinion on abortion rights hold, its logic would endanger a constellation of other seemingly secure rights—from legal contraception in Griswold to marriage equality in Obergefell.

From there, if this doctrine—of no right being a right but for those explicitly defined in the Constitution—is upheld, one need only look to the Christian dominionist agenda of the groups that put these justices on the bench to see where it would lead. As true as it might be to say, “If they come for Roe tonight, they’re coming for marriage equality tomorrow,” there are plenty of people they have come for already, from trans kids seeking health care to people giving birth in jails to sex workers sharing harm-reduction information to criminalized survivors of intimate partner violence. If you are today feeling for this first time like the government is demanding control over your gender and sexuality and bodily autonomy, you are, sadly, in numerous company. But that also means that there are countless people around you who already know that freedom, certainly now and maybe always, will not come solely from what the law can recognize. Either the law must be pushed to recognize those rights, or those rights must be won despite the law.

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