As the Dobbs regime succeeds Roe, the flames creep closer to everyone.
The end of an era
With this year’s decision in Dobbs v. Jackson Women’s Health Organization, SCOTUS has ended an era that began with Roe v. Wade in 1973. The action to which the decision has spurred outraged Americans is a silver lining, especially as activist energy extends to other legal regimes deserving of attention. Voting rights? Immigration law? Responses to climate change? One can hope. Without undervaluing the importance of abortion rights, however, we can also admit that Roe, as well as its subsequent line of cases, was not without problems.
The decision’s grounding in the right to privacy, as pulled from the Bill of Rights – or thin air, as per opponents – did not offer the soundest protection. (For other theories of abortion rights, see here. For an examination of privacy and poverty, see this book by the brilliant Khiara Bridges.) Roe also contained language that placed at least some decision-making capacity In the hands of the physician rather than the pregnant person, and used a trimester measurement that reflected only a chronological marker rather than a substantive reason for restricting abortion. It took no notice of the existing uneven access to abortion, similar to access to other health care services. In 1992, Casey v. Planned Parenthood replaced the trimester measurement with “viability,” a moving target due to ever-improving medical developments to treat the neonate. Casey introduced a new legal standard: states were not permitted to restrict abortion for pre-viability pregnancies in ways that presented an “undue burden.” However, subsequent cases failed to rule out most restrictions as undue burdens. Pregnant people apparently suffered no undue burden by being forced to travel long distances with a forced overnight stay so that they might be read a state-mandated script on the alleged risks of abortion and then wait 24 hours to let it sink in before their procedure might begin. In many states, access to abortion under Roe and then Casey was no cakewalk.
Roe‘s OTHER problems
Equally onerous, but much less remarked by the pro-choice movement, was Roe’s misapplication to pregnant people who wanted to continue their pregnancies. How did that work? Roe granted states an increasing “interest in the fetus” over time: states were granted the ability to restrict abortion the farther a pregnancy advanced. Unfortunately, various segments of law enforcement and the judiciary misinterpreted abortion law to mean that states also had an interest – that is, a right to interfere – in pregnancies carried to term. The result has been any number of state interventions, from railroading pregnant people into cesarean surgery, threatening them with child abuse and neglect investigations for failing to fall in line with medical recommendations, all the way to the criminalization of pregnancy, in which Black and Brown people especially are prosecuted if they are found to have used drugs and/or their pregnancies do not result in a perfectly healthy child, even lacking any evidential causal relationship between the two circumstances.
Roe’s demise, far from removing this misapplication, shifts it earlier in the pregnancy. Who can say now when the state’s interest in the prenate begins? When, in fact, does the prenate’s life begin? (That question is examined in this post.) And how early in the life of a person with even the appearance of a future capacity for pregnancy might the state step in? What might the state do now to maintain control over reproduction while continuing to feed the racist prison-industrial complex?
Lace up those boxing gloves!
The moral of this story: Pregnant people possess a common interest, whether they intend to terminate their pregancies or carry them to term. It is in the interest of anyone with a desire to protect reproductive rights, whether that be the right to have children, the right not to have children, and the right to raise children in safety and with dignity, to fight like hell against legal regimes that allow the state to impose restrictions for which pregnant people will bear the consequences.
All images are shared under a Creative Commons license, unless otherwise noted. Where required by license, changes to the image are noted.
- Photo of frying pan and fire is from pxhere.com.
- Photos of lawyer and client are by Andrew Neel.
- Photo of approaching flame is from pxhere.com.