Watching Amy Coney-Barrett’s confirmation proceedings for the SCOTUS, there were several distressing exchanges that occurred. One that stands out occurred during Senator Amy Klobuchar’s questions where a discussion of what Coney-Barrett considered a super-safe decision; one that was so important that its conclusions were unchallengeable. The judgement raised by Senator Klobuchar related to Griswold v. Connecticut (1965) which was a landmark decision establishing the right of marital privacy as the basis for married couples to obtain birth control and the right of privacy for intimate decisions as well as establishing the right of privacy as a right guaranteed from government intrusion.
Essentially, this decision established the right of privacy irrespective of not being explicitly stated in the US Constitution. This fundamental decision provided the basis for guaranteeing a whole series of decisions which many of us take for granted; 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 Relations (Lawrence v. Texas, 2003) and the right to Same Sex Marriage (Obergefell v. Hodges, 2015). Coney-Barrett’s response was more than a bit disconcerting; she refused to directly answer Klobuchar’s question stating that it was doubtful that a case would be brought to the SCOTUS directly challenging Griswold; this implied (for many watching this hearing) that if a case was brought that challenged Griswold she didn’t hold it as a safe decision.
The impact of a reversal of Griswold would be devastating; as an understatement Coney-Barrett’s reply was chilling. While granting that although she is willing to hear a case challenging Griswold there is (thankfully) no guarantee that the rest of the SCOTUS would also be willing to re-examine Griswold. However, given the spate of cases challenging the right of women to have abortions, nothing should be seen as surprising with this court. 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 was deeply concerning.
Abortion Rights in a post-Roe US
With Coney-Barrett on the SCOTUS, there is no doubt that Roe and Doe will be certainly be weakened and probably overturned and there are a number of cases that can be used to do this; many states are vying to be the state whose law is responsible for overturning both Roe and Doe which would essentially send the decision about the right of women to have abortions back to the states. According to the Guttmacher Institute, sending abortion back to the states 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 along with Caitlin Myers of Middlebury College and Advancing New Standards in Reproductive Health (ANSIRH) at the University of California, San Francisco, 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 the increased travel time would range from 1 to 791 miles – on average this would amount to an increase in travel to 249 miles and that this would affect 39% of women in the US. They estimate that the number of abortions would decrease due to the insurmountable travel barrier. But as we know, making abortion illegal does not stop abortion; it simply makes getting them unsafe and dangerous. Inevitably even if new centres opened up near to state borders where abortion is illegal, women who cannot afford to travel and cannot afford to pay for the procedure will die from back-street abortions. This is unacceptable; an abortion support network (like the one that exists in Great Britain may provide some assistance for those living in states where abortion is illegal. But getting costs covered is not enough, it may be impossible for women to travel, especially younger ones.
One would think that in this day and age the struggle over women’s reproductive rights would have stopped being a struggle; alas that is not true. While both Ireland and North Ireland now allow for legal (and hence safe) abortion, that is not the case throughout Europe as abortion is illegal in Malta, Andorra, Vatican City, San Marino and Lichtenstein.
Polish Protestors opposing the attack on abortion rights
While the proposed legislation introduced by the governing Law and Justice Party to ban abortion in Poland (2016) was defeated following mass protests, Poland’s Supreme Court (a stacked court mostly appointed by the ruling Law and Justice Party) declared one of the most common legal reasons for abortion legal reasons for an abortion that is, “the probability of a severe and irreversible fetal impairment” unconstitutional. This leaves the danger to a women’s life and health and the pregnancy being the result of a criminal act as the only legal grounds for an abortion in Poland. As in 2016 massive protests erupted in Poland and other countries around the world in solidarity with Polish women.
Many countries around the world still ban abortion, some only allow it if the mother’s life or physical or mental health is endangered by the pregnancy.
A sea of green scarves representing the National Campaign for the Right to Legal, Safe and Free Abortion in Argentina, 2020
A massive struggle over the legalisation of abortion in Argentina is ongoing. A 15 year campaign called the “National Campaign for the Right to Legal, Safe and Free Abortion” has led the struggle to secure abortion rights in Argentina. 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
Most importantly, the struggle over reproductive rights and reproductive justice is not limited to abortion. The most important thing that we must always remember is that the struggle for reproductive rights must be a struggle for reproductive justice and women’s bodily autonomy. The fact that women do not have the right to control their own bodies, to have that property in their bodies that were advocated by Enlightenment Scholars like Locke is more than absurd. It has cost us our lives, it continues to undermine our choices in life and it destroys our futures. How can something as basic as a women’s control over her own body not be a fundamental principle of the societies in which we live?
When we say that we support women’s reproductive rights and their right to choose, this relates to supporting women’s choices of if, when and how many children they want to have. The decision to have children, the decision to have them at a particular time and the decision not to have children are different sides to the same right. Women’s right to choose encompasses all these issues and we must understand that these decisions are contextual and not made in a vacuum. Whether we can afford to have children depends not only on our incomes; our available support system (including state benefits, available childcare and extended family support), our personal beliefs, and our other choices in life are all relevant to the decision.
We must demand that all reproductive choices must always be free of coercion; that is, there must be no demands on the part of the state, charities and religious groups that impose conditions on women’s reproductive rights. But women live in societies that do impose conditions on our choices.
Our incomes are extremely relevant (wages and available support and benefits) and we are often financially (and emotionally) dependent upon our partners and families which does impact our choices. 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 also limit our choices due to lower income, access to childcare is often prohibitive and limited, and there is also our inability to access reproductive healthcare and contraceptives due to private healthcare systems and the costs of contraceptives. The impact of race, class and disability affect women differently. The needs of wealthier white women will differ from women that live with multiple oppressions which definitely mean that they have both differing historical and current experiences that impact their decisions. Finally, there is the role of religious beliefs and groupings that we belong to that may impact our choices. Whenever we address the question of reproductive rights, we must understand that women’s choices are constrained choices depending on a whole host of experiences and different constraints.
So the issue is not only one where we declare we oppose coercion; we must recognise that choice is constrained and we must endeavour to ameliorate the constraints under which women’s decisions are made. So if we are going to discuss reproductive rights, 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
An additional consideration is the issue of sterilisation or permanently preventing women having children. Historically, in the US the issue of sterilisation has also impacted women differently. For wealthy white women, the issue of voluntary sterilisation was important; doctors required permission of the husband to undergo the procedure. But for disabled women, for women of colour, for poor women, for women that did not fit into stereotypical definitions of what are deemed by society as proper behaviour of a women, the issue often came down to the actual possibility of choosing to have a child.
While many people were horrified by allegations of hysterectomies of immigrant women being held by ICE in a detention centre in Georgia earlier this year what many people did not know is that this is not a new phenomenon but the latest account of a racist and eugenicist policy of forced sterilisation of women in the US. From the passage of Buck v. Bell (1927) forced eugenic sterilisation of those deemed “unfit and feeble” became legal in the United States; this law enabled states to set criteria for eugenics sterilisation and establish eugenic sterilisation boards which oversaw the process. Eugenic sterilisation 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 at the ICE detention centre in Georgia is yet another example of the historical use 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. Sterilization was so common that it became known as “La Operación (The Operation)” among Puerto Ricans.
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. One Black woman who was subjected to a forced hysterectomy during this time was Fannie Lou Hamer, a renowned civil rights activist. Hamer described how nonconsensual sterilizations of working-class Black women in the South were so common that they were colloquially known as a “Mississippi appendectomy”.
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 decision did not impact upon the eugenics sterilisation procedures covered by Buck v Bell and 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 in California prisons.
The linkage between eugenics sterilisations and cost-saving social policy relating to welfare is still closely linked; coerced sterilisation can be attached to parole decisions for example. The fact that there are still debates about welfare recipients being forced to take contraceptives to receive benefits should make you very concerned given the historical linkage between racism, eugenics and historical social welfare policy in the US. In the 1990s, the ACLU raised the danger of forced use of Norplant for those convicted of crimes and welfare recipients that began appearing in state legislatures (reproducing the concerns that we see in the whole discussion of eugenics sterilisation and its linkage to keeping costs down in covering social policy) as a return to racist eugenics policies. While these bills were unsuccessful, eugenics, racism, and white supremacy are closely intertwined in the US.
Coerced and forced sterilisation of course exists in other countries and invariably it is poor women, ethnic minority women and indigenous women that have been targeted for sterilisation. Following the passage of a law in Peru allowing greater access to contraceptives and easing access to tubal ligations that had been long sought by feminists, the government of Fujimori used the law 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 never signed consent forms.
The danger of white supremacy once again becoming the basis of social policy must be fought against; we need to recognise the existence of health disparities as 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.2 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.3
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.4 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.5 Relatedly, Black infants are twice as likely to die before their first birthday than white infants — consistent across class and education — and the “weathering”6 of racial and sexual discrimination Black women face has shown to be a major determinant of infant and maternal health.7”
Forced and coerced sterilisation under the guise of eugenics as well as cost cutting social policies can be found in many countries and affects not only 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. While forced sterilisation was declared illegal under European Human Rights Law in 2017, it required 22 member states to change their laws. The reason 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. 22 member states in the EU had these laws; it would be unbelievable if it weren’t true.
