There are a few states in the US that you can always count on to pass legislation that seeks to attack guaranteed civil rights, like voting rights, rights to protest and women’s right to abortion. They are a group of states who go out of their way to find ways of attempting to destroy hard fought rights brought about through struggle against oppression.
A number of them are in the South, parts of the Midwest and then there are Texas and Oklahoma, all of these states have been bastions of reaction for most of my lifetime. Demographic changes may alter the situation in these states in terms of who they elect, voter participation may impact on it, but the right-wing in the US is working very hard to do as much damage as they can, just in case they can overturn historical Supreme Court of the US (SCOTUS) decisions that contradict their beliefs and those of their so-called base.
We probably have to go back before the dustbowl to find something positive that Oklahoma has done; but one shouldn’t forget that in their overreach, they accidentally bring about a positive change. The SCOTUS decision (McGirt vs Oklahoma) in July 2020 where the treaties signed by the federal government were held as binding and could not be overturned by the state of Oklahoma irrespective of the state itself operating as if those treaties no longer counted. As such, the Native Americans were deemed to be responsible for justice in relation to crimes on land that belongs to them. This 5-4 decision has wide-ranging implications for other Native American tribes that have been trying to regain juridical and legal control over lands ceded to them in treaties with the federal government. Ah, the overreach of a reactionary state that actually was told that what they had done was a no-no and which resulted in a victory for Native Americans both in and outside Oklahoma.
Another overreach occurred in Kansas (2019) in Hodes & Nauser, MDS, P.A.; Herbert C. Hodes, M.D.; and Traci Lynn Nauser, M.D., versus Schmidt when the Kansas Supreme Court came to an obvious decision (6-1) that a law which banned a second trimester abortion procedure that passed the Kansas legislature was unconstitutional under the constitution of Kansas which guaranteed women’s rights of bodily autonomy.
“The Kansas Supreme Court has ruled that the state’s constitution fundamentally protects abortion rights, blocking a state law that aimed to restrict a common procedure and declaring that Kansans have broad rights to control what happens to their own bodies regardless of federal court decisions.
Judges ruled 6 to 1 on Friday that the Kansas constitution protects the “right of personal autonomy,” meaning state law cannot abridge the right “to control one’s own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation and family life — decisions that can include whether to continue a pregnancy.”
If other states have the same guarantee of bodily autonomy enshrined in their constitutions, guess what, this decision could impact them as well. Another oops! This decision was based on the right of bodily autonomy and not the right of privacy and in Kansas that means that anti-abortionists need a change of tactic as the problem with that law was not even an issue of being compliant with Federal law embodied in Roe and Doe, but rather state law. The only way to make abortion illegal in those states is to amend the state’s constitution which requires a different process than passing vile pieces of legislation.
Rise of the Right and the Normalisation of the Far Right
It should come as no surprise whatsoever, that the racists and white supremacists that are trying to revive Jim Crow legislations (as that is the only way that they can win elections and they are racists that utilise divide and rule regularly anyhow, they do believe in this racist crap); Texas’s governor Abbott not only passed a law widely restricting voting rights aimed at people of colour, the Legislature and the Governor also are behind the attack on abortion rights attempting to overturn Roe which SCOTUS refused to put a stay or an injunction preventing it from coming into law even though Texas “fetal heartbeat” law is in the Appeals Court where its constitutionality is under review and which inevitably will reach the SCOTUS who will decide whether they will rule on it. The same people that that are attacking voting rights, the right to protest and freedom of assembly, also the ones that are homophobic and transphobic and believe that women’s only legitimate social role is to be the incubator of the unborn.
It is not only happening in the US, this is part of the rise of the far right internationally and civil rights (e.g., the right to protest, freedom of assembly, freedom of speech, the right to vote, the right of choosing whom to marry, the right to gender self-identity, and the right of bodily autonomy) are under attack. It always starts with the most vulnerable and then spreads further. Attacks on abortion rights are happening in Europe as well as the US. The government of Poland (for example) instituted attacks on Trans and gay people and then went after women’s reproductive rights; of course, they are opposed to migration (and helping refugees) from non-white countries which may somehow threaten the wonders of civilisation based upon White Christendom (yeah, they don’t like Jews, Muslims, Buddhists, etc either).
These attacks in the US are often successful, at least temporarily … what is not clear as of yet is whether these attacks on basic civil rights will be held to be constitutional; there are civil rights granted by both state and federal constitutions and while they hope that these rights will be rolled back or abrogated by the current reactionary SCOTUS, there is no guarantee that this will happen or whether the SCOTUS will even choose to hear these cases or to overturn historic decisions.
When Coney-Barrett was asked by Amy Klobuchar about Griswold vs Connecticut (1965), Coney-Barrett’s statement that it is doubtful that a case around Griswold would be brought to the court many people took a deep breath understanding the implications of her statement. The gains in civil rights based on the right of privacy established in Griswold vs Connecticut (e.g., right to birth control for married and then single people, then for those ages 16 and above, the right to abortion, the right to homosexual relations and the right of gays to get married) form a network of civil rights won through hard struggle and their elimination or even their restriction would send the US tumbling back towards a time in which women and LGBT+ people were not even treated as second class citizens.
However, these decisions never established the legal right of bodily autonomy (a serious failing in my opinion). The right to privacy is as we know easily ignored, there are many instances like security threats and criminal activity whereby the federal government does violate the right of privacy constantly; for example, think of phone taps, the installation of CCTV cameras everywhere). But at least the decisions of Roe vs Wade (1973) and Doe vs Bolton (1973), guaranteed negative rights that are established in federal law which limit the power of states to deny women the right to an abortion.
These rights are negative in that while you have the legal right to do these things, the federal and state government are not required to provide you the means to access these rights. So, in the case of abortion, you have the right to have one, but whether the state facilitates that law by making abortions free at the point of demand or even free for those who do not have the money to access an abortion using Medicaid funds. In fact, that was the point of the Hyde Amendment and the usage of Federal Medicaid funds by states which allowed such extreme differences between states depending on the whether the foetus was a product of rape or incest or the mother’s life being endangered. As Dorothy Roberts argued in the final chapter of Killing the Black Body an essential part of struggle is making the right to abortion (and for that matter birth control) positive rights where the state is required to enable you to access the right itself. So, that would mean that not only do you have this right (it is legal), but it must be safe and free at the point of demand. This is the demand of women fighting for abortion rights all over the world.
It is not only the legality of abortion, but that we can access it even if we do not have money to do so. It is a step on the way towards legality of women’s bodily autonomy and it is an important step which never was completed in the US and which has been the basis of attacks on women’s reproduction rights, but most importantly a basis for reproductive justice which recognises that a women’s choice of whether or not to have children and how many and when differs between women due to class, racism, cultures and religious beliefs, history and personal experiences. Women of colour, disabled women and women of the working class not only want the right to abortion, they want the right to have children as well; this has often been denied due to forced sterilisation, forced use of contraceptives and pressure not to have children due to economic considerations, due to their impairments, and due to racism that are endemic in our societies. Unless, we discuss this as an issue of choice which recognises that reproductive decisions are constrained by a whole host of circumstances and that we need to mitigate these constraints, then we will never establish women’s right to bodily autonomy.
While the right in the US opposes women’s bodily autonomy, it is, of course, no surprise that their “bodily autonomy” whether to wear a mask or get a covid vaccine has become a major talking point during the Covid Pandemic. It is with deep bitterness and anger, on my part, that their bodily autonomy which impacts upon other people’s rights like their right to survive a pandemic or not have a lethal virus spread is far more relevant than women’s bodily autonomy to make decisions over their reproduction is opposed (which in actually doesn’t impact on the society directly, really the problem lies in their ideological perspective of us as incubators for the unborn and having no other worth). Hey, we are not even allowed to have property in our own bodies while their actions endanger everyone. The fact that they are using the bodily autonomy argument to uphold their rights while denying women their rights is wonderfully immoral for a group of people pretending to be fixated on morality. Note that morality never considers the reality that making abortion illegal means that women will once again die in backstreet abortions or due to conditions of pregnancy and birth.
Attacks on Abortion Rights
According to the Guttmacher Institute, 2021 looks like it will be a banner year for attacks on women’s right to an abortion. Since January, 561 abortion restrictions (including 165 abortion bans) have been enacted across 47 states.
“It is no accident that 80% of the 83 restrictions enacted this year were in states already considered to be hostile or very hostile toward abortion rights. The 2021 abortion restrictions largely build on earlier ones, as each additional restriction increases patients’ logistical, financial and legal barriers to care, especially where entire clusters of states are hostile to abortion.”
Since the Roe vs Wade case originated in Texas, clearly anti-abortionists there feel an extra special compulsion to overturn Roe vs Wade. Already, the state of Texas has enacted a whole host of pieces of legislation attacking women’s right to obtain an abortion. According to the Guttmacher Institute:
“Texas has enacted 25 abortion restrictions in the past decade. During this time, the number of abortion clinics in the state has been reduced by half. This new ban is effectively a near-total ban on abortion, due to logistical, legal and financial hurdles that patients would have to navigate in such a small window of time. There were seven million women of reproductive age in Texas as of 2019, and if legal abortion care in the state were shut down, the average one-way driving distance to an abortion clinic would increase from 12 miles to 243 miles, 20 times the distance.”
“Daniela Santamariña states “According to Guttmacher Institute […] if Roe v. Wade were overturned, 22 states would ban or severely restrict abortion access. Of those, nine states have pre-Roe abortion bans on their books that would become enforceable again if the precedent is overturned (Texas’s is permanently enjoined by a court order). And 12 states have passed post-Roe “trigger laws” — bans that would take effect in that case. Fourteen states and the District of Columbia have policies that explicitly protect the right to abortion.”
In fact, it was Texas HB 2 (2013) which was struck down by the SCOTUS in Whole Women’s Health vs Hellerstadt (2016). The Targeted Regulation of Abortion Providers (TRAP) laws were a recent attempt to attach absurd regulations on abortion providers to limit access to abortion. In the case of Texas, the number of abortion centres fell from 40 to 24 in the last decade when these and other regulations were introduced. These regulations included applying the regulations of ambulatory surgical centres (ASC) to abortion clinics and doctors’ offices where abortions are performed and regulations that doctors performing abortions have local hospital admitting privileges.
Given that doctors often come from out of state to perform abortions in some states due to threats of anti-abortionists this would eliminate abortion access completely in some states which of course would be a violation of women’s right to have an abortion in those states making them non-compliant with Roe); for example, Mississippi has only one abortion centre in operation, the same situation exists in South Dakota. Since the Legislatures and Governors in these states are hoping to overturn Roe vs Wade, this is not a problem for them and they have been trying to get a case to the SCOTUS which will serve this task.
As is normally the case when a State’s piece of legislation is under appeal, a stay was put in place and injunctions were issued preventing the laws from being put into practice by the SCOTUS. The regulations demanding that abortion providers had to fulfil ASC regulations and required doctors to have admitting privileges were struck down in Whole Women’s Health vs Hellerstedt (2016) as they placed an undue burden on women accessing their right to an abortion; undue burdens do relate to distances to travel, forced stays overnight, medically unnecessary tests which the patient has to pay for, as such the costs of securing your right place an undue burden. Inevitably, it is poor women living close to or below the poverty line that are most burdened by these laws. They cannot afford flights, motel bills, they may not own cars or if they are working they cannot take 2 days off from work. After rejecting the Texas TRAP law, the SCOTUS refused to hear cases from Wisconsin and Mississippi whose Appeal Courts ruled against their state’s TRAP laws.
According to the Guttmacher Institute, as a result of the passage of these laws, several regulations have been put in place and this is the case as of 1 September 2021:
- 23 states have laws or policies that regulate abortion providers and go beyond what is necessary to ensure patients’ safety; all apply to clinics that perform surgical abortion.
- 13 states’ regulations apply to physicians’ offices where abortions are performed.
- 18 states’ regulations apply to sites where medication abortion is provided, even if surgical abortion procedures are not.
- 17 states have onerous licensing standards many of which are comparable or equivalent to the state’s licensing standards for ambulatory surgical centers.
- 18 states have specific requirements for procedure rooms and corridors, as well as requiring facilities be near and have relationships with local hospitals.
- 9 states specify the size of the procedure rooms.
- 8 states specify corridor width.
- 8 states require abortion facilities to be within a set distance from a hospital.
- 5 states require each abortion facility to have an agreement with a local hospital in order to transfer patients in the event complications arise. (Including requirements on clinicians a total of 21 states require a provider to have a relationship with a hospital.)
- 12 states place unnecessary requirements on clinicians that perform abortions.
- 12 states require abortion providers to have some affiliation with a local hospital.
- 2 states require that providers have admitting privileges.
- 9 states require providers to have either admitting privileges or an alternative arrangement, such as an agreement with another physician who has admitting privileges.
- 1 state requires the clinician to be either a board-certified obstetrician-gynecologist or eligible for certification.
Of course, a number of states have passed what are called “trigger laws” which come into force if Roe is overturned by SCOTUS and will make abortion illegal in those states. According to the Human Defense website
“According to the Guttmacher Institute, 10 states have post-Roe trigger laws. That list includes Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Tennessee, and Utah. [Texas added a trigger law to the books earlier this in June 2021] Another nine have kept laws already on the books (not “trigger laws”) prior to Roe that will make abortion illegal. Those nine are; Alabama, Arizona, Arkansas, Michigan, Mississippi, New Mexico, Oklahoma, West Virginia, and Wisconsin. Finally, three states, Alabama, Tennessee, and West Virginia, have constitutional amendments explicitly stating the constitution does not recognize the right to abortion.”
Since this article was written (April 2, 2021) Texas has added a trigger law to the books in June 2021; that means that at the moment, there are 11 states that have post-Roe trigger laws.
Another tool used by anti-abortionists in various states since 2016 relates to the Fetal Heartbeat bill. Given the failure of the TRAP laws, moving to limit the time in which a woman can access abortion is the obvious step and Texas already had two failed “fetal heartbeats” bills first in 2013 and then again in 2019. The shift of the SCOTUS towards a more reactionary position has encouraged a number of states to introduce these bills.
Medically, the so-called fetal heartbeat makes absolutely no sense; first of all, we are talking about an embryo (the term foetus applies after the 10th week of pregnancy), second, the embryo does not have a heart at the time when its so-called heartbeat is heard – it is the place where eventually when the heart is formed there will be a heartbeat. This, like the bizarre idea that a raped woman cannot get impregnated by her rapist (based on a common place argument in the 18th century that a woman can only get pregnant if she enjoyed that sex that resulted in a pregnancy) , or that ectopic pregnancies can be replanted in the womb from the fallopian tubes (Ohio) has no medical foundation at all. Irrespective of the 2013 North Dakota heartbeat bill declared unconstitutional by the SCOTUS as it impinged upon Roe vs Wade which the SCOTUS did not want (or were unable) to overturn, 11 other state legislatures (including Texas) have been passing these bills from 2018 onwards.
However, they have a problem. North Dakota’s bill was declared unconstitutional as it violated Roe vs Wade where women’s right abortion is allowed up until viability. The North Dakota bill directly made it impossible for a woman to have an abortion, which meant that it wasn’t compliant with Roe as the states have a legal obligation to ensure the right to an abortion. So closing down all abortion centres, prohibiting women’s ability to have an abortion which is guaranteed under the constitution is a problem until Roe is overturned. Essentially, they are trying to push how far they can go with the hope of overturning Roe.
An additional point of attack by anti-abortionist relates to medication abortion. The drugs taken (Mifepristone and Misoprostol) are safe up to 70 days after the last menstruation and are approved by the Food and Drug Administration. There have been federal and state regulations in place forcing you to take Mifepristone in a doctor’s office, but Misoprostol can be taken at home.
However, the coronavirus pandemic had made that impossible as accessing a doctor during the pandemic was impossible. This led to the extension of existing networks through telehealth without having to be in the same room as a doctor. According to an article written in KFF in June 2021:
“Only patients in a limited number of states had access to medication abortions via telehealth prior to the COVID-19 emergency. During the COVID-19 crisis, 12 states issued policies that attempted to limit abortion access during the outbreak, such as deeming abortion “non-essential.” Most of these state policies have been blocked by court order or lifted as states start to re-open. In Arkansas, patients were required to have had at least one negative COVID-19 Nucleic Acid Amplification Test (NAAT) test in the 48 hours prior to the procedure. Effective August 1st, the Arkansas Department of Health released another directive rescinding the requirement for a negative COVID-19 NAAT test prior to elective procedures.
These new restrictions are in addition to existing barriers to abortion services. In 19 states, telemedicine abortion has been effectively prohibited; 5 states explicitly ban telemedicine for medication abortion, while 14 states require the prescribing clinician be physically present with the patient. The telehealth protocol is also not an option in the 26 states requiring patients receive an ultrasound before an abortion, and in the 12 states with in-person counseling requirements. This leaves 22 states and DC in which the telehealth protocol could be used to provide medication abortion.”
The extension of this existing telehealth network to access medical abortions during the pandemic provides a glimpse of what could exist in the US; however, allowing women to actually have control over when they take medicine is clearly far too much for anti-abortionists. In September, the Governor of South Dakota, Kristi Noem, banned health profession from providing abortion pills through telehealth providers. There is no questions that other states will follow suit; already by September 3rd, 2021 the Texas legislature had already passed a bill SB4 which will ban the use of abortion pills from 10 weeks to 7 weeks. The governor signed this bill in a special session and not only makes it illegal to take the pills after 7 weeks, it also prevents them being sent in the mail; the excuse for this measure was the fear that the easy availability of accessing medicine abortions due to the pandemic was going to be made permanent. But the reality is that while surgical abortions were decreasing in Texas, medicine abortions were increasing. This is a criminal offense under the new law which holds the doctors providing the medication liable, but it also clearly violates Roe .
The Texas Law: aka Texas SB8
On May 19th, Texas Governor Abbott signed into a law Senate Bill 8, a bill that bans abortion at 6 weeks of pregnancy. In that it is similar to other “fetal heartbeat” laws. As is obvious, most women do not even know that they are pregnant at 6 weeks; hey unless your periods are very regular, it may just be a little late which is not unusual. This is certainly inconsistent with Roe and is unconstitutional if it was administered by State Officials like other “fetal heartbeat” bills. But learning from earlier failures, the Texas Bill has come up with an answer that they hope will go around non-compliance with Roe vs Wade.
Rather than the state criminalising the woman getting an abortion, they have instead empowered ordinary citizens to sue for the amount of $10,000 any person that helps the woman get an abortion after the 6th week of pregnancy. So, that would be the abortion provider including all staff, anyone helping the woman getting an abortion (so if you take a cab, that could be your driver, if a friend drives you, that will be your friend, if someone helps with your travel out of state, that would be the one who gave you money). These people can sue people helping you get out of state and can sue anyone that helped you out of state.
In order to do this, they have allowed the creation of vigilantes, they can also be called bounty hunters or as I see it, they have re-enabled the Inquisition with a cash bonus. There is something in all of this that reminds me of Nathaniel Hawthorne’s The Scarlet Letter, with the exception that it is those supporting or assisting a woman to actually access her constitutional right to abortion who will be branded with the Scarlet A (I am actually surprised that they haven’t added this to the bill). Moreover, any act of solidarity or support for a woman seeking to terminate a pregnancy after 6 weeks makes someone liable for a $10,000 lawsuit (plus court costs) which is an interesting twist. Because these people do not work for the state (and in fact will make their money suing those assisting women to get an abortion), it is not the state itself that is enforcing the law. It will be civil and not criminal and essentially these vigilantes or bounty hunters or the Inquisition Posse will be making their money suing people for assisting women to get an abortion after 6 weeks.
Instead of criminalising women which would be non-compliant with Roe, they are removing their support network and isolating them. Women seeking an abortion after 6 weeks cannot tell anyone that they do not trust completely and who is willing and able to cover the fine if the Inquisition comes after them. These bounty hunters will not only get the $10,000, they even get their legal fees covered if their suit is successful. Even more lovely, if the civil suit goes wrong, they don’t even have to pay the defendants court fees whom they have wrongfully accused. In many senses, the law treats women having abortions as similar to children in that they are not held criminally liable for their actions. Needless to say, this law will isolate women needing support and solidarity during a difficult period and it will lead to nuisance lawsuits whose sole purpose is to bankrupt abortion providers and those offering assistance to women to obtain abortion whether deliberate or not.
The 5-4 SCOTUS refusal for injunctive relief that was requested by Whole Women’s Health is extremely worrying and it contained only one paragraph according to the NY Times.
“The majority opinion was unsigned and consisted of a single long paragraph. It said the abortion providers who had challenged the law in an emergency application to the court had not made their case in the face of “complex and novel” procedural questions. The majority stressed that it was not ruling on the constitutionality of the Texas law and did not mean to limit “procedurally proper challenges” to it.”
While not upholding the Texas Law but allowing it to into operation, they have created a situation that irrespective of Roe vs Wade not being overturned, they are in effect allowing a law which is probably inconsistent with Roe to be utilised in Texas and if found unconstitutional and reversed will already have led to further closures of abortion centres in Texas due to bankruptcies of abortion providers and those offering support being afraid to financially liable. Since those in another state can be sued (abortion is still legal up until foetal viability according to Roe in most states), they will sue Abortion centres in other states and those helping women leave the state to get an abortion in other states; bankruptcy means the closure of more abortion centres ... the more lawsuits, the higher the probability. Moreover, since it has been allowed to go forward in Texas irrespective of being in the Appeals Court, you can be really certain that other states in the US will be rushing this procedure into practice. Even if it is rejected by the SCOTUS, this action will bankrupt abortion providers in other states as well. That is what they are counting on …
If you have some extra money and can make a donation to help Texas abortion providers, Act Blue has compiled a list of those that can use your help, please give generously …
