‘Roe v. Wade’ Is Nonnegotiable

‘Roe v. Wade’ Is Nonnegotiable

Don’t believe the hot takes that say we can do without it.


Is it time to bid farewell to Roe v. Wade? If Amy Coney Barrett is seated on the Supreme Court, as seems likely, she will be the sixth anti-abortion justice. That means John Roberts’s respect for precedent, which last summer led him to strike down restrictions on clinics because they were identical to those the court struck down in 2016, won’t matter. He can play the dignified centrist while the other five tip Roe into the grave. Of course, they might leave it technically in force while approving every restriction that crosses their desks. That would be the politically clever thing to do, because it would keep anti-abortion voters riled up while lulling into complacency the many pro-choicers who don’t read beyond the headlines. “Court Upholds Roe” will be what they take in, not “Court OKs Barbecuing Louisiana Abortion Docs.”

So prepare yourself for the hot takes, op-eds, and think pieces claiming the end of Roe might be all for the best. Abortion should have been decided by legislators in the first place, this position holds, not by nine aloof justices insulated from people and politics. Joan C. Williams gets a head start with her New York Times opinion piece “The Case for Accepting Defeat on Roe.” Her points have all been made many times before, so let me go through them for handy future reference.

Abortion, Williams points out, is already inaccessible for many women: 90 percent of counties have no clinics, poor women don’t have money to travel, and so on. This is all true, but one way or another, more than 850,000 people manage to get a legal abortion each year, including many in or from states with only one or two clinics. This testifies to the fierce determination of unwillingly pregnant women, as well as to the hard work of organizations that raise abortion funds and make the arrangements and to the providers who move heaven and earth to accommodate their patients.

Ruth Bader Ginsburg, Williams continues, suggested that Roe short-​circuited a legislative process of liberalization that was underway; the backlash to Roe solidified the right-to-life movement and brought anti-abortion evangelicals and Catholics into the Republican Party. Yet Ginsburg defended reproductive autonomy again and again as essential to women’s dignity and equality, and she may have been wrong about the history. As Linda Greenhouse wrote in her Times obituary for Ginsburg, “There was in fact ample evidence that what had once appeared a steady legislative march toward revision or repeal of the old criminal abortion laws had stalled by 1973 in the face of powerful lobbying by the Roman Catholic Church. And there was also evidence that the backlash against [Roe] was not a spontaneous response—in fact, polling in the decision’s immediate aftermath demonstrated widespread and growing public approval—but rather was elicited by Republican strategists hunting for Catholic voters, who had traditionally been Democrats.”

Williams writes that we need a “dialogue” on abortion, like that which persuaded voters in Ireland to end the constitutional ban on abortion. Well, dialogue is always good, and getting rid of the Eighth Amendment was a magnificent victory and a powerful rebuke to the Catholic Church, but let’s not oversell the new Irish law. It still bans almost all abortion after 12 weeks. A similar law in the US would mean that about 100,000 women a year would be out of luck. And what would anti-choicers give up in return? I’m betting: nothing. They would keep harassing patients and providers, passing restrictions to force clinics to close. To them, even the earliest abortion is murder.

What Williams is really getting at is the old pipe dream that if only abortion could be gotten out of the way, the white working class would return to the Democratic Party en masse.

Frankly, I doubt it. There are too many other things for them to like about Republicans: white supremacy, anti-​intellectualism, superpatriotism, machismo, gun rights, and (let’s not forget) taking away people’s health care, including their own. Williams claims, “The attitudes driving opposition to abortion actually reveal some surprising common ground with progressives on economic issues.” Maybe on paper, but if Democrats could win back votes by combining serious restrictions on abortion with robust economic progressivism, ambitious pols would surely have tried it by now. Notwithstanding exceptions like Pennsylvania Senator Bob Casey Jr., anti-abortion Democrats have tended to be conservative on economic issues as well. There’s a reason social democratic welfare states have liberal abortion laws.

What Williams means is that, like progressives, “pro-life” voters claim to oppose greed and materialism; they see abortion as promoting selfishness and individualism. This stance would be more persuasive if it weren’t aimed at women. They are the ones who are supposed to be sacrificing their needs and dreams and desires to have that baby, no matter what. It’s the old picture of women having abortions because they hate children, are ambitious for success, or just want to take that European vacation or wear that prom dress. However, as Williams acknowledges, most women who have abortions are already mothers and are poor or near poor (they are also disproportionately Black, although she doesn’t mention that)—hardly the privileged careerists of popular fantasy.

Somehow Williams managed to write an entire op-ed without mentioning such inconvenient words as “sex,” “birth control,” “abstinence education,” “sexism,” or “patriarchy,” let alone bringing up domestic violence, reproductive coercion, or even medically dangerous pregnancies. She leaves intact the stereotype of women who have abortions as careless and sluttish and does not bother to explain what is supposed to happen to the unwillingly pregnant women in the 29 states where abortion could immediately be criminalized or unprotected by state law after Roe falls. She does not acknowledge that abortion, as I and others have written, is itself an economic issue.

What Williams has written is not an argument. It is just a wish. Overturning Roe will not take abortion off the political table. It will politicize it even more, as every state legislative session and every election, from small-town mayor to president, becomes a battle over whether, when, and under what circumstances women can legally end their pregnancies—or perhaps even use contraception, which some anti-choicers believe is abortion, too.

Thank God for the abortion pill, which is already being used in self-managed abortion. Even Amy Coney Barrett may find it impossible to keep it out of women’s hands.

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