As the fightback against a raft of anti-abortion laws in the USA gathers steam, it can't be left just to establishment liberals to lead it, argues Kate O'Neil
In the space of just over two months, tens of millions of women in the U.S. have come to the brink of losing their reproductive rights. Since mid-March, five states – Kentucky, Mississippi, Ohio, Georgia and Missouri – have passed laws which would make abortion illegal in the first trimester of pregnancy, around the time a woman normally finds out she is pregnant. Two other states, Kentucky and Utah, passed laws criminalising abortion earlier in the second trimester, and an eighth state, Alabama, sent shockwaves through the political establishment when it outlawed abortion from conception. In each of these states, exceptions were made only for cases in which the mother’s health is at risk and, in all but Alabama and Missouri, cases involving rape or incest. This trend is expected to continue. Laws in other states are pending, and since the start of the year, 250 anti-abortion bills have been tabled in 41 states.
To what can this unprecedented assault be attributed? It certainly cannot be linked to a sudden rise in popular opposition to abortion. A recent poll by the Pew Research Centre maintained that a solid majority of Americans (58%) support the right to abortion in all or most cases, with only 37% reporting that abortion should be made illegal in all or most cases. According to CBS News, 67% of Americans oppose any attempts to change federal abortion guarantees. A Gallup poll this year even revealed a slight downtick in the number of people claiming they would like to see stricter laws on abortion, from 29% in 2016 to 21% in 2019.
Rather, the bans represent a shift in strategy on the part of the anti-abortion movement. The right to an abortion in the US is protected at the federal level by a Supreme Court ruling from 1973, Roe v Wade. The decision was not air-tight, however, as only first trimester abortions were fully protected. Restrictions could be put in place, and third trimester abortions could be abolished entirely, so long as the mother’s health was not at risk.
Until this year, the religious right’s strategy centred on taking advantage of these loopholes to curb access to abortion piecemeal—and they have been extremely successful. Currently, 43 states prohibit third trimester abortions; 42 allow health care institutions to refuse to perform an abortion; 37 require parental involvement in a minor’s decision; and 27 have a waiting period. The difficulty of providing abortion services in many states is such that 8 states now only have a single abortion provider. Needless to say, these restrictions disproportionately punish poor and working class women, women of colour, young women, and women living in rural areas.
But overturning Roe v Wade has always been the end goal of the anti-abortion right, so securing a majority of anti-abortion judges on the Supreme Court has long been a cornerstone of their strategy. Even with four of the nine members already reliably conservative, this was never an easy task to accomplish. Supreme Court justices are nominated by the president, confirmed by the Senate and appointed for life. This meant that to achieve an anti-abortion majority, a perfect storm was required: election of a president and a Senate that would appoint an anti-abortion judge and the death or resignation during their tenure of a judge who had upheld the Roe v Wade decision.
In October of last year, that typhoon touched shore. With Trump in office and a Republican-controlled Senate, the moderate ‘swing voter’ Justice Kennedy announced his resignation, and the highly conservative and controversial Judge Kavanaugh was appointed. This tipped the balance in favour of overturning Roe v Wade whenever a case challenging Roe is brought before the high court. Anti-abortion activists have pushed the state bans in order to provide such a case. By targeting first trimester abortions, these laws violate the essence of Roe and will trigger court challenges that could eventually work their way through the lower courts to the Supreme Court.
Resistance to these bans is just beginning, but the potential for a new reproductive rights movement is massive. Last Tuesday, 400 rallies across all fifty states took place, demonstrating not only widespread opposition but willingness to take action. It will be a tough battle, however, and the politics and strategy that this new movement adopts will be crucial. So far, leading the ‘official’ charge are the Democratic Party and other liberal organisations, such as abortion provider Planned Parenthood and the American Civil Liberties Union (ACLU), a legal advocacy group.
As with so many political grenades thrown by Trump and his right-wing backers during his presidency, this direct attack on basic rights is forcing even the mainstream of the Democratic Party to adopt a more progressive stance and combative tone. Three presidential hopefuls have all announced this week their intention to push for an Act of Congress to guarantee abortion rights nationally and have called for the repeal of the Hyde Amendment, a law which prohibits use of federal funds for most abortions. Meanwhile, lawmakers in several states, like New York and Illinois, have already passed legislation to reverse certain restrictions and expand abortion access at state level. Planned Parenthood and the ACLU have filed lawsuits challenging bans in every state where they have been passed.
It is refreshing to hear Democrats defend abortion uncompromisingly and see them take swift legislative action. But one must indeed ask, given the myriad restrictions already in place, why the party that regularly campaigns on ‘pro-choice’ platforms has not been on the warpath until now. Between 2011 and 2017, 400 new restrictions were put in place throughout the country, and very little was heard about them. Even the pro-abortion bills that passed in various states over the past weeks had, according to Elizabeth Nash at the Guttmacher Institute, a pro-choice thinktank, ‘been introduced for a number of years to protect abortion rights, but they hadn’t been able to break through and get legislative attention.’
The Democrats’ anaemic defence of abortion until now is a legacy of the Clinton-era strategy of triangulation of the 1990s—taking for granted support from the liberal base and trying to appeal to a moderate electorate. From the very beginning of his presidency, the scope of debate on abortion rights was limited to a woman’s ‘choice’; any mention of funding or access for poor women would have run counter to the Clinton-era drive to eliminate welfare dependence. In 1996, when pushed to veto a bill banning late-term ’partial birth’ abortions, Clinton did so only while declaring sheepishly that abortions should be ‘safe, legal and rare’—a clear ideological concession to the religious right. Planned Parenthood and others followed suit, dodging discussion of abortion in their campaigns, and highlighting instead less controversial issues such as contraception. That same year, public support for abortion ‘in all cases’ dropped from 31% to 25%, and the figure has not recovered since.
This is not to say that Democrats and liberal organisations cannot shake off some of this legacy, and the legal and legislative strategies they are pursuing today should be supported and pushed as far as they can go. But a new movement that can secure full reproductive rights for all women in the United States must understand the limits of their politics and develop independent grassroots organisations that can defend abortion rights confidently at every turn. As The Economist astutely observed, social conservatives in the U.S. have ‘advanced over abortion’ at the same time as they were forced to retreat ‘in the culture war over gay marriage.’ This reminds us the right can be beaten--but only by a movement that can both organise protests and wage an ideological war that puts the religious right on the defensive and shifts public opinion to the left.
Polls have consistently shown that a majority of Americans support abortion rights but with restrictions. A clear case must be made for why a woman should have the right to choose abortion in any circumstance and why the state should fund access to abortion for all. The Roe v Wade decision was taken during the height of the women’s liberation movements of the late 1960s and early 1970s, when a popular slogan was ‘Free abortion on demand with no apologies.’ The new movement would do well to adopt it
We can support the movement here by bringing that message to the Trump protest on 4 June.
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