Abortion, whether it’s providing care or helping someone access care should not be criminalized under ANY circumstances.
Today, Polish activist Justyna Wydrzyńska, co-founder of Poland’s Aborcyjny Dream Team, goes on trial in Warsaw. She is accused of helping someone access abortion pills and faces up to 3 years in prison.
No one should be punished for helping someone access time-sensitive and essential abortion care.#IAmJustyna
Digital illustration of Polish abortion rights activist, Justyna Wydrzyńska. She has reddish brown hair, and is wearing a black pleather jacket, printed pink pants, and is holding a sign that reads, ‘I am Justyna’
Digital illustration of a brown fem with a purple bob. They are looking back, with the collar of their pink denim jacket lifted up. The jacket has two pins that depict a rainbow flag and trans flag and there’s stars and text that reads, ‘support abortion access.’
Health care is a human right (and that includes abortion.)
Digital illustration of a Black fem sitting in the center of a scribbled black background. They have bantu knots, purple makeup, a striped blue sweater, a plaid hot pink skirt, bright yellow socks and purple combat boots with blue shoelaces. There’s a speech bubble that says , ‘health care is a human right’ With a note that says ‘that includes abortion’
I just want to let everyone know that this blog is not finished, dead, or abandoned by any means. I apologize for disappearing without a trace, but I just recently got a new job after a couple years of unemployment and it has been terrifying and exhausting. Between that and my health problems I just haven’t wanted to deal with the daily struggles of reading and posting bad news and fighting with antis. I’m not really sure what my timeline is for coming back but when I do I think my focus will shift more towards original content, education, and resources and less about daily political events. It’s just too much of a strain to do everyday.
[TW for discussion of forced sterilization and racism]
So someone on Feministing (I think) finally made the connection that trans* rights and reproductive rights/abortion are both fundamentally about bodily integrity and autonomy and therefore have many intersections, and proponents of both should be working together (something I’ve been saying since day one, along with many other trans* people before me).
Well radical feminists aren’t having it. Apparently the fact eludes them that forced sterilization and forced birth are two sides of the same antichoice coin. Which brings me to my main point. This so-called “conflict of interest” has happened before (maybe more than once?). During the second wave the interests and reproductive rights of wealthy, white feminists and WoC were going in opposite directions. White women were demanding access to abortion and to voluntary sterilization without restrictions from paternalistic doctors and simultaneously WoC were struggling to: be allowed to have children, not be demonized for having children, not be forcibly sterilized (often without their knowledge or consent), and not be tested on for development of contraception or other medications. Guess who was prioritized. Exactly. There’s a history here and a lot of tension and mistrust (rightfully) still remains because rich, white women made “reproductive rights” synonymous with what they needed access to and completely avoided the fact that the right to have children is as much of a reproductive rights issue as the right to abort/not have children.
My point is we know these radical feminists hate intersectionality because they think sex-based oppression is the only thing that matters (this is racist all on its own) and we know they hate trans* people. The fact that they don’t see how important forced sterilization is now anymore than they did back then has some serious implications considering the intersection of race and trans* status. Forced sterilization affects us all but TWoC are disproportionately the victims of violence and often have an even more precarious and tenuous relationship to the medical establishment, opening them up to all kinds of violations, particularly in regards to reproductive rights. That once again forced sterilization isn’t a priority for radical feminists and reproductive rights activists is further proof of their racism and the fact that White Feminism™ is alive and well, in case you doubted it for a split second.
The Georgia legislature passed a new abortion bill (HB 954). Yet another law (it’s only a matter of time before it’s signed) governing the practice of medicine based on nothing resembling science.
The issues:
Fetal pain. The law will make Georgia the seventh state to enact a gestational age limit based on the false belief that a “20 week” fetus can feel pain. The lack of cortical connections as well as the absence of connections between the thalamus and the subplate before 23 weeks means that a 20 week fetus does not have the neural ability to feel pain.
Any abortions after 20 weeks must be done so the fetus has “the best opportunity…to survive” There are 2 ways to perform a 20+ week abortion: a dilation and evacuation (D&E), which is a surgical procedure where the cervix is dilated and the fetus is removed in parts, and an induction of labor, whichcan take several days in the hospital. What this law means is if a woman has an abortion for genetic reasons she must have her labor induced. The life of the mother clause does allow doctors to offer a D and E in specific situations. A fetus can’t survive before viability, so this “best opportunity” seems moot and just another way to make the experience more challenging and expensive, although if you read further it is clearly a set up for…
“Any baby born alive that is capable of sustained life must get medical aid.” Meaning if you have an induction at 22 weeks for a severe congenital anomaly, a pro-life doctor or nurse can swoop in and resuscitate your baby against your wishes. Of course, nowhere does it say the government will pay for this medical care. This medical aid against the parents’ wishes could also be applied to situations where parents have made the difficult decision not to resuscitate their premature baby.
And finally the mistake? Well, I’m not going to disclose it until after it’s signed into law. I had to read the bill multiple times to make sure I was reading, well, what I was reading. This error makes it crystal clear that no one with any basic medical knowledge read the bill.
But hey, it’s only women’s health care we’re talking about.
The Georgia abortion bill HB 954 has been widely promoted in the press as another “20 week” bill, but it isn’t (and this is the mistake in the bill’s wording that I was referring to in yesterday’s post). I think it wants to be a 20 week bill given it’s aimed at “fetal pain”, but if you read the exact wording it appears as if the lawmakers passed a bill that legalizes abortion (outside of life/health of mother issues) up to 22 weeks gestational age.
The Georgia lawmakers go to great lengths to describe how at 20 weeks post fertilization they think a fetus can feel pain (it can’t, BTW). In fact, the definition of a 20 week fetus in Georgia HB 954 is 20 weeks post fertilization, which is inaccurate medical terminology (and why I wrote yesterday that it was clear no doctor read the bill). At 20 weeks after fertilization a fetus is actually 22 weeks gestational age in medical terms.
This is the exact wording from the bill:
“At least by 20 weeks after fertilization” (in reference to fetal pain). This phrase appears 4 times in the 1st section.
“Probable gestational age is an estimate made to assume the closest time to which the fertilization of a human ovum occurred…” also in the 1st section.
And then specifically in Code Section 31-9B-1 gestational age is defined as follows: “the postfertilization age of the unborn child at the time the abortion is planned to be performed or induced, as dated from the time of fertilization of the human ovum.”
Let’s be very clear. Pregnancy is dated from the 1st day of the last menstrual period (LMP) not from fertilization. Even when an ultrasound is performed, the additional 2 weeks pre-conception (if you will) are built into the dating. It’s even on a pregnancy calendar I downloaded and on every single prenatal wheel that OBs use to date pregnancies.
Think of gestational age dated from the LMP/by ultrasound as metric and correct, and think of the post fertilization age in the Georgia bill as an out of date Imperial system that has no scientific meaning (you sure won’t find it in any medical textbook).
Other states, such as Arizona, actually use the correct medical terminology of LMP/ultrasound in their laws. So, in Arizona when HB 2036 reads “Gestational age means the age of the unborn child as calculated first day of the last menstrual period of the pregnant woman,” it means what doctors everywhere call 20 weeks. As much as I disagree with the bill, at least they have their terminology correct.
According to the Guttmacher Institute, which I assume uses the correct medical terminology (i.e. 20 weeks = 20 weeks by LMP/ultrasound), as of April 1, 2012 there are 7 states with a 20 week gestational age limit: Alabama, Idaho, Indiana, Kansas, Nebraska, North Carolina, and Oklahoma. Arizona will be the 8th. Despite reports to the contrary, it is clear that Arizona is not imposing the most restrictive gestational age and given the wording in Georgia the Peach State will not be joining Arizona among the 20-week fetal elite.
Imposing gestational age limits is wrong. There are unfortunate circumstances where lethal or very severe anomalies are not detected until the 3rd trimester. I don’t think it’s anyone’s place to tell a woman who is pregnant with a baby who has no brain and a single eye like a cyclops that she has to go to term. I heard one woman in such a devastating situation say, “It was as if a little bit of me died inside every time some stranger asked when I was due to deliver.” Women don’t ever have late-term abortions out of convenience or on some kind of whim, they have them because of horrible, terrible, genetic calamities. Fortunately, with modern prenatal testing these later diagnosis are becoming rare, but they still happen.
I personally think the lawmakers in Georgia were aiming for a “real” 20 week bill, but were so deer-in-the-headlights about fetal pain!and 20 weeks! and life at fertilization! that they forgot to do any basic research. And that’s exactly who you want writing bills, not scholarly lawmakers who have thoughtfully researched a subject and consulted the experts, but douchebags competing to pass the most misogynistic, evidence-baseless legislation in a bizarre game of one-upmanship. It’s even more concerning because lawmakers are encroaching in the practice of medicine with this misinformation.
With states like Georgia using inaccurate terminology discussions can get confusing. But it is essential to make sure we are using the accurate medical terminology so we can all compare apples with apples, because for me pro-choice is pro facts.
Via @easttnharmredux Full article by Michelle Goldberg at the Nation. For pregnant protesters: Tear gas is an abortificient, it can cause spontaneous abortions (miscarriages). Using it in warfare is banned for several reasons, including this. What would you call its use on oppressed populations who are historically the victims of eugenicist policies, non consensual medical experiments, and forced sterilisation?
“Miscarriage” and “abortion” were used interchangeably until the mid 1980s, when they each took on the almost exclusive connotations they have today. Abortion was the clinical term for the early termination of a pregnancy regardless of whether it was facilitated or not, but it has come to carry all the moral weight and judgment conservatives have been working for decades to force people with unwanted pregnancies to feel.
The shift in language was in part initiated by the feminist movement, enabled by ultrasound technology which allowed doctors to distinguish between spontaneous and induced abortions for the first time. “Miscarriage” was lobbied for, in consideration of the parent’s feelings—the aborting person’s feelings seems to have elicited no similar consideration
I have a meeting at 11 and I woke up at midnight and couldn’t get back to sleep
From July through December, I’ll be working at a demanding music therapy internship, with no time to blog about reproductive justice. I fully intend to return in January, but until then, this how you can use what’s already here:
The Navigation page will take you to virtually any pro-choice, reproductive health, or reproductive justice topic, and the Resources page has lots of information on all your options.
The Science! page and #science tags are great for debunking anti-abortion myths and learning more about reproductive health research
If you have questions about or need support in seeking an abortion, everything I know (funds, hotlines, procedures, clinics, and more) is in the links at the top of the page. Considering Abortion? may be the most useful.
My side blog, Expose CPCs, will also be quiet during this time. But that doesn’t mean you can’t continue to spread the word about deceptive anti-abortion centers!
While I have terrible willpower, I don’t intend to check my Tumblr while I’m working. If you have a question that needs an immediate answer, someone in People I Follow may be able to help you.
Please read and consider reblogging the following posts! Stay informed and look out for each other.
For those who are able to donate or need information for themselves or others, the above link may be very helpful.
I donated this morning.
If you are in a major metropolitan area, check for marches and actions happening today. Otherwise, my understanding is that there were already actions and marches planned on May 14th and they’re still a go.
(ID: eight images with pastel rainbow backgrounds, there are black curved lines bordering each corner and black text in the center of every image; the text reads 1) “transgender and pro-choice”, 2) “include trans people in your abortion rights advocacy”, 3) “pro-choice and childfree without apology”, 4) “bodily autonomy is a human right”, 5) “this isn’t gods will you’re just an asshole”, 6) “not subject to the rules of your religion”, 7) “my body my life my future my choice”, 8) “forced pregnancy is torture”.)
A lot of people are REALLY WORRIED about the leaked Alito draft, and for good reason. If Roe vs. Wade is overturned, many states will enact trigger laws that revoke the right to safe abortion access. But that doesn’t mean that safe abortions won’t be possible. They’ll just be harder to access.
Fortunately, we aren’t powerless. There are things we can do to help preserve the right to abortion and, if Roe falls, help people get the abortions they need.
Here are some actionable things you can do to help!
Donate to your local abortion fund.
This is a financial commitment, obviously, but these funds are vital to helping people access abortions. There are different types of funds. Practical funds help with transportation, housing, and other practical needs. Clinical funds help with paying for the procedure. Both types of funds are necessary and helpful!
If you’re in a state with protected abortion access, see if there’s a practical fund in your state that you can donate to. These funds make it possible for people for other states to afford travel and lodging in your state. You might also want to consider donating to funds in states or regions that have trigger laws, like the Yellowhammer Abortion Fund, which helps people in Mississippi, Alabama, and the Deep South.
There’s also https://abortionfunds.org/, but as of right now (2 May 2022, right after the SCOTUS leak happened), their website is down. Too much traffic!
Volunteer with a hotline.
As of writing this, a lot of abortion fund websites are completely overwhelmed. Lots of people are rightfully upset and looking for some way to help. Many of these funds have hotlines that you can help out directly from your own phone! Google “abortion fund + your state (or your region) + hotline” and see what comes up. These hotlines are going to be SWAMPED soon and many orgs are going to be onboarding volunteers very quickly to help deal with the onslaught.
Donate to grassroots causes.
I love Planned Parenthood as much as the next gal, but donating to them isn’t actually going to help as much right now as donating to an abortion fund. Smaller, grassroots networks are going to be more effective at allocating resources to the people who need it most. Independent clinics are also going to need substantial help. Independent clinics provide the majority of abortion care in the US, and many are the only clinics operating in hostile states. Check out https://keepourclinics.org/ if you’re interested in donating.
Make a list of resources.
There are a lot of people out there who aren’t going to have the time or energy or emotional bandwidth to deal with this dumpster fire. If you have the capacity to do so, then maintain a file somewhere with the following information:
- any abortion funds that serve your area with their contact info- email and phone and links
- any abortion hotlines in your area
- national care hotlines, ESPECIALLY RAINN because this is going to be really, really hard on survivors
-a list of crisis pregnancy centers in your area, clearly marked with their names, contact info, and primary links. Make sure that these are highlighted in a way that separates them from the actual abortion providers because these centers are highly predatory and manipulate people who are distressed and confused. If somebody has access to that list and know who’s operating in an area, it might help them avoid these places!
Have this file ready to go so that you can share it with people who are overwhelmed!
Help the safe havens.
Losing Roe feels inevitable at this point. It might not be, but the world is terrifying. However, some states are safe havens and will maintain abortion access, regardless of what SCOTUS eventually decides. Practical access funds in these states will need help because they will help people traveling from unsafe states to safe states. Refer to this map: https://reproductiverights.org/maps/what-if-roe-fell/
Look for funds in states that are blue or yellow. This means they have expanded access or protection if Roe falls. But be sure to hover over and look at the summary of the protection– for example, Florida has abortion protection, but they just passed a 15-week ban. That’s basically protection in name only!
If you’re not sure which practical fund you’d like to support, I highly suggest the Midwest Access Coalition. MAC is based in Chicago and helps people from all over the Midwest come to the city for reproductive healthcare. A lot of the Midwest is really hostile to abortion, so MAC can help a lot of people. But there are many, many others!
In the coming days and weeks, there will be more to do. There will be marches, protests, and other organized action. But right now, tonight, these are things you can look into doing.
Abortion bans are oppressive and dehumanizing and dangerous to anyone who can become pregnant. And the people who are the most highly impacted by these laws are certain minorities. This post is focused on how reproductive rights violations impact Indigenous First Nations communities in particular, please do not derail this post or make post additions unless you are Indigenous American.
(note: many of my sources use gendered language that excludes non-women who can become pregnant. i am aware of this and am unhappy about it, but i will still be using reliable data and quotes from these sources.)
Based off of United States statistics, Native American people are the most likely to be sexually assaulted out of any racial demographic in the US by a large margin.
- On average, American Indians ages 12 and older experience 5,900 sexual assaults per year. - American Indians are twice as likely to experience a rape/sexual assault compared to all races. - 41% of sexual assaults against American Indians are committed by a stranger; 34% by an acquaintance; and 25% by an intimate or family member.
A nationally representative survey indicates that while almost 18% of white women and 7% of Asian/Pacific Islander women will be raped in their lifetimes, almost 19% of black women, 24% of mixed race women, and 34% of American Indian and Alaska Native women will be raped during their lifetimes.
Sexual assault and rape are indescribably traumatic experiences in and of themselves, even without the layer of potential for unwanted pregnancy. But pregnancy after being raped does occur. Almost 3 million people in the U.S. have experienced rape-related pregnancy. (source [x])
94% of rape victims experience post-traumatic stress disorder (PTSD) following their assault. (source [x]) People who suffer from PTSD are caused extreme psychological distress by things and experiences and people that remind them of the traumatic event(s) that they suffered through. Finding out that you are carrying your rapist’s fetus can and does majorly inhibit and set back the ability to heal and recover from PTSD.
And even without this factor, many people who experience rape-related pregnancy are children, disabled in ways that would make it dangerous or even fatal to carry out a pregnancy/childbirth, unable to access the resources required during pregnancy/childbirth, or otherwise unfit or unwilling to go through a full pregnancy and childbirth.
Native Americans have the highest teen pregnancy rates in the U.S.
According to a 2018/2019 study, Indigenous populations in the U.S. have the highest percentage of teen births out of any racial demographic.
Teen pregnancy and birth is often incredibly damaging to the victim’s psyche. Teen birthing parents are twice as likely to experience post-partum depression than birthing parents of an appropriate age, have higher rates of other depressive disorders, have higher rates of suicidal ideation, and have higher rates of PTSD. (source [x])
Not only are there often grievous mental health consequences to teen pregnancy, more than 50% of teen birthing parents will receive a high school diploma, and only 2% will receive a degree before the age of 30. (source [x])
Teen birth rates will only go up if abortion is outlawed. This will disproportionately impact Indigenous communities, who already suffer from low graduation rates and high mental illness rates.
Native Americans have higher pregnancy and abortion rates in general.
-Urban AI/AN [American Indian/Alaska Native] were more likely to have had three or more pregnancies and births than NH-whites [Non-Hispanic Whites]. High fertility rates were also seen among young urban AI/AN women age 15-24 years. - Urban AI/AN reports of 2 or more abortions was twice that of NH-whites (10% vs. 5%).
This one is fairly self-explanatory. If a certain demographic is receiving more reproductive care, they will be more impacted by legislation making it difficult/impossible to access that reproductive care.
Native Americans have the highest poverty rate out of any racial demographic in the U.S.
Carrying out a pregnancy, going through childbirth, and raising a child are all things that are made much more difficult by economic disprivilege, especially in the US, where healthcare is very expensive, especially without insurance.
The estimated cost of a pregnancy and birth in the United States is $30,000 for a vaginal birth and $50,000 for a c-section. (source [x]) Many impoverished people just simply do not have that kind of money, and are forced to take on pregnancy and childbirth without appropriate healthcare, or go into medical debt.
Additionally, pregnant people require more food, which they might not be able to afford. Pregnant people often experience side effects that would make it impossible or simply unsafe to work, especially in late stage pregnancy, and people living in poverty cannot afford to lose their jobs or even to miss shifts.
Native Americans have the highest rates of death due to pregnancy/childbirth complications, second only to Black people.
Black and AIAN women have pregnancy-related mortality rates that are over three and two times higher, respectively, compared to the rate for White women (40.8 and 29.7 vs. 12.7 per 100,000 live births)
With a pregnancy mortality rate more than double that of white people, if more Indigenous people are forced to endure a pregnancy, more Indigenous people will die at disproportionate rates.
Racial disparity in pregnancy mortality rates is due in part to inability to access healthcare, as well as systematic racism within healthcare resources themselves.
Native Americans have the highest incarceration rates in the U.S. out of any racial demographic in many states, and the second highest incarceration rates overall.
Native Americans are incarcerated at a rate 38% higher than the national average, according to the Bureau of Justice Statistics.
My final point that I’m going to be discussing is about how American Indigenous people will be treated under abortion bans.
Native Americans face much higher incarceration rates out of almost any ethnic demographic, and very often face more severe punishments than non-native (particularly white) people who were charged with the same crime. If abortion is criminalized and can be punished with incarceration, Native Americans will be disproportionately impacted.
Additionally, people who miscarry can be legally punished under anti-abortion laws, because there is simply no way to prove that miscarriages weren’t intentionally induced in many cases. We are living under a justice system that is biased against Indigenous people, and with the way things are right now, the only logical conclusion that one can draw based on evidence is that Native people who are falsely accused of abortion will be more likely to face criminal charges. Because it’s already happening.
Prosecutors argued methamphetamine use caused Poolaw’s miscarriage between 15 and 17 weeks gestation. But a state medical examiner who testified for the prosecution during the one-day trial in October said there was a complication with the placenta and the fetus had a congenital abnormality. He couldn’t say for certain whether drug use caused the pregnancy loss.
Brittney Poolaw, a 19 year old woman from the Comanche Nation, was sentenced to four years in prison after a miscarriage. The prosecution insisted that she was guilty of self-induced abortion by using meth, as she was an addict, even though medical evidence proved that there were other factors that could very well have caused miscarriage.
Abortion bans are aggressions against anyone who can become pregnant, but AI/AN communities will be impacted disproportionately. Our voices are incredibly important in matters like these, but are often talked over. Allow us to have a platform. Consider how your activism may exclude us. Thank you.
I’ll be back to my usual BS about anime men and 90s music soon, but right now, I’ve got Constitutional law on my mind. Instead of ranting about unelected judges or old white men, fight back by learning their tricks! Understand how and why this leaked opinion’s bombshell isn’t about abortion. It’s about restricting rights that aren’t explicit in the Constitution. The leaked draft in the Dobbscase would absolutely endanger, to varying degrees, the right to:
Marry (same sex and/or interracial marriage)
Have children (adoption and sterilization)
Have certain kinds of consensual sex (sodomy)
Custody of children
Keep a family together
Purchase and/or use contraceptives (even if married)
Control the upbringing of your child (sending kids to parochial schools and/or homeschooling)
Refuse medical treatment
Maybe even some parts of the Bill of Rights like free speech if we go down the darkest timeline’s hardcore fundamentalist path.
Why? Because these rights all share an underlying analytical framework with the right to have an abortion pre-viability without an undue burden. These are all “fundamental rights” (that’s the legal term, not philosophical opinion) under the:
Fourteenth Amendment - aka the post-Civil War one that applies to state governments and has an explicit Equal Protection Clause AND Due Process Clause. Which fundamental rights are protected by which clause? The difference is mostly semantic, although choosing one clause over the other can put a spin on the case making a certain outcome more likely. The Supreme Court has also found previously that the 14th Amendment “incorporates” most of the Bill of Rights and applies those limits to state governments. The first 10 amendments otherwise apply only to the federal government. Without this Court-made interpretation of the 14th Amendment, your state government could absolutely stop your free speech, for example. It’s meant to limit racist states, basically.
Due Process Clause of the Fifth Amendment - Yep, double due process, because this one only applies to the federal government! But, fun fact, the Supreme Court has decided this due process clause should be read to “include” equal protection so the federal government is limited by equal protection too. Another Court-made protection that matters.
Ninth Amendment (it says the naming of certain rights in the Constitution should not be read as disparaging/prohibiting other rights retained by the people). There aren’t any Ninth Amendment rights, technically, but it’s validation that the Constitution CAN protect rights that aren’t explicitly written into the document.
So, how do we decide what is, legally, a fundamental right protected from federal AND state government interference? And which Amendment and clause do we use to give life to that right?
It turns out there’s no strict test. Really! Each fundamental right is established slowly over time, based on a variety of factors. It was kept flexible by design, so rights can be added and expanded. That’s what drives conservatives mad, because they want hard & fast rules. And that’s what this Dobbs draft opinion attacks. The “holding” in the draft — meaning the most important, binding legal part — says “The Constitution makes no reference to abortion, and no such right is implicitly protected by ANY constitutional provision, including…the Due Process Clause of the Fourteenth Amendment.” The draft opinion then follows a three-part structure explaining:
“the standard our cases have used in determining whether the Fourteenth Amendment’s reference to ‘liberty’ protects a particular right.” This is a specific reference to the Due Process Clause of the 14th Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law”
“Whether [abortion] is rooted in our Nation’s history and tradition and whether it is an essential component of what we have described as ‘ordered liberty.’” This distinction between “liberty” and “ordered liberty” is invented by the Supreme Court, as the 14th Amendment just says “liberty.” But it’s been used for a long time and isn’t controversial.
“Whether a right to obtain an abortion is supported by other precedents.”
Do you see the judicial sleight of hand?
There wasn’t a unified test for finding a “fundamental right” implicit in the Constitution. But this opinion immediately dismisses the equal protection clause (calling it inapplicable to abortion), and the 5th and 9th Amendments (saying Roe didn’t consider them so the Court must ignore them now), leaving only the Due Process Clause of the 14th Amendment as the basis for finding a fundamental right. Having isolated this clause, the opinion then goes straight for the heart of it, saying fundamental rights can be found only if the right is objectively, deeply rooted in history, because that subset of “ordered liberty” is the ONLY kind of “liberty” the Due Process Clause is capable of protecting. This slashes the scope of the clause and establishes a high bar that hasn’t been required in other cases.
The draft isn’t subtle about it either.
“In interpreting what is meant by the Fourteenth Amendment’s reference to liberty, we must guard against the natural human tendency to confuse what that amendment protects with our own ardent view about the liberty that Americans should enjoy.” Then the draft says it seeks to “set the record straight” on Roe’s “faulty historical analysis,” even though that wasn’t the test used by the Roe court and the subsequent cases supporting Roe. (And, FWIW, the 66-page Roe opinion contains literally dozens of pages of historical analysis, including notes on how abortion and infanticide was practiced by ancient Greeks and Romans. Dobbs dismisses it all as “irrelevant”.)
Instead of any strict test, Roe recognized that the pre-existing Constitutional right of privacy was “implicit in the concept of ordered liberty.” (There’s our “ordered liberty” again! See, RoeandDobbs look at the same precedent and come out with completely different conclusions, which is not supposed to happen! But I digress.) Pre-Roe, the existing privacy right guaranteed a “zone of privacy” encompassing marriage (though only hetero at the time), procreation, contraception, child rearing & education, and more. Roe reasoned if all other rights in that zone could not be infringed by the federal or state government in any way, then the Constitution should extend a right protecting abortions from almost all government interference “pre-viability,” meaning before a fetus could survive outside a pregnant person.
Why viability? Because the government interest in the fetus needs to be BALANCED with the “separate and distinct” interest in “preserving and protecting the health of the pregnant [person].” Both fetus and pregnant person must be considered.
Simply put, “the pregnant [person] cannot be isolated in her pregnancy. She carries an embryo, and later a fetus…” Abortion is different from other fundamental rights in that we inherently have a clash of competing rights, and that’s why abortion is not, and never has been, a complete, unfettered right throughout the whole pregnancy. It’s also why there must be exceptions for the life or health of the pregnant person. In achieving this balance, Roe said it
“need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”
On the flip side, Roe said federal and state governments could regulate abortion once they had “-“a rational basis” for the regulation AND a “compelling government interest” in the health, safety, and welfare of the fetus; aka after the fetus is viable apart from the pregnant person. The “rational basis” part just indicates the level of justification needed to uphold a law from a constitutional challenge. “Rational basis” is the bottom level of justification, and it means the government law/regulation almost always wins — in which case, the only check on government overreach is elections. (If you don’t like a law that is constitutional, vote the bastards who wrote it out of office.)
TheDobbs draft finds that, of course, abortion is NOT a right “deeply rooted in the Nation’s history and traditions” because “tradition” criminalized abortion. The fact that abortion was criminalized at all stages of pregnancy in the majority of states in 1868, when the 14th Amendment was ratified, means we don’t have a protected Constitutional right to abortion today. Because history. The Court ignores the minority of states that didn’t criminalize early abortions or didn’t actively prosecute abortion. The Court ignores that these anti-abortion laws were written at a time when women couldn’t vote or serve in public office. It doesn’t matter that medical science has advanced. Because history. It doesn’t matter if atheists or some religions, like Reform Judaism, don’t believe life begins at conception. It doesn’t matter that attitudes and laws about abortion changed in the 20th century. Because history.
In short, Dobbs stands for the proposition that “fundamental rights” have gone too far. “These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.” ……Well, why can’t there be a fundamental right for an adult to engage in whatever type of work they want, including sex work? The government could still impose regulations on sex workers as long as such regulations are necessary to achieve a compelling government interest, and are narrowly tailored to that interest. A very high level of justification, yes, but not impossible. Oh, but our Nation’s Puritan history….. /s
As if that’s not enough, there’s one more “gotcha” lurking in the draft. Remember where I said “rational basis” means the government almost always wins? Well, the Dobbs opinion would move the standard from “government almost always loses” to “government almost always wins.” Going forward,
“rational basis review is the appropriate standard for … challenges [to abortion laws]. As we have explained, procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history. … It follows that… [a] law regulating abortion, like other health and welfare laws [that do not touch fundamental rights], is entitled to a ‘strong presumption of validity.’”
This section does do a good job of specifying “abortion laws” rather than “Fourteenth Amendment” generally. BUT note the logic flow: abortion is not a protected fundamental right—> because history!!—> government can regulate abortion pretty much unchecked except for elections.
This is unequivocally a framework that could be used to roll back rights.
It’s true the new rule might not actually be used this way. Dobbs says, “[W]e emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” These kinds of limiting statements appear with some frequency in Supreme Court decisions, and they can stop a case from being used as precedent. But they’re not always binding, especially where the limiting language isn’t baked expressly into the legal “holding” of the case. In Dobbs, the “holding” is that no fundamental right to abortion exists under any part of the Constitution, including the Due Process Clause of the Fourteenth Amendment, because history. That holding is too broad for my comfort level.
The Wall Street Journal’s editorial board argued that there is no risk to other fundamental rights because rights like gay marriage and contraception are so integral to our lives and so non-controversial as to withstand any challenge. …. Hmmm, I’mma let YOU decide if you believe that’s true. This Atlantic article argues that abortion is different from other fundamental rights because abortion causes harm to a “non-consenting” fetus…but Roe expressly recognized this fact as part of its viability analysis and attempt to balance rights of fetus AND pregnant person, yet Dobbs proposes to eviscerate Roe anyway. I suppose it’s not a shock that conservatives aren’t interested in any balance for the pregnant person; they’re the same people who disregard the rights of shooting victims in the face of the right to bear arms. Then again:
“To look at the act which is assertedly the subject of a liberty interest in isolation from its effect upon other people is like inquiring whether there is a liberty interest in firing a gun where the case at hand happens to involve its discharge into another person’s body.” — conservative Justice Scalia’s Casey abortion dissent quoting Justice White (who was nominated by JFK but frequently ruled with the Court’s conservative bloc)
Yeah, my head hurts too, so let’s wrap up with one last paragraph before the conclusion: Fundamental rights don’t require two consenting parties; for example, using contraception, refusing medical treatment, or choosing to homeschool your child. The same Atlantic article also mentions “reliance,” meaning the Supreme Court is more hesitant to overrule precedent if it would upend advance planning of great precision. For marriage, that’s true — a sudden invalidation of millions of marriages would be catastrophic. But just as Dobbs says that’s not true for abortion (“getting an abortion is generally unplanned activity”), it’s not true of other fundamental rights either (eg, for consensual sex/sodomy laws, I can imagine someone saying, “well just stop having that kind of sex”). The point stands that the proposed Dobbsframeworkcould make other fundamental rights vulnerable.
The “could” IS the problem. Because someone in some red state will almost certainly use this new framework to probe the limits of rights we thought we had. Perhaps the rights will stand; perhaps not. That uncertainty IS the damage. Re-litigating and re-assessing what has already been decided. Constantly worrying if rights we took for granted for decades will be taken away. Even if we do ultimately keep our fundamental rights, this Supreme Court is inviting them to be challenged, and is going to make us fight HARD for every last scrap.
the supreme court decision to overturn Roe v. Wade is not official yet. someone leaked a draft of the opinion that the members of the court have been circulating and revising (the draft was created by justice samuel alito).
which is insane by the way. it’s the first time that a draft of a supreme court decision has ever been leaked in the entire history of this country.
it makes perfect sense to feel grief or panic or dread or sadness or anger or whatever you’re feeling right now. this is fucking terrible and scary. just for the sake of avoiding misinformation, i wanted to clarify this because i think a lot of the headlines have been misleading, and the info gets even more misconstrued when it’s rephrased on social media and stuff
It is a draft, yes. But to downplay it as that is still dangerous. As OP mentions, this leak is unprecedented, meaning someone inside the Court is sufficiently alarmed, and that’s NEVER happened before. The terrible and scary part isn’t just that Roe may be overturned — that’s been done since 2016 — but in HOW the Court is considering doing it. If the leak is real, then the rationale the Court is using would also wipe away 100+ years of civil rights protections across a variety of subject areas, not just abortion. It would dramatically reduce the power of the federal government and put significantly more power in the hands of states. The leaked draft shows the Court using the same logic as was used to uphold slavery (and later overturned, but they’re possibly reviving it). That the highest court in the United States is even considering such a sweeping ruling is an affront to our freedom and cause for alarm, because it would bring much of our existing Constitutional law framework into question. It means this Court is unbound by anything that’s come before. THAT is why someone got scared and leaked the draft. So no, it’s not a final or official decision, but it’s incredibly important because you need to know the kinds of things this Court is thinking. Don’t fall for their press statements or the non-binding parts of the final opinion where they promise this is only about abortion. It’s not.
“Having a process that is speedy, private and reasonable-to-navigate is vital for young people who find themselves pregnant and are already fearful and vulnerable. This is especially true because, as a whole, teenagers are more likely to find out about their pregnancies later on than adults do, and if they are to avoid later abortions – which are riskier and more expensive, and which state legislatures often make more difficult to access – they need to be able to obtain services quickly.
It is unreasonable and illogical to expect that teens raise children or give birth and put them up for adoption but not be given the option to consider abortion. The desire for parents to be involved in important decisions in their children’s lives is understandable, but parental protectiveness cannot trump a person’s right to their own body and their own future.”
Sacred Seeds Doulas are a Black Doula Collective in Colorado, who provide physical, mental, emotional, spiritual, and informational support to community members.
They are equipped to provide clients with culturally relevant, holistic care, and advocacy. The expertise of their doulas includes fertility, prenatal, labor/birth, postpartum, nutrition, energy work, lactation counseling, massage therapy, maternal mental health, bereavement, abortion, and end of life care.
They are a program within the Soul 2 Soul Sisters organization, a Womanist, Reproductive Justice organization.
“As the medical industrial complex and all authoritarian, undemocratic, institutions continue to be delegitimized, we must reclaim our power and continue to be in solidarity with Black pregnant people, Black Doulas, Black midwives, Black healers, Black rootworkers, Black herbalists, Black farmers, Black/African traditional doctors, and Black community members on the frontlines of Reproductive Justice #AbolitionNow”—Detroit Radical Childcare Collective
If you are concerned about the 1931 law that will ban abortion outright once Roe v Wade falls, here are some steps you should take:
1)Call your state senator and ask them to support passing SB 70, which would repeal the 1931 bill banning abortion. Type in your address to this page to get their contact information: https://www.senate.michigan.gov/fysbyaddress.html
2) Attend one of the MANY abortion rallies scheduled this weekend and sign the Reproductive Freedom for All petition. The petitions MUST be signed in person, and you must be a registered voter for your signature to count. There will be volunteers in Ann Arbor, Plymouth, Big Rapids, Grand Rapids, Detroit, Ypsilanti, and more this Saturday, May 14th. There will be a petition worker in Lansing on Sunday as well. The petition is to put abortion rights on the ballot come November, and we need as many signatures as possible.
And lastly, please reblog this post so it reaches as many Michiganders as possible!
This is going to be a very big deal for folks in Michigan. Please share.
