This is part two of a three part series (you can find part 1 here) on the state of reproductive rights in the United States. One of our guest writers, Christine Zulkosky, is passionate about accessible reproductive health for all.
A note from Christine Zulkosky: “This piece was originally written in May 2020, while many of us in New York City were still confined to our apartments. It was finished before the resurgence of the Black Lives Matter movement and the accompanying protests. With the death of Supreme Court Justice Ruth Bader Ginsberg and the confirmation of Amy Coney Barrett, abortion access is in jeopardy now more than ever. This series is a slice of life from this past year. I hope it clarifies some of what is at stake. This is part one of a three part series.”
Part 2: Was Roe v. Wade in Danger Before Amy Coney Barrett?
I am someone who is reasonably “plugged-in” to the issue of reproductive justice. This fact has been brought to my attention in recent weeks. When I’ve asked peers to read what I’m working on, they politely explain that they need more context. For someone who is not as tuned in to these issues… My parents ask what I’m writing about and I watch their eyes glaze over as I delve into the specifics, their response confirms that I have lost them. Well, I’m sure it will be well written… At the tail-end of a Friday night spent in isolation, on a video chat with a girlfriend from high school, I feel inspired by my third glass of wine, and I enthusiastically relay the information I’ve gathered, my most up-to-date understanding of the emergency bans. When I pause for a reaction, she smiles. Wow, it is so interesting to hear this explained by an expert… This is the crux of the issue, I am not an expert. I am just someone who wants to understand why my rights are being threatened, especially at a time like this. I keep expecting everyone else to feel the same sense of urgency.
So, I reach out to a real expert. Mary Ziegler is a legal historian and law professor at Florida State University. She has written three books on the legal history of the abortion debate in the United States, which she characterizes on her website as a “kaleidoscopic view of the history of American abortion law and politics.” I actually read one of her Op-Eds in the Times the morning before I got on the bus to D.C. for the rally at the Supreme Court. When I email her one morning asking for an interview and she responds within minutes, what could be described as “fangirling” ensues. We schedule a phone call for later that afternoon, and I spend every minute I have until then researching the emergency bans.
Despite my hours of reading (and my supposed “plugged-in”-ness), much of our conversation is devoted to unpacking just how confusing this really is. I am relieved to find out it is not my fault that I don’t fully understand, but that the full picture is intentionally confusing. The historical context is also essential to understanding where we’re at now. Going into the call, of course I’m familiar with Roe v. Wade. I’ve read enough to know that it established a woman’s constitutional right to terminate a pregnancy, up until a certain point. That “certain point” was determined by the trimester schedule. This meant that during the first trimester, states cannot limit access to abortion. In the second trimester, states could regulate, but only to preserve the mother’s health. In the third trimester, states could opt to ban abortion entirely, unless necessary to save the life of the mother. This is relatively comprehensive. Unfortunately, though, there have been numerous Supreme Court cases dealing with abortion restrictions since then, each one chipping away at the precedent outlined in Roe. Each case pulls at a loose thread in the fabric of that decision, until eventually the whole thing unravels entirely. The pandemic provides an opportunity to tug at a few more strings.
One of these cases was Planned Parenthood v. Casey, decided in 1992, after states simply began passing legislation that was directly in conflict with Roe. Anti-abortion legislators deliberately broke the rules in order to force the Supreme Court to revisit the issue of abortion access. This was (and still is) an intentional strategy. The hope was (and still is) that a newly composed Supreme Court would overturn the decision made in Roe. In an article Mary co-authored with Joanna L. Grossman in Verdict last week, aptly titled “Unconstitutional Chaos,” they write that the Casey decision maintained that women have a constitutional right to abortion, “but reformulated the trimester framework. Under the standard announced in Casey, a state can regulate pre-viability abortion only as long as it does not impose an undue burden on a woman’s right to terminate a pregnancy.” I underline the phrase “undue burden” and scribble down in my notes, what does this mean, exactly? Where is the line?
When I ask Mary, she says, “Nobody knows where the line is, that’s part of the issue.” This creates a guessing game of interpretation based on which restrictions the court already struck down. The phrasing is intentionally vague. That way, in each subsequent Supreme Court case, “undue burden” could be interpreted to mean something different. Mary tells me that, “In law, especially constitutional law, things can be kind of like a moving target. The court will throw out these terms and then different legislators will shape their meaning over time. So, if you feel like you don’t know what it means, that’s because it’s changing.” Although the constitutional right to abortion was upheld by the court’s decision in Casey, the introduction of new confusing language means that states can get away with passing new restrictions. The rules get muddier each time a case like this reaches the Supreme Court.
We saw this happen with Whole Woman’s Health v. Hellerstedt in 2016, when the court determined that a law was unconstitutional if it had no benefit to women’s health, and also created a substantial obstacle to access (in this case, by forcing clinics to close). This decision created the new standard for an “undue burden.” And yet, who knows if this will hold up. The June Medical Services v. Russo case that I attended the rally for is deciding on a law identical to the one shot down in 2016. The only difference? Two new additions to the Supreme Court, hand picked by old grab ‘em by the pussy himself.
The history of abortion legislation since Roe v. Wade makes it painfully obvious (if it wasn’t already) that these “emergency bans” on abortion have nothing to do with the emergency. The pandemic (a very real emergency indeed) merely serves as an opportunity for anti-abortion legislators to capitalize on the chaos of the moment. Look at the pattern. Anti-abortion groups have been working hard to chip away at Roe v. Wade since the moment it was decided.
From a legislative perspective, the most dangerous thing about these bans is their emphasis that abortion is not necessary for women’s health. Suggesting that abortion is not essential healthcare during a time of emergency diminishes abortion’s importance as essential healthcare at any other moment in time. As Mary pointed out to me, “implicit in the decision to restrict abortion access during an emergency is the belief that it is not as important as other fundamental rights.” Abortion is a constitutional right, like any other. We would think it was ridiculous if suddenly we were told that the right to bear arms would be postponed until after the pandemic.
In times of emergency, the state has more authority than it normally would. This is obvious considering the lockdowns happening across the country, and those precautions are absolutely necessary and justified. An emergency ban on abortion, however, is simply an opportunity to exploit that emergency, with all its stress and tragedy, and take advantage of that extra authority to gain new ground in a battle that has already been raging for decades. It is guerrilla warfare against women.