It has long been under assault in many individual American States. Now Donald Trump's Washington is joining in the attackby Dahlia Lithwick / February 13, 2017 / Leave a comment
Published in March 2017 issue of Prospect Magazine
Throughout most of last year, reproductive rights activists could not have been faulted for believing they had won America’s abortion wars once and for all. In February, Antonin Scalia, the Supreme Court’s most vociferous pro-life justice, died unexpectedly, leaving a court often lodged at 5-4 on social issues in a new 4-4 equipoise. Hillary Clinton was ahead in the polls for the presidential election and it looked like she would soon be able to fill his seat and perhaps two others with pro-choice justices who would then control the court for decades.
Things looked even brighter in late June, with a surprising and resounding victory in the most important case on reproductive rights that the Supreme Court had seen in 25 years. Whole Woman’s Health vs Hellerstedt, decided on a 5-3 margin, struck down onerous regulations in Texas that would have closed all but a few of the state’s abortion clinics. In a definitive opinion siding with the besieged clinics, the court majority insisted that regulations claiming to promote the health interests of women needed demonstrably to help them, and couldn’t just be pretexts for shutting down facilities. It was especially significant because it placed practical defences in front of the theoretical right to an abortion, which has been subject to a remorseless war of attrition in many states, almost since it was first established in the 1970s.
Pro-choice activists dared to feel as if the intractable fight over abortion was shifting in their favour. Such hopes were shattered in November, with the triumph of a billionaire thrice-married playboy who stood for the presidency on the laughable premise that he was a man of deep, conservative religious conviction.
To understand what is likely to happen next, a little history is useful. Ubiquitous 19th-century state laws forbidding abortion (mostly at “quickening,” which happened later in a pregnancy) came under legal assault from feminists and other activists in the 1960s. Individual states began to liberalise and in 1970, New York became the first state to allow abortion on demand. Laws differed state by state when, in the famous 1973 Roe vs Wade ruling, the Supreme Court found a constitutional protection for abortion, depending on the trimester. This sweeping ruling was made on the strength of a right to privacy, controversially ruled to be implicit in the broader right to liberty of the post-Civil War 14th Amendment, which had been passed with an eye to the position of former slaves in the south. Reliance on that amendment, and the location of the right in a gauzy “penumbra” of other rights was a red flag to religious and cultural conservatives. Ever since, both groups have worked tirelessly, mostly but not exclusively at the state level, to chisel away at the implications of Roe.