On Monday, May 2nd, a draft majority opinion of the Supreme Court was leaked to POLITICO. The massive document, totaling 98 pages, is a “full-throated, unflinching repudiation” of Roe v Wade. Rather than trying to chip-away at abortion rights, the text demonstrates a legal and ideological attempt to completely undo federal protections of abortion rights. The five justices forming the majority are Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
According to POLITICO, Alito, the author of the majority opinion, builds the argument around the following scaffolding:
- The right to abortion does not exist in the constitution
- Abortion rights should be decided by states
- Changes in society make abortions less necessary
- US society had “an unbroken tradition of prohibiting abortion on pain of criminal punishment… from the earliest days of the common law until 1973”
Let’s be clear: this is an attack on women, the trans community, and the working class as a whole. This is a catastrophe and a wake-up call for the nation.
The Global and Historical Context of Abortion Rights
This is a horrifying, bold, power-play by the right-wing of the Supreme Court. They have jumped at the throat of Roe v Wade. But we shouldn’t be surprised. With the far-left unable to harness the energy of the Uprising, the period since then has been dominated by the reaction. While Russia invades Ukraine, Marine Le Pen nearly wins French elections, and Canadian truck drivers blockaded their own country, the far-right in the US has also grown bolder.
This is the context for the Supreme Court’s decision. While the far-right in the US has mainly tried to resist things like masks, vaccines, and the abolitionist movement, this move by the Supreme Court shifts them from defense to offense. They are not resisting something new, they aren’t holding back the march toward progress. Instead, they are actively moving us back in time. They are taking something away from us that many of us had taken for granted (while others warned us this day would come). In other words, the Supreme Court has become emboldened by this period of global reaction, a period that was fought for on the streets by the far-right. Reciprocally, while the far-right embolden them to undo Roe v Wade, this legal decision will embolden the street-fighters to take more initiative.
The context of the current attack on Roe v Wade is important because it contrasts so deeply with the context in which it was won. In the build-up to Roe v Wade, there was a global anti-colonial movement, exemplified most by the Vietnamese resistance to US invasion. In the US, this was mirrored by the Civil Rights Movement, the anti-war movement, and the women’s liberation movement of the 1970s. This context of the masses becoming radicalized and mobilized set the stage for victores like Roe v Wade. As the POLITICO article points out, “Roe was decided 7–2 in 1973, with five Republican appointees joining two justices nominated by Democratic presidents.” This wasn’t because those justices were closet radicals. They were responding to on-the-ground pressure from left-wing movements around the country and the world. These are movements which, in spite of the growth of groups like DSA, have yet to materialize in sustained street and workplace organizing.
Tear It All Down
Let’s consider the scaffolding that Alito has built up and see if it stands.
“The right to abortion does not exist in the constitution”
Alito writes, “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.” POLITICO added that, “Alito argues that the 1973 abortion rights ruling was an ill-conceived and deeply flawed decision that invented a right mentioned nowhere in the Constitution.”
Couldn’t agree more. The right to abortion, like any of the few rights we enjoy, are the ones that were fought for. Just as “we keep us safe,” the only rights we keep are the ones that we defend in the streets. It is precisely because the reproductive justice movement became primarily managed by politicians and NGOs that we find ourselves in this position. But we should also correct Alito. While abortion rights may not have been a part of our tradition before 1973, the militant movements that brought us abortion rights made it a part of our tradition ever since then.
“Abortion rights should be decided by states”
Alito added, “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion… Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
Just as the Supreme Court is trying to turn back time, they also reach into the past to find the tools they need. “States rights” were used to preserve slavery and Jim Crow. “States rights” have also been how the right-wing has picked away at Roe v Wade for the last 30 years. Apparently, states have more rights than women, and states use those rights to divide and conquer the nation. Time and again, left-wing movements have had to re-assert that our humanity stretches beyond binaries of state or federal, men or women, gay or straight, etc. The reproductive justice movement we need will have to ensure that abolitionism, trans-rights, immigrant rights, etc are all interwoven.
“Changes in society make abortions less necessary”
As POLITICO highlighted, “One passage argues that social attitudes toward out-of-wedlock pregnancies “have changed drastically” since the 1970s and that increased demand for adoption makes abortion less necessary.” Alito doubles down and adds, “Women are not without electoral or political power… The percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.”
This treats abortion rights as if they were abortion favors, helping women out when it was necessary, and that necessity is now over. But this fundamentally misses the point. First of all, while social attitudes may have changed about out-of-wedlock pregnancies and adoption since the 1970s, wages haven’t. Trying to be a parent in today’s economy is about miserable wages, gig work to make ends meet, and all while doing work that probably exposes you to one or more variants of COVID. Juggling these things while also navigating a society of racist police violence and states that have more rights than you, and it makes total sense that the right to abortion is as necessary as ever.
But let’s take it a step further, defending abortion is not about social attitudes or the degree of one’s electoral power: it is about the right to self-determination. Anyone should be free to have an abortion at any point in the pregnancy, no questions asked. To deny this right is to insist that some people must be incubators. In addition, to deny one section of society the right to self-determination is to legally and socially ingrain a second-class status. In other words, just as states rights legally divide and conquer us, denying a section of society their self-determination socially divides and conquers us.
“An unbroken tradition of prohibiting abortion on pain of criminal punishment”
Alito’s sharp analysis of US society is that it has, “…an unbroken tradition of prohibiting abortion on pain of criminal punishment…from the earliest days of the common law until 1973.”
A nation built on the ethnic cleansing of the indigenous peoples, on the blood and sweat of enslaved people, and on the exploitation of immigrants is exactly the kind of country that would have “an unbroken tradition of prohibiting abortion on pain of criminal punishment.” On this, we are in agreement.
The Time is Now
Every crisis can turn into either a catastrophe or an opportunity.
Just because things look dark now, that doesn’t mean they have to play out that way. If we fail to mount a defense of Roe v Wade, the hits will keep coming. Alito writes, “We emphasize that our decision concerns the constitutional right to abortion and no other right… Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” But we all know this is a lie. This will only be the beginning, testing the waters to see how close the far-right can bring women back to kinder, küche, kirche, as well as a host of attacks on trans rights, Black communities, immigrant communities, etc. If this doesn’t meet resistance, then we truly are facing an utter catastrophe.
But if this inspires rage, then we can turn this horror show into an opportunity. This is the time to deepen our understanding the interconnections between abolitionism and feminism, like through the Abolition. Feminism. Now. book club started by Chicago DSA’s Socialist Feminist Working Group, the DefundCPD Campaign, and Chicago AfroSocialists and Socialists of Color. Now is the time to get involved with and donate to abortion funds around the country. Now is the time to initiate protests and revisit the idea of mass-marches on Washington, DC. to get a sense of our collective rage and support.
Now is the time to tie all of these approaches together, and more, and use them as opportunities to meet like-minded people abortion supporters. We can turn those connections into a movement that is capable of expanding abortion mutual aid across state lines while retaking the streets to build a holistic movement like the one that fought for Roe v Wade in the first place.
We learned about Alito’s majority opinion because of a leak. As POLITICO pointed out, “Deliberations on controversial cases have in the past been fluid. Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months.” In other words, this leak bought us two months to mobilize. There is no guarantee what, if anything, can be accomplished in that time. But win or lose, the relationships we forge in the process can persevere and lay the foundation for the next fight.
What needs to be kept in mind is that, as long as class society exists, all the reforms we win will eventually be neutralized or rolled-back. A renewed, abolitionist, feminist, reproductive justice movement will have to embrace BIPOC and trans communities, will have to embrace the re-emergent labor movement, and will have to challenge every aspect of our capitalist society, including tearing down the Supreme Court itself, and overthrowing the entire system.
Join Chicago DSA this Saturday, May 7th at noon at Federal Plaza for We Won’t Go Back: Rally To Defend Abortion Rights.