During Amy Coney-Barrett’s confirmation proceedings for the Supreme Court of the United States (SCOTUS), several distressing exchanges occurred, writes Susan Pashkoff. One that stands out occurred during Senator Amy Klobuchar’s question time when she asked what Coney-Barrett considered a super-safe decision; i.e., a judgement that was so important that its conclusions are unchallengeable. Senator Klobuchar asked about Griswold v. Connecticut (1965); a landmark decision establishing the right of marital privacy as the basis for married couples to obtain contraception, the right of privacy for intimate decisions and establishing privacy as a right guaranteed from government intrusion irrespective of not being explicitly stated in the US Constitution.
This decision provides the basis for guaranteeing a series of important rulings: the right of unmarried couples to access contraceptives (Eisenstadt v. Baird, 1972), the right to abortion for any women (Roe v. Wade and Doe v. Bolton, 1973), the right of juveniles over 16 to access contraceptives ( Carey v. Population Services International, 1977), the right to homosexual sex (Lawrence v. Texas, 2003) and the right to same sex marriage (Obergefell v. Hodges, 2015).
Coney-Barrett refused to directly answer the question, stating that it was doubtful that a case would be brought to the SCOTUS directly challenging Griswold. This implied that if a case was brought that challenged Griswold she didn’t hold it as a safe decision.
This is chilling: a reversal of Griswold would be devastating. Although she is apparently willing to hear a case challenging Griswold there is (thankfully) no guarantee that the rest of the SCOTUS would be willing to re-examine this ruling. However, given the spate of cases challenging the right of women to have abortions, nothing should be a surprise. While not wanting to raise a red-herring in the midst of serious worries about women’s right to abortion being overturned on the federal level; that exchange is deeply concerning.
Abortion Rights in a post-Roe US
With Coney-Barrett on the SCOTUS, the seminal Roe and Doe cases will certainly be weakened and probably overturned. There are a number of cases that can be used to do this; many states are vying to be the one whose law is responsible for overturning both. This would essentially send the decision about the right of women to have abortions back to the states.
According to the Guttmacher Institute, this will have a significant impact on women accessing abortion in different states.
- 21 states have laws that could be used to restrict the legal status of abortion.
- 9 states retain their unenforced, pre-Roe abortion bans.
- 10 states have post-Roe laws to ban all or nearly all abortions that would be triggered if Roe were overturned.
- 9 states have unconstitutional post-Roe restrictions that are currently blocked by courts but could be brought back into effect with a court order in Roe’s absence.
- 7 states have laws that express the intent to restrict the right to legal abortion to the maximum extent permitted by the U.S. Supreme Court in the absence of Roe.
- 3 states have passed a constitutional amendment explicitly declaring that their constitution does not secure or protect the right to abortion or allow use of public funds for abortion.
- 13 states and the District of Columbia have laws that protect the right to abortion.
- 2 states and the District of Columbia have codified the right to abortion throughout pregnancy without state interference.
- 11 states explicitly permit abortion prior to viability or when necessary to protect the life or health of the woman.
In a study in which the Guttmacher Institute participated an estimated 93,500 to 143,500 women especially in the Midwest and the South would have difficulty getting abortions due to the increased travel time required to get a safe abortion. Anticipating the closure of abortion centres in 21 states if Roe was overturned, they estimated that from the situation in 2019 (where average travel distance was 25 miles) to one in which it would range from 1 to 791 miles. This would amount to an increase in travel on average to 249 miles and affect 39% of women in the US. They estimate that the number of abortions would decrease as a result.
Making abortion illegal does not stop abortions; it simply makes getting them unsafe and dangerous. Even if new centres opened up near state borders where abortion is illegal, women who cannot afford to travel and cannot afford to pay will die from back-street abortions. This is unacceptable. An abortion support network could provide some assistance for those living in states where abortion is illegal. (One exists in Britain which supports women from countries where abortion is criminalised). But even if costs are covered, it may not be possible for many women, especially younger ones, to travel.
The struggle for women’s reproductive rights is far from over internationally. Many countries around the world still ban abortion, some only allow it if the mother’s life or physical or mental health is in danger.
While gains have been made both in the Republic of Ireland and the North of Ireland, that is not the case throughout Europe. Abortion is illegal in Malta, Andorra, Vatican City, San Marino and Lichtenstein.
The proposed legislation introduced by the governing Law and Justice Party to ban abortion in Poland was defeated in 2016 following mass protests. But this autumn, Poland’s Supreme Court declared one of the few legal reasons for an abortion the “high probability of a severe and irreversible foetal impairment” unconstitutional. With the ban on what was the most common reason for an abortion, only a woman’s life and health being at risk and the pregnancy being the result of a criminal act would remain as legal grounds for an abortion in Poland. Again massive protests have erupted and solidarity actions have taken place elsewhere. This time young Polish women have gone further in challenging the role of the Catholic Church which plays a huge and repressive role in that country.
There is still a massive struggle over the legalisation of abortion in Argentina. The National Campaign for the Right to Legal, Safe and Free Abortion has led the struggle to secure abortion rights for 15 years. At the last attempt in 2018, massive protests accompanied the passage of the legalisation Bill through the Argentine Lower House. However, it was defeated in the Senate a few months later.
The latest bill, which if passed, will legalise abortion until the 14th week of pregnancy. The first Argentine President to support the legalisation of abortion, President Alberto Fernandez introduced the bill to the Congress in November 2020. On Friday morning, 10th of December 2020, the bill passed the Lower House by a vote of 131-117. A decision is expected from the Senate before the end of the year.
Martina Rodriguez ends her article “The Green Tide in Argentina Fighting for Abortion Rights” by saying:
“Countries in Latin America are fighting for reproductive rights and feminist movements have their own agency (so ditch the white saviour complex, please). Nevertheless, the demand must be as an international force. We need to put on pressure, not only in our countries where there’s a lack of substantial rights, but we must also defend them in every corner of the world and ensure that the laws meet our demands and are implemented justly.
After all, it really is about our autonomies, our sexual freedom and our rights to choose something other than the destiny they want to box us in as human vessels.
We won’t stop until we have the law and a cultural change. It will be legal #SeraLey”
It’s not just abortion
The struggle for reproductive rights is not limited to abortion but must be a struggle for reproductive justice and women’s bodily autonomy. The fact that women do not have the right to control their bodies, to have ownership of our own bodies is unacceptable. It costs lives; it continues to undermine our choices and destroys our futures. How can something as basic as a women’s control over their own bodies not be a fundamental principle of the societies in which we live?
Supporting women’s reproductive rights means supporting women’s choices of if, when and how many children they want to have. The decisions to have children, to have them at a particular time or not to have children at all are different aspects of the same right.
Women’s right to choose encompasses all this. Our decisions are contextual, not made in a vacuum. Whether we choose to have children depends not only on our incomes but our available support system (state benefits, available childcare and extended family support), as well as our personal beliefs and our other choices in life (e.g., attending university, working, and careers).
Reproductive choices must be free of coercion; that is, the state, charities and religious groups must not impose conditions on women. But women live in societies that do impose conditions on our choices. Our incomes (wages and benefits) are often low and we are often financially (and emotionally) dependent upon our partners and families. Women’s primary responsibilities in social reproduction (such as child care and care for the home and extended family) often mean that we work in low-paid part-time jobs which limit our choices due to lower income. Access to childcare is often prohibitively expensive and limited, and we may be unable to access reproductive healthcare due to private healthcare systems and the cost.
Race, class and disability mean women are affected differently. The needs of wealthier white women differ from women living with multiple oppressions. Religious beliefs and groupings we belong to may impact our choices. When we address the question of reproductive rights, we must understand that women’s choices are constrained depending on a host of differing historical and current experiences and circumstances.
So it is not enough to say we oppose coercion; we have to work to ameliorate the constraints under which women’s decisions are made. This means that a wide variety of contraceptives must be readily available to all (from short lasting to those effective for longer times, certain religions only allow specific forms of contraceptives), and economically accessible (preferably free) so that all women can choose if and when they want to have children or not.
Sterilisation: Opposing Abuse
While many were horrified that migrant women held by Immigration and Customs Enforcement (ICE) in a detention centre in Georgia this September allegedly had forced hysterectomies, this is not a new phenomenon but the latest incident of a racist and eugenicist policy of forced sterilisation of women in the US. The SCOTUS decision in Buck v. Bell (1927) enabled the forced eugenic sterilisation of those deemed “unfit and feeble. This law enabled states to set criteria for eugenics sterilisation and establish eugenic sterilisation boards which oversaw the process. This targeted the disabled and the poor (white and people of colour) who came into contact with social services when seeking government support. However, the primary victims of eugenics laws were working class women of colour.
According to Sanjana Manjeshwar in “America’s Forgotten History of Forced Sterilization” what happened in Georgia is another example of the racist policy of forced sterilisation in the US.
“Throughout the 20th century, nearly 70,0000 people (overwhelmingly working-class women of color) were sterilized in over 30 states. Black women, Latina women, and Native American women were specifically targeted. From the 1930s to the 1970s, nearly one-third of the women in Puerto Rico, a U.S. territory, were coerced into sterilization when government officials claimed that Puerto Rico’s economy would benefit from a reduced population…”
“Black women were also disproportionately and forcibly sterilized and subjected to reproductive abuse. In North Carolina in the 1960s, Black women made up 65 percent of all sterilizations of women, although they were only 25 percent of the population…”.
“Additionally, many Native American women were sterilized against their will. According to a report by historian Jane Lawrence, the Indian Health Service was accused of sterilizing nearly 25% of Indigenous women during the 1960s and 1970s. In 1973, the year that Roe v. Wade was decided by the Supreme Court, supposedly ensuring reproductive rights for all American women, the reproductive rights of thousands of Indigenous women were entirely ignored as they were forcibly sterilized.”
In Skinner v Oklahoma (1942), punitive sterilisation of repeat (male) offenders as part of their prison sentences was declared unconstitutional violating both the equal protection and due process clauses. However, this did not impact upon the procedures covered by Buck v Bell. In fact, the majority of forced sterilisations in the US occurred after the 1942 ruling.
While many states made forced sterilisation illegal in the 1970s, both forced and coerced sterilisation still exists. Between the period of 1997-2013, 1400 sterilisations occurred in California prisons; tubal ligations were performed on women in childbirth. Moreover, unknown numbers of cis and trans women were sterilised during routine abdominal surgery there.
Sterilisations justified by eugenics and a determination not to spend money on benefits are closely linked; coerced sterilisation is often attached to parole decisions for example. There are still debates about forcing welfare recipients to take contraceptives as a condition for receiving benefits. Given the historical link between racism, eugenics and social welfare policy in the US this is a deep concern. In the 1990s, the American Civil Liberties Union (ACLU) raised the danger of forced use of Norplant for those convicted of crimes and welfare recipients that began appearing in bills in state legislatures as a return to racist eugenics policies. While these bills were unsuccessful, they show this deeply reactionary logic remains a real threat.
Historically, in the US sterilisation has impacted women differently. Wealthy white women campaigned for voluntary sterilisation because the law required their husband’s permission. But disabled women, women of colour, poor women, women who did not fit stereotypical definitions of what is deemed proper behaviour were often denied to right to choose to have a child.
And forced and coerced sterilisation not only affects cis women. To this day, sterilisation is required in some countries (e.g., Japan) for trans people undergoing gender reassignment surgery and/or those requesting gender affirming ID. When forced sterilisation was declared illegal under European Human Rights Law in 2017, it required 22 member states to change their laws. The stated reasons for the sterilisation requirement relate to two primary points: 1) that being trans was a psychological problem and that those with psychological issues should not be parents; and 2) that traditional family structures were endangered if a trans person had children
Coerced and forced sterilisation also exists in other countries and invariably it is poor women, ethnic minority women and indigenous women that are targeted for forced and coerced sterilisation. Following the passage of a law in Peru allowing greater access to contraceptives and easing access to tubal ligations long sought by feminists, Fujimori’s government used this to forcibly sterilise 300,000 women and 22,000 men in the period between 1995-2000. These sterilisations were focused on Quechua-speaking and Aymara women; the majority of whom didn’t sign consent forms.
Health disparities are part and parcel of structural and systemic racism in the US. As Elizabeth Jekanowski states:
“The differences between white and Black women’s health experiences are alarming and the following statistics offer only a glimpse of this divergence. Black women are 22 percent more likely to die from heart disease and 71 percent more likely to die from cervical cancer then white women. Most demonstratively, they are 243 percent more likely to die from pregnancy or childbirth.”
“To reiterate, Black women are three times more likely to die from a pregnancy-related complication than white women with the exact same medical condition. This is true across educational and socioeconomic strata: in New York, Black college-educated women have more severe complications after childbirth than white women of the same age who did not graduate high school. Relatedly, Black infants are twice as likely to die before their first birthday than white infants — consistent across class and education — and the “weathering” of racial and sexual discrimination Black women face has shown to be a major determinant of infant and maternal health.”
The danger of white supremacy once again becoming the basis of social policy must be opposed and fought against.
This is an edited version of an article that initially appeared in the Anti-Capitalist Meetup on the Daily Kos.