The overturn of Roe vs Wade and Casey vs Planned Parenthood by the Supreme Court of the US (SCOTUS) on 24th of June 2022 had several immediate effects. The elimination of a 50 year old civil right by a politically appointed unelected SCOTUS had an immediate effect on women; they understood that their right to bodily autonomy was no longer guaranteed in the US as a whole. Being reduced to second class citizenship by a politically appointed body whose majority support a right-wing Judicial philosophy Originalism seeking to interpret the US Constitution consistent with what they believe were the “motivations of the founding fathers” enshrines an idea of law that is immutable and unchanging rather than adaptive to changes in society. In essence, it traps judicial interpretation in the 18th Century as though society has not changed; as such the law becomes a bizarre absolute; independent of historical and societal development and transformations. Combined with other recent decisions since the appointment of Amy Coney-Barrett, Dobbs exploded the fantasy that somehow the SCOTUS was independent of (and hence transcended) political machinations.
The majority opinion in Dobbs vs Jackson’s Women’s Health Organization decided that there was no constitutional basis for Roe and Casey (specifically the constitution doesn’t mention abortion and the 14th Amendment does not guarantee it), that the right to abortion was not consistent with any historical precedent or legal opinion around abortion rights at the time of the passage of the 14th Amendment, and as such these decisions “short-circuited the democratic process” bypassing both state and federal legislatures. As such, they sent the political struggles over the right to abortion “back to the states” supposedly to have a democratic debate on abortion rights.
The fact that a SCOTUS majority opinion was based around historical legal precedent (both in Britain and the US) relating to abortion laws in the 17th and 18th century in Britain and the 19th Century US that related to a specific religious doctrine (e.g., the quickening which is a bizarre Christian notion about when the soul enters the body of the foetus) is shocking.
But it also raises the fact that there is not an established church in the US (unlike Britain) and that this is specifically stated in the US Constitution. The current interpretation of the Establishment Clause ensuring the separation of church and state and the protection of minority religions as well as the right to not believe in god/gods seems to be a clear target of this right-wing dominated SCOTUS. Is there a new interpretation of the Establishment Clause of the First Amendment of the Bill of Rights in the works? Quite honestly considering recent decisions like Carson vs Macon (21st of June 2020) allowing public funds to be used to cover private religious schools) and the Kennedy vs Bremerton School District (June 27th 2022; concerning prayers on the 50 yard line by a football coach) decisions and the Dobbs vs Jackson’s Health Organization indicates that this may be the case.
While we are quite used to laws and legislation that protect the interests of the ruling class (e.g., property law, tax laws, elimination of regulations against pollution), this recent move towards a tyranny of the minority based on religious beliefs of the most extreme Christian religious fundamentalists is more than a reactionary turn; it sets the stage for further restrictions of even the limited democracy that exists in the US.
National Issues and Democracy
From its beginnings (and contrary to all the propaganda), democracy has been limited in the US. Slaves and Native Americans were counted in the Constitution as partial human beings for reasons of ensuring more representatives in states which utilised slaves. This was enshrined in the Constitution; thereby giving slave states more representations/legislators despite neither slaves nor Native Americans being viewed as people and allowed to vote.
Property qualifications limited the votes of white men; women were also not granted the right to vote in the original US Constitution. Even the creation of the Senate (where each state has 2 seats irrespective of population) to provide checks on the power of the House (read the Federalist Papers) and the creation of the Electoral College ensured that it the popular vote does not determine who is elected President; US democracy has always been limited. Fears of actually empowering the population by granting universal suffrage (despite the use of Paine and Locke for propaganda purposes during the Revolution) has been a long-term struggle for blacks, women, and those without property and the suffrage faces continuing attack.
Systemic and structural racism has always limited American democracy and it has been weaponised against Black Americans regularly. Following Reconstruction, using terror by both the state and white supremacists, Jim Crow Laws, and gerrymandering enabled southern Democrats systematically to undermine black suffrage in the US. The Civil Rights movement forced the passage of the Voting Rights Act (1965) by Democrats, causing the abandonment of the Democratic Party by white supremacists (both politicians as well as citizens).
The weakening of the Voting Rights Act by courts and the rightward shift of Republicans has revived overt attempts to suppress black and democratic voters. To remain in power, Republican-dominated state legislatures again use voter suppression laws and gerrymandering to undermine the power of people of colour and Democratic voters. It is debateable whether elected state and federal representatives actually can be said to reflect the “will” of the voters further undermining the belief of citizens that candidates and elections themselves reflect their concerns.
Although the overturn of Roe and Casey was evident from SCOTUS oral arguments and the leaked draft of the SCOTUS majority opinion, President Biden and Congressional Democrats literally sat on their hands before Roe was overturned. While the Women’s Health Protection Act protecting federal abortion rights passed the House of Representatives, it failed in the Senate due to the filibuster. The refusal to eliminate the filibuster (another product of Jim Crow Legislation) which would have allowed passage on simple majority means there is no Federal law to protect the right of abortion.
AOC’s suggestions allowing abortions on Federal land in states where abortion is banned or extremely limited were ignored by Biden; recently veterans’ access to abortion at federal Veteran Administration centres was granted under limited circumstances still governed by the Hyde Amendment (i.e., life of the mother, rape and incest) which has not been overturned.
Despite the claims of the SCOTUS that the decision over abortion will be sent back to the states, the truth has come out and if anyone is surprised, their heads have been buried deeply under the ground. When the draft majority decision was leaked in May, Mitch McConnell said a federal abortion ban was possible but would not alter the filibuster to enable it. Despite overwhelming support for the right of abortion, on the 13th of September Lindsay Graham has introduced a bill calling for a national 15 week abortion ban.
It is important to note that despite calling the bill, ‘‘Protecting Pain-Capable Unborn Children from Late-Term Abortions Act,’’ 15 weeks is not considered a late-term abortion (which is a political demarcation not a medical one) and that begins at 21 weeks.
Not only has Graham demonstrated what we knew all along, that the aim of the overturn of Roe and Casey was for a national ban rather than the bullsh*t stated by the SCOTUS that the decisions would fall to the states determining abortion access (yes, they were lying, quelle surprise). What he is also trying to change is the perception of what a late-term abortion is. Decreasing the political (and not medical definition) of what a late-term abortion is means that shorter and shorter periods of access will exist. There is no medical reason for a 15 week limit, nothing happens at 15 weeks that demarcates it in terms of gestation.
As pointed out by Natasha Lennard, the medical definition of foetal viability is not until 24 weeks; so what does 15 weeks have to do with anything relating to foetal gestation. Making 15 weeks a demarcation period for late-term abortions is only an attempt to make an ideological point changing the understanding what late-term means. The shorter the time where you can get a legal abortion, the less time pregnant people have to make their choices. But how can 15 weeks be late term; it is less than 4 months and way before foetal viability? The cynicism of anti-abortion politicians about pregnant people’s lives and bodily autonomy merely demonstrates the attacks on democracy in the US. Even if the Republicans win both the House and Senate, it is questionable whether they can get 60 votes in the Senate (even McConnell admits this) for limiting abortion access to 15 weeks. Moreover, some anti-abortion groups oppose 15 weeks as there are states that either have banned abortion completely or have limited it to 6 weeks of pregnancy; 15 weeks at the federal level undermines their misogynistic efforts. Graham’s bill lays bare the lie that the overturn of Roe and Casey was all about democratic decision making by voters.
The SCOTUS overturn of Roe citing the need for democracy to decide the status of abortion is almost risible. American democracy is constrained. Already, the Hyde Amendment limited use of Medicaid funds for abortion in some states to mother’s life, incest and rape; the Hyde Amendment still exists. This of course impacts those with lower incomes, especially people of colour who due to racism have lower incomes and less access to skilled jobs and lower wealth accumulation. Many states had restrictions on access as well as few centres where abortion could be accessed. Access to medical treatment relating to reproductive rights was also constrained meaning that women of colour didn’t have the access they should have had. Despite the majority of Americans supporting Roe, state legislatures continued limiting access to abortion vying to be the state to overturn Roe.
That honour fell to Mississippi whose law limited abortion access to 15 weeks was used to overturn Roe and Casey completely. The overturn of the right to abortion has been long in the making with various limits and restrictions added to state laws over the years; many of these had been rejected as unconstitutional over the years.
In some states, strengthening access to abortion began before Roe was overturned. Several states allowing for Medicaid funded abortions began to pass legislation allowing out of state access to Medicaid funding for abortions. Abortion support networks (e.g., NNAF) have been fundraising and organising logistics to help those forced to seek surgical abortions in another state.
Prior to Roe’s overturn, some state legislatures had passed “Trigger Laws” outlawing or severely restricting abortions when the SCOTUS overturned Roe vs Wade. According to the Guttmacher Institute, one month after the overturn of Roe and Casey, 11 states had either banned abortion completely (Alabama, Arkansas, Mississippi, Missouri, Oklahoma, South Dakota and Texas) or restricted it to 6 weeks (Georgia, Ohio, South Carolina and Tennessee); prior to the 24th of June there were 71 abortion clinics in these states; after one month, that number was down to 23 primarily in the states allowing abortion up to 6 weeks of pregnancy.
The fact that some state abortion bans (e.g., Texas and Oklahoma) place travel restrictions by pregnant people to states where abortion is legal represents a significant threat to basic liberty of those that can get pregnant has not yet been addressed by the SCOTUS despite their examining the Texas law allowing civil suits against those that either willingly or unwillingly assist pregnant people to leave the state, although President Biden stated that this would not be allowed. But it is not clear how he will stop it. Who would think in this day and age, laws need to be passed to allow those that can get pregnant the right to travel unhindered?
The question is an important one. Will all women need to prove that they are not pregnant to use public transport, a taxi, a train to another state? Will cars be stopped at the border to ensure that no pregnant person leaves the state? Will state lists of pregnant individuals be forwarded to the police or individuals (i.e., vigilantes) to watch women? If pregnancy registers are created (let’s ignore the right to privacy implications), what will inevitably happen is that those that are pregnant who do not want to have a child will not go to doctors out of fear of being reported to the authorities. This will mean that ectopic pregnancies and other complications associated with pregnancies will not be picked up early enough to protect the life and health of a pregnant person.
While many expected Republican dominated state legislatures and anti-choice governors to move immediately to further restrict or ban abortion outright, this has been a slight delay. Attempts to use pre-Roe bans (e.g., Michigan, Wisconsin, West Virginia) faced legal challenge and temporary injunctions against bans are in place while legal battles continue.
Despite popular majorities supporting Roe and opposition to eliminating abortion access completely, bans and extremely restrictive anti-abortion laws are passed by Republican controlled state legislatures. In Florida and Kentucky, abortion rights are being reduced to 15 weeks. South Carolina’s legislature tried to pass a total ban, which failed due to divisions amongst Republicans on exemptions for rape and incest.
There is no question that the case of the 10 year old Ohioan rape victim that had to go to Indiana to get an abortion due to Ohio’s severe restrictions has had an impact on rapid moves by Republican controlled states; reality often does impact upon abstract notions.. The politicisation of this horrific situation by Republican politicians angered many people and exposed the true impact of anti-abortion laws.
Kansas joining the US (1861), created a violent struggle about its status as a free or slave state. The abolitionists won, enshrining constitutionally the right of property in one’s own body. In 2019, the Kansas Supreme Court ruled abortion rights guaranteed by state constitution; the law to make D&E abortions illegal was unconstitutional. This was decried by anti-choice politicians who vowed to change the constitution. On the 2nd of August 2022, Kansas held a vote on whether to change the state constitution to make abortion illegal and voted no. Despite how right-wing and religious the state is, removing bodily autonomy from women while maintaining it for men didn’t sit well; a major defeat for anti-choice politicians and religious organisation. Other state constitutions may have a similar clause especially if they joined the US close to the Civil War.
On August 6th, the Indiana Legislature passed the first post-Roe abortion. The Indiana abortion ban went into effect on the 15th of September. The ban is almost total allowing abortions for rape and incest capped at 10 weeks to be done in a hospital; if there are serious risks to life and health of the pregnant person and a lethal foetal abnormality, these can happen up to 5 months. The ban is facing two lawsuits, first, questioning the unconstitutionality of the ban and the second about the denial of religious freedom of Jews. These will be heard on September 19th. A lawsuit filed by Jews in Florida around 15 week limits to abortion also cited constitutional guarantees of freedom of religion.
While enforcement of the pre-Roe Abortion Ban in West Virginia was blocked in July, the state legislature passed an abortion ban on the 13th of September allowing abortions in medical emergencies and up to 8 weeks for adults (14 weeks for minors) in the case of incest and rape which must be reported to the law enforcement. The current governor has signed anti-abortion laws before and this latest ban will be signed.
The reality that democratic debate on the issue will be allowed in states is laughable. Due to voter suppression laws and gerrymandering, legislatures are not truly representative of the opinions and demographic makeup of their populations especially in states under Republican control. The early suspension of the census will enable states that use voter suppression laws and gerrymandering to block democratic participation. This will only make the so-called “debate” on abortion laws a debate in name only. In many cases, for democracy to actually exist, citizens must get around the state legislatures who are passing laws blocking abortion access. With only 30% of the population in every state supporting abortion laws, it is impossible to argue that banning abortion is supported by state populations.
State Citizen Initiatives
However, many US states do allow voter-initiated plebiscites on their ballots. However, republican dominated legislatures are placing requirements on these initiatives to make it harder for them to be on the ballot.
According to David Leib:
“About half the states allow citizen initiatives, in which petition signers can bypass a legislature to place proposed laws or constitutional changes directly before voters. But executive or judicial officials often still have some role in the process, typically by certifying that the ballot wording is clear and accurate and that petition circulators gathered enough valid signatures of registered voters.”
In Michigan, a citizen’s initiative to keep abortion legal got over 755,000 signatures. Michigan anti-choice politicians and campaigners claimed word spacing made the initiative incomprehensible trying to block it being on the November ballot; following appeals, the Michigan Supreme Court allowed it on the ballot.
In South Dakota, before the overturn of Roe and after several citizen initiatives by anti-abortion campaigners to block abortion access failed, the Legislature and the Governor passed anti-abortion laws that were not consistent with the Hyde Amendment prior to Roe’s overturn. Currently abortion is illegal in South Dakota and is considered a class 6 felony with exceptions only for the life of the “pregnant female.” There is a proposed initiative allowing abortions in South Dakota scheduled for 2024 that will make abortion legal if all the hurdles required for a citizen’s initiative to get on the ballot could be completed. The issue really comes down to people having to go around the legislature because a total abortion ban doesn’t have the population’s support.
Getting around the legislature is becoming harder; more often Republican controlled states create unnecessary rules (this shares a lot with state abortion rules like TRAP Laws) to block these initiatives. Increasing the percentage needed to win the vote, outlawing out of state funding, and making it harder to get on the ballot are routine. The issue comes down to accessing democracy in a situation whereby the state legislatures are bypassing the electorate.
Florida formally allows initiatives, but if opposed to Republican policy, like raising the state minimum wage, allowing former felons to vote and legalising medical marijuana, the initiatives are ignored by or overturned by the Republican controlled legislature. Despite the initiative allowing former felons to vote passing in 2018, the Florida Legislature (2019) added a new requirement demanding former felons pay all court-ordered fees, fines and restitution. This is a revival of Jim Crow legislation used to prevent black people from voting; but the state miscalculated badly as there are not only black felons despite the disproportional imprisonment of people of colour. A new citizens’ initiative is being proposed which will allow all to vote despite debts, but it needs to get on the ballot and win 60% of the vote to pass.
Some final thoughts …
Democratic deficits are not specific to the US, nor is the US the only advanced capitalist country where attacks on democratic rights are happening. Hard-right politicians are in power in some countries, fascist parties are increasing their vote share in elections. Fascism itself is being normalised as the far-right is brought into supposedly mainstream right-wing political parties and government coalitions.
Attacks on democracy have included limits imposed on the right to vote, freedom of protest, freedom of assembly, freedom of speech, the right of bodily autonomy, and the right of workers to strike. The cynical misuse of claiming that Roe and Casey by-passed democracy by the SCOTUS majority as they themselves undermine democracy itself and the will of the people presents a grotesque situation.
This is magnified as state legislatures undermine voting rights, the rights of bodily autonomy, banning books in schools, allow attacks on protestors, and limit citizens’ initiatives for the sole purposes of staying in political power and advancing a right-wing political, social and economic agenda. It is no longer possible to pretend that this is an aberration, as those advocating these attacks are in political power and they have support among their constituents. The power of the far-right is increasing, not declining, and we are headed towards further attacks on our civil and human rights. Many mainstream politicians do not even understand (this is not about “conservatism”) and do not know how to fight often viewing the left and those supporting preserving democratic rights as a bigger enemy due to what they perceive as a threat to the economic system that they are pledged to protect.
Call it a democratic deficit if you want, but creeping fascism is a far better description of the situation. In some states in the US, fascism has gone way beyond creeping. Stopping this in its tracks will not be done unless we fight for it; all changes that we have demanded historically required struggle to force politicians to move. There is no reason that this will change now and in the future. This is a struggle that we cannot pretend doesn’t exist or treat it as an aberration. We need collective organisation and autonomous self-organisation of the oppressed to do this fight and hope to win it.