We now live in a country where the government cannot force you to wear a mask on a plane during a pandemic but can force you to carry a pregnancy to term against your will. It is a country where the government won’t ban certain kinds of assault rifles but will ban certain kinds of medical care. We live in this country because five justices in thrall to a fundamentalist Christian orthodoxy have taken control of the Supreme Court—and because the majority of Americans who reject that orthodoxy have too often ceded the moral ground to the monsters who claim to have legitimate, enforceable interests over women’s bodies.
Women’s rights organizations and advocates have been in the trenches, fighting this fundamentalist sect, at literal physical risk to their lives, for decades. They’ve been fighting in the streets and fighting in the courtroom, but their alleged allies in Congress, in the media, and in the boardroom have rarely had their back. Fundamentalist Republicans have spent the better part of 50 years acting like they are on a holy crusade to stop baby murderers. Democrats, many of the elected ones at least, have hung on to Bill Clinton’s formulation that abortion should be “safe, legal, and rare” like a dude trying to combat global warming with a parasol. Is it any wonder which side is winning?
It’s understandable why advocates and allies have long embraced less strident language when it comes to abortion rights. The moral case for “choice,” for instance, is nice and easy to make, and has the benefit of being the only sane way to run a free society: If you think abortion is murder, then please do not get an abortion! But while “pro-choice” was a fine argument when we were trying to persuade people, it’s insufficient as a fighting posture. I am done ceding the moral space to Christian fundamentalists. Forced birth—literally commandeering a person’s womb and forcing them to incubate cells against their will—is evil and barbaric and cannot be compelled by a legitimate government.
To claw back the basic human rights the Supreme Court is set to strip, the fundamentalist program will have to be opposed—and opposed vehemently—through policy, the courts, and moral suasion. Centrist Democrats don’t want you to know this, but opposing this program politically is, far and away, the easiest of the three.
As a start, President Joe Biden could make abortion services available at federal installations. Doctors could then lease the space from the US government out of their own pocket; this would protect them from draconian state laws as well as the Hyde Amendment, which prohibits federal funding of abortion services (and even if it doesn’t get around the Hyde Amendment, who cares, because Democrats could just repeal the amendment if they wanted to). Biden should already be taking these steps in Texas, where abortions have been functionally unobtainable since September.
The Senate, if it would ever deign to help, could pass legislation that protects abortion rights. It could enact safe-passage legislation, which would mandate that states that deny reproductive services have to allow pregnant people to travel to other states where those services are available, and then earmark federal funding to pay for that transportation, lodging, and time off work.
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The most direct approach would be for Democrats to restore through legislation what the Supreme Court has destroyed through judicial fiat. Pass a law that enshrines the key holdings in Roe v. Wade—and end the filibuster to get it through the Senate if that’s what it takes. But, of course, Democrats, two in particular, won’t, which brings us back to fighting the right’s theocratic agenda through the courts.
The simplest thing would be to expand the courts with judges and justices who believe that the 14th Amendment is a rule, not a suggestion, and will uphold the notions of equal protection and due process. In some ways, Samuel Alito’s draft opinion is a gift, legally, because he was so bad at doing his job. Alito did not really engage in the complicated and often mind-numbing analysis justices normally do when overturning settled precedent. He just came out and said that Roe was “egregiously wrong” and that women did not have fundamental rights because the slavers and misogynists who wrote the Constitution didn’t think they should.
To combat Alito’s opinion, you don’t need fancy legal footwork. You just need: “This Court was egregiously wrong when it held that Roe was egregiously wrong. While women’s rights are not deeply rooted in the misogynist founding of this country, we find the inability of long-dead sexists and slavers to recognize the fundamental humanity of others to be their problem, not ours.” Give me 20 justices who agree with that, and I’ve solved the problem of Alito’s opinion.
But I fear Democrats will not take all these ambitious if obvious steps unless they first learn how to fight the moral battles. I think of the many courageous people, mostly women, who serve as escorts to those simply trying to walk into abortion clinics. Every day, they bravely walk pregnant people through a gauntlet of vitriol so they can access medical services, while the haters—who yell and scream and threaten—somehow think they have the moral high ground. But we know that it is the abortion advocates who have always been on the side of truth and righteousness. They are the ones with the superior claim to moral clarity.
Now that Christian fundamentalists have claimed control of uteruses that don’t belong to them, perhaps it’s time for Democrats to take their cues from the brave clinic escorts instead of the people who think zygotes have more rights than rape survivors. Perhaps it’s time to stop trying to compromise with them and start trying to fight them.
