The year 2013 nearly broke the all-time record for the most new restrictions on abortion passed in a single year. Some 22 states passed 70 different laws including late-abortion bans, doctor and clinic regulations, limits on medication abortions and bans on insurance coverage, according the Guttmacher Institute, a pro-choice research group. Twenty-four states have barred abortion coverage by the new health exchanges and nine of them forbid private insurance plans, as well, from covering most abortions.
More anti-choice laws have been passed in the last three years than in the entire previous decade. While Roe v. Wade still stands, in many places women are unable to actually get a safe and legal abortion.
In a small positive note, on Jan. 13 the U.S. Supreme Court declined to hear an appeal of a lower court decision overturning an Arizona law restricting abortion rights. Sgned into law in 2012 by racist Gov. Jan Brewer, the law banned abortions beginning at 20 weeks of fetal gestation. Because of the way it measured gestation, the Arizona law would have criminalized abortions two weeks earlier than other laws barring abortion after 20 weeks.
In May 2013, the 9th Circuit Court of Appeals in San Francisco ruled that the law violated “unalterably clear” legal precedents. The decision of the Supreme Court means the lower court decision stands.
Another right-wing tactic has been for states to require doctors performing abortions to have admitting privileges at a local hospital. This requirement has shuttered about one-third of clinics in Texas. However, these restrictive requirements have been blocked by courts in states such as Alabama, Mississippi, North Dakota and Wisconsin.
“I think we are at a potential turning point: Either access to abortion will be dramatically restricted in the coming year or perhaps the pushback will begin,” stated Suzanne Goldberg, director of the Center for Gender and Sexuality Law at Columbia University (New York Times).
New attacks on abortion rights coming down the pike
Sexist state legislators kicked off 2014 with a new round of anti-abortion attacks across the country.
• In Colorado, Ohio, North Dakota, and Tennessee, anti-choice forces are putting constitutional amendments on the ballot to give "personhood" rights to fertilized eggs.
• South Carolina is following Texas's example, trying to put clinics out of business by needlessly requiring providers to have admitting privileges at a local hospital.
• In West Virginia and Georgia, officials have launched investigations into clinics, fishing for any technicality to shut them down.
Mainstream pro-choice advocates limit struggle to electoral and legal arenas
The majority of people in the U.S. support a woman’s right to choose abortion as outlined in Roe v. Wade. The July 2013 filibuster of Texas State Senator Wendy Davis, although it ultimately failed to stop the passage of anti-choice restrictions, electrified and mobilized masses of women and their supporters, who were able to intervene directly into the legislative process in an impressive demonstration of grassroots power. In Albuquerque, a grassroots coalition mobilized and defeated a local ballot initiative to ban abortions after 20 weeks gestation.
As a result, in some elections, being perceived as being strongly anti-choice is starting to be a liability. In Virginia, Attorney General Kenneth Cuccinelli may have lost the governor’s race on account of his virulent anti-choice politics.
“I honestly believe we have shifted the momentum,” said Ilyse Hogue, president of Naral Pro-Choice America, a mainstream pro-choice group. To the New York Times she signaled her support of somewhat more pro-choice Democratic candidates running against Republicans in governor races in Ohio, Michigan, Wisconsin and Kansas.
Of course, keeping anti-abortion bigots out of office is an important task. The question remains, which direction should the pro-choice movement take? Should our energy be put into supporting Democratic Party candidates? Is this a viable strategy for defending and re-expanding abortion rights? In fact, hitching women's right to the Democratic Party is a guarantee that we will continue to only fight defensive battles against a rising tide of right-wing attacks.
While Roe still stands legally, and women's rights organizations have won some important battles through the legal system, in general the Supreme Court and other high courts have had a poor track record of defending women’s right to choose. In Gonzalez v. Carhart (2007) the Supreme Court upheld the so-called Partial-Birth Abortion Ban Act of 2003, a reactionary law that contains no exception for the health of the woman. This decision, decried by some as ranking with the Dred Scott decision, “so thoroughly mistaken as to be a landmark,” marked the opening salvo in the right-wing's incrementalist strategy of whittling away abortion rights.
Democrats' role in erosion of women's right to choose
The charge against abortion rights has been led by the extreme right, the mainstream wing of the Democratic Party, as exemplified by the Obama administration, has not forcefully defended the right to choose. The Democratic Party has a formal position of supporting women's right to choose, but there has been little beyond that in real terms.
The requirement to cover birth control medications in the Affordable Care Act is without a doubt a progressive step for women’s health, but the Catholic Church was given a compromise and the wrangling over this provision is not yet over.
The day after signing the ACA into law, Obama issued an executive order—this time without any press around—reaffirming that no federal funds could be used for abortion procedures. This outrageous concession to right-wing bigotry was part of a deal with anti-abortion Democrats who threatened to derail the insurance bill.
In July 2010, Obama’s Department of Health and Human Services ruled that under the ACA, a woman with a pre-existing condition such as cancer or heart disease will not be allowed to purchase—with her own money—an insurance plan that covers abortion, except in the case of rape, incest or if carrying the pregnancy to term will endanger her life.
In December 2011, the same department announced its decision not to make Plan B emergency birth control available over the counter to women under 17 years old, despite the recommendation of the Food and Drug Administration. Both of these decisions followed intense campaigns led by the religious right and the bishops of the Catholic Church. It was a clear capitulation by the administration to right-wing pressure against the interests of millions of women.
Due to mass struggle in the streets and in the courts, Plan B is now available over the counter without restrictions.
Jodi Jacobson wrote in Conscience magazine, the journal of the group Catholics for Choice:
“As a candidate, Obama said all the right things. As a president [he] has presided over the greatest erosion to women’s reproductive health and rights in the past 30 years, and a continuing degradation of our rights at the state level. Yet still he remains silent. Is Obama prochoice? Not by my definition.”
What does this tell us? That capitalist politicians are not always completely sincere? That is hardly worth pointing out. Rather, it tells us that it is not the views of presidents, members of Congress, and the Supreme Court justices are not the determining factor in bringing about change. Organizing on the ground is the decisive factor.
Right to choose won in the streets, not the courts
The initial decision in Roe was made at a time when the women’s movement was strong, in the streets and at an all-time high. Justices decided in 1973 to uphold women’s right to choice under the legal rubric of the defense of privacy. This was not because the Court was simply swayed by the arguments of youthful attorney Sarah Weddington, as brilliant as they were. The justices were responding to the rising militance of the women’s movement that was not only taking on reproductive rights, but fighting for women’s equality in all spheres of life, from access to “non-traditional” jobs, equal pay, the right to play sports and the right to live free from rape and domestic violence.
Of course, pro-choice advocates and organizations cannot simply will into being a mass women’s movement for reproductive rights. But there is a lot more that can be done. The right-wing is playing an endurance game, launching numerous attacks at the state level that continuously whittle away at abortion rights. Women’s advocates can and must fight back against these attacks in each locale. But we are fighting a losing battle if the movement's pro-active strategies revolve around electing nominally pro-choice candidates to state and federal offices.
The right wing has been extremely aggressive and forthright in their attacks in the media, the churches, advertising, picketing, and so on. That is the critical reason they have been advancing politically. While hard to measure, some polls indicate that the number of people identifying as “pro-life” has increased significantly since the 1990s. Of course, identifying as “pro-life” does not mean that a person will never actually have an abortion; there is ample evidence to suggest that so-called pro-life women access abortion at similar (or even higher) rates as their pro-choice sisters.
The legislative attacks and the aggressive campaigns of the anti-choice right wing have had an impact on public opinion, but a majority still appear to support a woman’s right to choose abortion, as outlined in Roe.
These poll numbers mean little if the pro-choice sector is largely passive. The right-wing's aggressiveness can only be answered with bold actions on the part of the women's movement, mass mobilizations and information campaigns to openly defend abortion rights and access.