WASHINGTON—Declaring they would never give up the fight for reproductive choice and legal abortion, approximately 1,000 pro-choice advocates literally ringed the Supreme Court building to publicize their cause, hours after the six right-wing justices on the nine-member Court indicated they were ready to end abortion rights in much if not all of the country, starting with upholding the restrictive Mississippi law.
The demonstrators made the point that the inclinations of the Trump-appointed judges fly in the face of majority opinion in the U.S. which is that abortion should be legal in all or most cases because it is a fundamental constitutional right.
The right-wing majority of the justices indicated by their comments and questions that they will likely end up killing the constitutional guarantees in Roe v Wade without formally scuttling the ruling that has been in place for 50 years. The 1973 decision established a Constitutional right to abortion and prohibited states from banning the procedure before fetal viability, currently around 23 weeks.
The six right-wing justices seemed to be unconcerned. Their comments and questions indicated they are leaning towards keeping the form of Roe v Wade, the 1973 ruling that legalized abortion nationwide, but killing all or most of its substance.
Junking the system
They’d do that by junking its system of allowing women to rule their own reproduction rights through the first six months of pregnancy—with some limits in the fourth through sixth months—in favor of one where individual states could decide whether a particular requirement for getting an abortion is an “undue burden,” on each woman, and otherwise banning abortion.
A complete ban, of course, is what the anti-abortion advocates, and the state of Mississippi, which passed a restrictive law, want. The judges could likely rule first on the Texas law which they oppose, not because it makes abortion almost impossible in Texas, but because it takes enforcement power away from judges and gives it to vigilantes. Choice advocates would be expected to celebrate a ruling that overturns the Texas law for any reason, they think, only to be hit, days, weeks or months later with a ruling that upholds the Mississippi law and lays the groundwork for an end to abortion rights in as many as 26 states or more. The nightmare scenario envisioned is abortion rights on the two coasts and a vast abortion-free zone in the middle of the country.
The three remaining progressive justices—Elena Kagan, Sonia Sotomayor, and Stephen Breyer—declared that outlawing abortion nationwide, after 49 years, would trash the court’s credibility. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Sotomayor asked.
Plus, for many of those outside, the ban on the right to abortion could herald judicial and legislative bans on other rights and freedoms, including the right to same sex marriage among many other things.
“If they”—right-wing abortion foes—“can control reproductive rights, they can control our rights, too,” Ann Pfrimmer of the Service Employees commented, minutes after she addressed the crowd before they set off on their march to the court.
Earlier and inside, “If people actually believe it’s all political, how will we survive? How will the court survive?” asked Sotomayor. Added Breyer: “Feelings run high. And it is particularly important to show what we do in overturning a case is grounded in principle and not social pressure, not political pressure.”
What brought the lawyers to the court and the crowd outside and around it was the Dec. 1 hearing on the most politically charged and consequential reproductive choice case in 30 years, Dobbs v Jackson Women’s Health Organization.
Theoretically, the case pitted the state government against the sole remaining abortion clinic in Mississippi over a law banning abortions after 15 weeks of pregnancy, except those to save the life of the mother.
What it was really about, Mississippi Solicitor General Scott Stewart said bluntly, was whether reproductive choice nationwide, which the Supreme Court legalized in 1973 in Roe v Wade and which has been the radical right’s top social issue target ever since would survive at all.
Wants rights eliminated
That nationwide mandate for reproductive rights, said Stewart, should be eliminated, leaving rights to the whims of politics in the states. He conveniently did not mention the raft of “red states,” like Mississippi and Texas, that have banned all abortions or are preparing to do so. It should be noted that curbing or killing abortion rights altogether will be the first time in the history of the U.S. that the Supreme Court ever actually took away existing human rights.
Abortion rights “have no basis in the Constitution,” he contended. “They have no home in our history or traditions. They’ve damaged the democratic process. They’ve poisoned the law. They’ve choked off compromise. For 50 years, they’ve kept this court at the center of a political battle it can never resolve.”
“We know the special burdens of caring for our families and our communities while self-interested politicians play games with our bodies,” SEIU’s Pfrimmer later told the crowd outside, making it clear she was speaking for the union.
SEIU was one of five unions, plus the Coalition of Labor Union Women and 500 female athletes, who joined friend-of-the-court briefs backing the clinic and the right to choice. Their briefs focused on the practical impact on women. So did speakers to the crowd and unionists interviewed.
“This is an attack on all elements of equality, including gay marriage, the rights of Black and Brown people, and all minorities,” Becky T., a Brotherhood of Locomotive Engineers/Teamsters member and a 40-year railroad engineer, told People’s World. “And our voting rights are being taken away, too.” She declined to give her last name.
Becky, Pfrimmer, other Service Employees members, and retired Government Employees Council 220 President Witold Skwierczynski were among the unionists in the crowd, organized by the Women’s March. Most of the crowd, and all the speakers, were women, but there were many supportive men.
Skwierczynski said his council bargained with the government for, and got abortion coverage in its health insurance, from successive administrations. But there “would still be a problem” for those covered workers if the justices outlawed legal abortion nationwide.
“That would leave it (abortion) up to the states and people in conservative states would have to travel hundreds of miles and take unpaid leave” to consult abortion providers. That includes AFGE members in red states. “I think that’s vital” to the right to get an abortion “and that’s why I’m here.”
Julie Rikelman, the attorney for the clinic, told the justices beforehand that outlawing legal abortion nationwide would be much more than “a problem.” She also declared abortion is constitutional.
“Mississippi’s ban on abortion two months before viability is flatly unconstitutional under decades of precedent,” Rikelman said, meaning since the justices legalized abortion in Roe v Wade in 1973 and reaffirmed it in 1992 in Planned Parenthood v Casey. “Mississippi asks the court to dismantle this precedent and allow states to force women to remain pregnant and give birth against their will.
State taking control of a woman’s body
“For a state to take control of a woman’s body and demand she go through pregnancy and childbirth with all the physical risks and life-altering consequences that brings is a fundamental deprivation of her liberty. Preserving a woman’s right to make this decision until viability protects her liberty while logically balancing the other interests at stake.”
Rikelman later elaborated on that in a dialogue with Justice Clarence Thomas, an unrelenting foe of abortion rights in his 31 years on the court—and Stewart’s one-time employer.
“I know your interest here is in abortion, I understand that,” Thomas told her. “But, if I were to ask you what constitutional right protects the right to abortion, is it privacy? Is it autonomy? What would it be?
“It’s liberty, your honor. It’s the textual protection in the Fourteenth Amendment that a state can’t deprive a person of liberty without due process of law,” Rikelman declared.
Rikelman also told the justices “eliminating or reducing the right to abortion will propel women backwards,” legally. Friend-of-the-court briefs from outside groups, including briefs co-signed by five unions, the Coalition of Labor Union Women, and 500 female athletes, said outlawing abortion would particularly propel women of color, LGBTQ women, transgendered people, and the disabled backwards.
“Mississippi’s ban would particularly hurt women with a major health or life change during the course of a pregnancy, poor women, who are twice as likely to be delayed in accessing care, and young people or those in contraception, who take longer to recognize a pregnancy,” she said earlier. And another brief, from 125 economists, put the negative impact on women and families in dollar-and-cent terms.
“Two generations have now relied on this right, and one out of every four women makes the decision to end a pregnancy,” Rikelman added. Letting them do so, the economists said, benefits both women and the economy overall.
Speakers to the crowd, many of them women of color from Mississippi, plus another from Atlanta, made those same points. Virtually each one defiantly pledged to continue the fight for reproductive choice, recognizing the court, now with a 6-3 majority of GOP-nominated justices, three of them named by Donald Trump could well toss choice and abortion rights out.
Inside, Sotomayor had quizzed Stewart about when, if ever, Mississippi—and by implication, other red states—consider the rights of the women. Stewart ducked.
The justice noted forcing poor women, including the women who comprise 75% of Mississippi’s poor, to carry pregnancies to term puts them “at a tremendously greater risk of medical complications and ending their life,” Sotomayor warned. Specifically, she said, poor women forced to carry pregnancies to term in Mississippi are 14 times as likely to die as women who elect an abortion “before viability.”
“As far as we’re concerned, it’s there the entire time,” Stewart replied about the woman’s rights. His statement would have drawn derision from the crowd if those gathered around the court had heard it.
The justices will decide the case next year. Their ruling—whether it keeps abortion as a nationwide right or outlaws it—will crash right into the middle of the 2022 election campaign. But nobody inside the court mentioned that.
Several of the right-wing justices seemed ready not just to let the Mississippi law stand but to ban abortion rights altogether.
Exposing his true intentions, Justice Brett M. Kavanaugh asked a lawyer for Mississippi: “You’re arguing that the Constitution is silent and therefore neutral on the question of abortion? In other words, that the Constitution is neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process. Kavanaugh is one of three justices who Trump said he picked because of their opposition to abortion rights.
Right-wing state legislative bodies have been emboldened by the Trump selections and have made no bones about the fact that those new judges are the reason they are ramming anti-abortion laws into place in the states.
Should Roe be overturned, some 26 states could soon after make almost all abortions unlawful, allowing only rich women who can afford to travel in many cases 1,000 miles, to access an abortion.
President Biden yesterday declared his support for Roe, calling on the Supreme Court to leave it in place.
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