3 Test Cases Progressives Should Bring in a Post-“Roe” World

3 Test Cases Progressives Should Bring in a Post-“Roe” World

3 Test Cases Progressives Should Bring in a Post-Roe World

It’s time to take a page from the conservative playbook and bring a torrent of lawsuits against every state that passes a forced-birth mandate.


In an ideal world, the Supreme Court’s upcoming ruling nullifying Roe v. Wade and freeing the states to force people to give birth against their will would simply be ignored by a just executive. In an ideal world, President Joe Biden would make federal facilities available for abortion and family planning services. He would then provide physical protection for both the health care providers and the pregnant people seeking health care. For its part, an ideal-world Congress would immediately pass federal legislation protecting reproductive rights, while in the upcoming midterm elections the people would vote in leaders who stand opposed to the Christo-fascist takeover of American government.

Also in an ideal world: The ginkgo tree in my yard would sprout cash instead of leaves, and I’d use my new fortune to ferry pregnant people to safety. But that seems about as likely as the Democrats in the United States Senate getting off their ass and protecting rights instead of fundraising off the fear of losing them.

Roe will be taken away, and states will pass laws banning or functionally banning abortions, and Democrats will do nothing other than telling their voters (who have already handed Democrats control of the White House and both Houses of Congress) to “vote harder,” because apparently Democrats need a supermajority to combat what Republicans can do with a minority.

But while we wait for the people elected to defend women’s rights to wield power like the people elected to take them away always do, there is another Republican strategy progressives should use to fight the new anti-abortion laws: We should sue. Every state that passes a forced-birth mandate should face a deluge of lawsuits.

Oh, we’re going to lose those lawsuits. I don’t want to give anybody false hope. People of conscience are going to lose, and lose hard. The judges who do not believe that women should be treated as full people will not be stopped or flummoxed by compelling legal arguments. Conservative justices on the Supreme Court who have demoted pregnant people to second-class citizens who lose their personhood rights at the moment that conception takes place are not suddenly going to lose their nerve because their judicial hypocrisy is laid bare. But still, we should sue, and lose, and sue, and lose, and keep suing and keep losing.

Why? Because, according to conservatives, suing is the only way to register opposition to their theocratic laws and the only way to lay the groundwork to overturn this new precedent in a generation or two.

If you go back and listen to the Senate confirmation hearings of the justices who are about to vote to overturn Roe v. Wade, you’ll note that they all lied about their respect for precedent. But you’ll also note that they laid the groundwork to reverse themselves by repeatedly talking about how often Roe has been challenged. Indeed, in the draft opinion, Justice Samuel Alito references these near-constant challenges to Roe as evidence that the Supreme Court should not protect a woman’s right to choose. It would seem that conservatives believe rights should be abandoned if enough people complain about them.

So progressives should complain—through lawsuits—at every opportunity. And there will be lots to sue about. The position that a person should lose the right to their own body for nine months at a stretch is so ridiculous that it causes a number of other legal problems the moment a state legislates such a thing.

What follows are three types of lawsuits I’d like to see in every state that mandates birth by unwilling people. I don’t want progressives and Democrats and people of sense to “take an L”—I want us to throw so much at the system that it chokes on itself.

#1: Forced Birth Violates My Religious Liberty

It is important to remember that the entire forced-birth argument rests on a Christian religious belief that life starts at conception. That’s not science. That’s not something that all other faiths believe. Making laws that restrict what kind of health care people receive based on religious dogma is the definition of theocracy.

In the United States, such laws should be deemed to violate the First Amendment’s prohibition on the “establishment,” or preference, of one religion over all others. Such laws should be considered violations of the First Amendment’s guarantee of the free exercise of one’s religious beliefs. I would like someone to sue a forced-birth state arguing that mandating birth violates their religious practice.

I’m not going to nominate a person of a particular faith to do this—not imposing myself on other people’s religious beliefs is kind of my thing. But I will note that there are certain Jewish thinkers and scholars who have been eager to point out that, according to long-established tenets, abortion is actually encouraged when the life of the mother is threatened. And more generally, even in communities where abortion is frowned on, those arguments are not necessarily based on the Christian belief that life begins at conception. Put simply, it is only possible to argue that the state has an interest in prohibiting health care to pregnant people if you agree that life begins at conception, which is a spiritual belief not shared by other communities of faith.

And if the good-faith readings of other organized religions doesn’t float your boat, there’s always the Satanic Temple, which has been making this argument for years.

#2: Birth Mandates Are a Cruel and Unusual Punishment for Rape Survivors

I don’t think I can make the case that forced birth is a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment for people who engage in consensual unprotected sex. Or at least I don’t think that’s my strongest case, because to get into Eighth Amendment territory, I generally need some government action, and “forced you to follow laws you already know about” doesn’t quite cut it. (That the law itself is unjust, sadly, does not matter.)

But in the worst situations, I think you have the requisite government action to make a claim under the Eighth Amendment stick. In a situation, say, where a person is raped in prison, and is then prevented from getting an abortion because they’re incarcerated in a forced-birth state, that prisoner is being subjected to pain and terror “super-added” on top of their prison sentence.

The term “super-added” is not mine. It belongs to Neil Gorsuch, one of the justices who will vote to take away abortion rights, articulating a test for the Eighth Amendment that he invented out of thin air in 2019. In a death penalty case called Bucklew v. Precythe, Gorsuch made up a new definition for cruel and unusual punishment; he explained it as a situation where “terror, pain, or disgrace” were “super-added” to a punishment.

I’d argue that being raped but not being free to leave a place to seek medical care and instead being forced to carry your assailant’s genetic material to term involves the addition of terror, pain, and disgrace.

I’d say this logic should apply to people in prison; people who are in the armed services; and literally any government employee whose job requires them to live in a forced birth state and who can only leave with the approval of a supervising government agent. The Eighth Amendment should prohibit the state from forcing these people to bring a pregnancy to term against their will.

#3: Forced Labor Is Already Unconstitutional

It’s honestly right there in the 13th Amendment: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

It is simply unconstitutional to force people to do work on behalf of the state against their will. It’s unconstitutional no matter how “compelling” the state claims its interest to be. It might be really important to the state that I pick that cotton or plow that field, but the state cannot force me to do the work (anymore) except as punishment for a crime.

Forced birth involves the state commandeering a person’s womb for up to nine months, against their will, for no compensation, for having unprotected sex, whether consensual or not. Having consensual unprotected sex is not a crime, and in nonconsensual unprotected sex the person committing the crime isn’t the person being punished with pregnancy, So, either way, the 13th Amendment should apply.

The 13th Amendment has been hobbled since it was ratified by conservatives on the Supreme Court. The very first case under the amendment was brought in 1873 by white butchers who complained that the grant of a monopoly to one particular company made them involuntary servants of that company. The case was called the Slaughter-House Cases, and the court ruled, 5-4, that the 13th Amendment applied only to “the slave race” (which is what those people used to call people who looked like me). That still holds to this day.

But since precedent no longer matters, it shouldn’t be any problem to argue in front of this conservative Supreme Court that the Slaughter-House Cases decision should be chucked out. Heck, according to conservatives, limiting any constitutional principle to identity politics makes the court “the real racists” anyway. The 13th Amendment should cover women (or at least Black women), who could not be forced to labor against their will.

There will be other opportunities to sue. I believe the estate of the first woman who dies in childbirth after being unable to get an abortion in a forced-birth state has a wrongful-death suit to bring against that state. I believe that the first women denied a “Plan B” pill has an equal protection claim, because no man is denied drugs because of how it affects their reproductive system.

Make no mistake, the Republicans are going to prosecute women. And girls. They’re going to find people who seek abortion services and prosecute them, and they’re going to prosecute the doctors who try to help them. This is coming.

In response, the very least advocates need to be prepared to do is sue these Republican-controlled states, and keep suing until they get a sympathetic judge or jury. Defending themselves from lawsuits should be a constant thing for every state government that decides that pregnant people are second-class citizens.

Yes, we’ll lose. But every loss, every tragedy, every time a person is forced to give birth against their will can hopefully be another cut in the cloth Republicans are using to smother human rights in this country.

I know this will work, because this is what Republicans have been doing all this time. While Democrats were walking around talking about “safe, legal, and rare,” Republicans have been suing and plotting and suing and planning and suing and suing and suing for decades. Their suits have only been beaten back by the heroic, strategic, and dogged efforts of abortion rights advocates and organizations. But finally, electoral apathy and Mitch McConnell’s Supreme Court shenanigans have overcome the decades of labor women have poured into the fight, allowing Republicans to achieve their dream of having their cockamamie lawsuits work. Now, the conservatives can return women to the status of incubators.

It will take exactly the kind of commitment Republican forced-birth advocates have demonstrated, and women abortion defenders have demonstrated, for the decent people in this country to have any hope of restoring what the Supreme Court has taken.

Dear reader,

I hope you enjoyed the article you just read. It’s just one of the many deeply-reported and boundary-pushing stories we publish everyday at The Nation. In a time of continued erosion of our fundamental rights and urgent global struggles for peace, independent journalism is now more vital than ever.

As a Nation reader, you are likely an engaged progressive who is passionate about bold ideas. I know I can count on you to help sustain our mission-driven journalism.

This month, we’re kicking off an ambitious Summer Fundraising Campaign with the goal of raising $15,000. With your support, we can continue to produce the hard-hitting journalism you rely on to cut through the noise of conservative, corporate media. Please, donate today.

A better world is out there—and we need your support to reach it.


Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

Ad Policy