Your Body Is a Wonderland For Conservative Legislation
Plus, is Susan Collins out to get me????
Obviously, we’re talking about it, and we’re going to keep talking about it because, for some reason, they’re obsessed with it so we have to talk about it!!!!!
Last week, as we are all undoubtedly aware of by now, a leaked Supreme Court opinion revealed a majority of the justices have voted to overturn Roe v. Wade. We’ve already talked about the social history of reproductive rights here on E4P back in September but now that the SCOTUS has entered the chat, it’s important to look at the terms and conditions of bodily autonomy and talk about the legality of safe abortions.
As I have not gone to law school nor had an abortion, I wanted to talk to someone who knew what it is like to experience both. This week, I’m talking with my mother Danielle Sharp about the history of abortion laws in this country, the prominence of the Supreme Court in the legal system, and what her thoughts are on lying under oath during a job interview.1
Before we begin, it is important to point out that Roe is still in effect. To emphasize this, I asked Danni:
Emily: What is a draft opinion and is it the final decision in a case?
Danielle: A draft opinion, is exactly that, a draft. It is not the final decision in a case and it does not yet equal the law of the land. As far as the Supreme Court is concerned, after oral arguments end, justices typically discuss the cases with their law clerks to seek out different perspectives and form an idea of how they will vote.
Then the justices meet to discuss the case and take a tentative vote (they each cast an initial vote). Once the votes have been tallied, the senior justice in the majority will assign someone to write the majority opinion. If a minority of justices believe that the case should have reached a different outcome, the senior most justice in that group assigns someone to write a dissenting opinion.
Before there is a final ruling, the justices circulate draft opinions amongst themselves as part of their deliberations on a case. No opinion is considered the official opinion of the Court until it is delivered in open Court, or at least made available to the public.
Emily: Do you think the leaking of the draft opinion will cement the justices’ decisions or do you think the national backlash can potentially sway their votes?
Danielle: I don’t think it's the leaking itself that will necessarily cement the justices’ decisions, but I also don’t think that anyone’s votes are going to be swayed by national backlash.
I do believe the decision is a done deal—regardless of the Court stating that the draft opinion “does not represent a decision by the Court or the final position of any member on the issue of the case,” that’s just them thinking we are all idiots.
Is it theoretically possible that the draft opinion does not become the majority decision of the Court? Yes. During deliberations and opinion circulation it is definitely possible that a justice could change his or her vote. But in this case and given the make up of the court, it is highly unlikely that one of the four—Clarence Thomas, Brett Kavanugh, Neil Gorsuch or Amy Coney Barrett—would change their vote, which would be needed for the bottom-line decision to change.
The Legal Stuff
In the timeless words of Snoop Dogg in the intro to “California Girls,” let’s take a journey because misery loves company and if I had to learn about this absolutely demoralizing horseshit, you all do, too.
The modern legal history of abortion begins in the UK in 1803 when it was made illegal by the passing of Lord Ellenborough's Act. This law is technically called the Malicious Shooting or Stabbing Act of 1803 and it was designed to enact
further Prevention of malicious shooting, and attempting to discharge loaded Fire-Arms, stabbing, cutting, wounding, poisoning, and the malicious using of Means to procure the Miscarriage of Women; and also the malicious setting Fire to Buildings.
Prior to that, abortion in the Western world was legal until the “quickening” or when a pregnant person is able to feel the fetus move in the uterus which largely takes place sometime about 3-5 months after conception but is fully subjective to each pregnancy.
According to historian Leslie Reagan, author of When Abortion Was a Crime:
At conception and the earliest stage of pregnancy, before quickening, no one believed that a human life existed; not even the Catholic Church took this view… Rather, the popular ethic regarding abortion and common law were grounded in the female experience of their own bodies.
However, soon after the passing of that bizarre fucking act (yes, we moved right past it because there’s no time to unpack all of it), states across the US began re-evaluating how much they respected women.2 While a few laws appeared in the 1820s, it wasn’t until after the Civil War that the US legal system really cracked down and criminalized abortion.
It is important to note, though, that
a brief filed in the [2022] case by groups representing historians supportive of abortion rights said that in 1868 "nearly half of the states continued either not to prohibit abortion entirely or to impose lesser punishments for abortions prior to quickening."
Even in places where all abortions were banned, "ordinary citizens continued to believe that not all abortions were criminal and that women held the power to determine whether to terminate a pregnancy," the brief said. (X)
But the timeline unfortunately brings us back to a piece of history we discussed last time which is how racism—and medical racism, in particular—reshaped reproductive rights in America. While I do love our favorite historian for most things, the page on Abortion in the United States only mentions that physicians were at the forefront of the early anti-choice movement but not why:
Prior to the Civil War, abortion and contraceptives were legal in the U.S., used by Indigenous women as well as those who sailed to these lands from Europe. For the most part, the persons who performed all manner of reproductive health care were women — female midwives. Midwifery was interracial; half of the women who provided reproductive health care were Black women. Other midwives were Indigenous and white.
However, in the wake of slavery’s end, skilled Black midwives represented both real competition for white men who sought to enter the practice of child delivery, and a threat to how obstetricians viewed themselves. Male gynecologists claimed midwifery was a degrading means of obstetrical care. They viewed themselves as elite members of a trained profession with tools such as forceps and other technologies, and the modern convenience of hospitals, which excluded Black and Indigenous women from practice within their institutions…Gynecologists explicitly revealed their motivations in undermining midwifery: They desired financial gains, recognition, and a monopoly… They believed that men should be paid, but not women — particularly not Black women.(X)
Physicians also didn’t just advocate for criminalizing abortion on the basis of racism, because that would be too easy—they did it on the basis of xenophobia as well! As we discussed last time, there was a desire to preserve a white majority population and so white cis male physicians used this logic to appeal to white cis male lawmakers.3
But abortions didn’t stop just because the laws decreed it so. In 1873, the Comstock Law was passed “which made it illegal to deliver through the U.S. mail any ‘obscene, lewd, or lascivious’ material. It also prohibited producing or publishing information pertaining to the procurement of abortion or the prevention of conception or venereal disease, even to medical students.”
While the precise abortion rate was not known, James Mohr's 1978 book Abortion in America documented multiple recorded estimates by 19th century physicians which suggested that between around 15% and 35% of all pregnancies ended in abortion during that period. (X)
By 1900, abortion was illegal in every state and receiving one was a felony offense. But again, obviously, they didn’t stop!!! A 2016 CNN report on the history of abortion in the US included the statistic that “in the 1950s and 1960s, the estimated number of illegal abortions ranged from 200,000 to 1.2 million per year, according to the Guttmacher Institute.”
Right before Roe was passed in 1973, “30 states prohibited abortion without exception, 16 states banned abortion except in certain special circumstances (e.g., rape, incest, health threat to mother), 3 states allowed residents to obtain abortions, and New York allowed abortions generally.” (X) The Guttmacher Institute—a pro-choice reproductive health research group—has done a fantastic job of painting a picture of what that patchwork legal structure meant (and what we likely will return to in a post-Roe country:
The year before the Supreme Court's decision in Roe v. Wade, just over 100,000 women left their own state to obtain a legal abortion in New York City. According to an analysis by The Alan Guttmacher Institute, an estimated 50,000 women traveled more than 500 miles to obtain a legal abortion in New York City; nearly 7,000 women traveled more than 1,000 miles, and some 250 traveled more than 2,000 miles, from places as far as Arizona, Idaho and Nevada.
Data from the New York City Department of Health confirm that this option, as difficult as it was, was really only available to the small proportion of women who were able to pay for the procedure plus the expense of travel and lodging…
Even in the early 1970s, when abortion was legal in some states, a legal abortion was simply out of reach for many. Minority women suffered the most: The Centers for Disease Control and Prevention estimates that in 1972 alone, 130,000 women obtained illegal or self-induced procedures, 39 of whom died. Furthermore, from 1972 to 1974, the mortality rate due to illegal abortion for nonwhite women was 12 times that for white women. (X)
And then, of course, Roe v. Wade was passed by eight cishet white men and one cishet Black man (progress?) who look like they made the decision by collectively swatting in a dismissive fashion and saying, “Yeah, sure, sweetie. You can have some rights.”
But Roe itself is remarkably finicky and specific in its language: abortions are legal, they said, because we don’t want to know if you’re getting them. You’re owed the privacy to get an abortion until viability and we guess also after viability, too, if your private doctor agrees privately.
What the Court did not decide on was when human life begins:
The Court declined to make an attempt at resolving this issue, noting… Instead, it chose to point out that historically, under English and American common law and statutes, "the unborn have never been recognized ... as persons in the whole sense", and thus, the fetuses are not legally entitled to the protection afforded by the right to life specifically enumerated in the Fourteenth Amendment. So, rather than asserting that human life begins at any specific point, the court simply declared that the State has a "compelling interest" in protecting "potential life" at the point of viability. (X)
While yes, Roe is a massive victory for bodily autonomy after decades of bullshit, the murkiness of this ruling is how we ended up with states enacting more than 1,074 laws to limit access to abortion4 and all of those damn heartbeat bills—the combination of which allowed us to get to the point of watching this decision fall apart.
And now, a PSA.
You’re a Fool, Susan Collins. A Real Fucking Fool.
Maybe I shouldn’t be provoking Susan Collins when her supporters who she apparently has are after me: I recently tried to post a TikTok with a popular sound essentially saying “fuck you” to Susan (for obvious reasons), and it got taken down TWICE for violating community guidelines for BULLYING AND HARASSMENT.
Anyway, Susan is a fool for believing transparent liars but in a way, so many other Americans have for the last 50 years. Overturning Roe is not a new or surprising desire of the right—they’ve just finally crept to a position where they’re able to get away with it.
I asked my mom:
Emily: What do you think about three of the four most recent Supreme Court appointees stating under oath during their confirmation hearings that they would uphold Roe, only to vote to gut it?
Danielle: While some will argue that these justices did not necessarily lie to Congress during their confirmation hearings, and that the language they used in their testimony did not promise to uphold abortion precedent, I would ask Susan Collins how’s she’s feeling right about now. Lied to? Bamboozled? I sure do and I didn’t bend over for these justices like Collins did.
Like mother, like daughter.
We can pretend all we want that Donald Trump didn’t nominate justices to overturn Roe and we can be as “forgiving” as Susan is stupid, but the truth is that Kavanaugh, Gorsuch, and Coney Barrett all offered answers that are difficult to square with the decision in the case at hand. They all stressed the importance of precedence during their Senate confirmation hearings, assuring the Senate Judiciary Committee and the American people that Roe was “established precedent.”
But diving a bit further into the specific language they each used makes my stomach turn: in 2017 Gorsuch said, "the Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the Fourteenth Amendment. That’s the law of the land. I accept the law of the land.” In 2018, Kavanaugh said, Roe “is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis.”
And finally, while private citizen Coney Barrett signed her name to a newspaper ad in 2006 saying it was “time to put an end to the barbaric legacy of Roe v. Wade,” during her 2020 Senate Confirmation hearing, she declined to say whether she thought Roe had been properly decided. WTF, Amy??? Rather disingenuously, she said, “precedent is a principle that you’re not going to overrule something without good reason or roll up the law without justification for doing so.”
Basically, all these legal geniuses laid the ground work for respecting precedent during their confirmation hearings but now, to me at least, it seems that this case is merely replacing precedent with policy. Senator Maria Cantwell (D-Wash) said it best: “Overturning a woman's right to privacy and reproductive health after 50 years of case law makes clear the far right’s agenda: get Supreme Court justices who will testify at confirmation hearings that Roe v. Wade is settled law, but now vote to overturn it.”
More along those lines—that the far right is taking advantage of the current Supreme Court make up to replace precedent with policy—is the focus in Alito’s opinion that "there is no explicit protection for abortion in the Constitution," that “the inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”
How does 50 years of case law NOT deeply root an issue into history and traditions???
It is sounds absurd to now say that we’ve “gotten it wrong” these past 50 years by giving women the right to make decisions about their own bodies. Whoops, no sorry—we’re taking back that right after upholding it for the past 50 years because we just realized: it's not written in the Constitution.
Unfortunately, there is also no recourse or remedy to hold justices accountable for the “inconsistencies” in their testimonies during their confirmation hearings. Which, of course, leads to the consideration of the confirmation process itself.
When an SNL skit is so spot on, isn’t it time to reconsider reality?
Something I found really funny recently was when Ted Cruz said that the leak of the draft opinion was “the most grotesque politicization of the Supreme Court in the history of our nation.” I’m sorry—what? Have we been watching the same Supreme Court nomination hearings??
This is how you know you’re working with people who only intend on making bad-faith arguments. That’s essentially what Alito’s draft opinion is—there are no legal grounds to overturn this ruling except for the fact that conservatives don’t like it because they’ve been told not to like it because, why again? They’re not in control of someone like fucking Remy the Rat? If you have such a strong opinion about a healthcare decision, you can sit on hold for three hours with my insurance company, Amy.
What if, and hear me out, the most grotesque politicization of the Supreme Court wasn’t the leaking of the draft opinion? It’s a crazy thought, I know!!! I asked my mom:
Emily: As a lawyer, what does the Supreme Court represent in our legal system, and have the last ten years changed that presence?
Danielle: Years ago, I viewed the Supreme Court with awe: the Justices themselves, the process and procedure of how cases wind up before the Court. Oral arguments, awaiting the decisions in June or July—all of it. The Court seemed to represent something special; not holier than thou but some kind of non-preachy guiding light and moral compass.
It’s hard to explain, but I thought of the Supreme Court as the ultimate in legal recourse. Even if I did not agree with a particular decision, I felt as if the Justices on the Court were impartial distributors and protectors of the law. That they had carefully and objectively reviewed the facts, the case the precedent, and had ultimately decided each case in good faith and without a political agenda.
I am sorry to say, that for me, the legitimacy of the Supreme Court has been compromised by the Republican Party and Donald Trump. What happened in 2016 with Merrick Garland’s nomination was the Court’s downfall for me, and I believe that the last three justices were nominated to overturn Roe v. Wade.
Obviously, the Supreme Court has had some Supreme Fuck Ups in its history (they literally came up with a legal rationale for segregation) but what did we expect from any institution in America founded in the 1700s that features life appointments based on the whims of partisan elected officials? Fairness? Justice?
But there’s a strong difference between politics and basic human rights and it’s really fucked up when that is not reflected in the law of the land.
Take It Away, Danni Lee!!!
Growing up, there were two photos of my mom and her friends at different marches on Washington for reproductive rights right above our TV so they were always in view. She told my sister and me her abortion story because she wanted to remove any potential stigma should we ever need one ourselves.
My mom has always made it abundantly clear that my body is just as much mine as my identity, my personality, my passions, my beliefs, my preferences—as every other part of me. Living in the world we do today, I am unendingly grateful for that.
Emily: What has your experience marching and advocating for reproductive rights looked like?
Danielle: The first time I marched was in 1989. I was a college student at SUNY Albany and I travelled down to Washington, D.C. with my roommate and some other women by charter bus to participate in NOW’s March for Women’s Lives in response to Missouri’s anti-abortion laws pending before the Supreme Court and the Bush Administration’s urging of the reversal of Roe v. Wade.
That march drew crowds that had not been seen in Washington since the Vietnam protests of 1969 and 1971—a record breaking crowd of 600,000. It was like nothing I had ever seen before. The sheer volume of people gathering was amazing, and I was proud to be a part of defending something that I believed was a basic human right. There were many disturbing aspects to the march, however, like the pro-life propaganda that we were subjected to throughout DC.
I returned to Washington, D.C. for the March for Women’s Lives in April 1992 when Casey v. Planned Parenthood was pending in the Supreme Court. I believe that march was record breaking with 750,000 abortion rights supporters in attendance. Once again, I felt as if it was a privilege and a duty to defend a right that others before me had fought so hard to secure.
In 2017, I marched in New York City on January 21st, the day after Donald Trump’s inauguration together with my younger daughter to send a message to the administration that “women’s rights are human rights.” (That’s what my sign said!) While there wasn’t a specific Supreme Court case pending for this march, women’s right’s and reproductive freedoms nevertheless felt attacked and in need of defending.
I believe there are Bans Off Our Bodies Marches being organized in response to the Dobbs v. Jackson Women’s Heath case and you can bet I will be marching!!!
Emily: This might seem like an obvious question, but why is Roe so important to uphold?
Danielle: Because when it is overturned, 33.6 million people across the country will lose access to abortion, and 26 states will automatically outlaw it.
Because it guarantees a constitutional right to abortion in certain circumstances and limited the ability of the states to ban abortion procedures.
Because it granted a protected right of privacy. With that right of privacy, other rights—and freedoms—became available, like equality and autonomy.
Because it is important for women to have full control over their own bodies. If we deny that, we deny women the right to be autonomous beings.
Because without the protected right of privacy, other rights become jeopardized as well, like birth control and marriage equality.
Can’t forget to mention that Lawrence v. Texas may come up again since Justice Samuel Alito also mentioned it in his leaked draft opinion. This little baby decriminalized same-sex relationships in America.5
Emily: Why is protecting safe abortions so important to you?
Danielle: Because banning abortion doesn’t end abortion, so it is important that all abortions are safe, legal and accessible.
I don’t remember a time before Roe and I am beneficiary of its legacy as I had a legal abortion in 1986. So while I did not have to think of the unthinkable for myself and be subjected to an illegal and dangerous abortion, I cannot fathom a world wherein my daughters might have to. I cannot fathom the idea that my daughters would have to live in a world with less rights than me. I cannot fathom that the past 33 years of my advocacy to defend reproductive rights would be for naught.
And I cannot fathom the horrors that will ensue for so many people if abortion is once again made illegal.
Of course, as we discussed last time and even earlier in this conversation, the weight of this decision when finalized will not fall heaviest on those who are like my mom and me. I just wish more cis white women with a lil bit of income living in blue states could be more like Danni Lee: channel your anger and fear to fight for everyone affected by decisions like this.
Donate to local abortion funds, join a protest around the country, and be a Danni:
Emily: What are your thoughts on Connecticut’s recent bill?
Danielle: To quote Gloria Steinem, “For all those women in Texas, I will say to you what I said when asked what I would say to Melania Trump: I have a guest room in Connecticut."
It should go without saying, but this is just one snippet of this unnecessarily convoluted issue. There are so many millions more conversations to be had and stories to tell about abortion and reproductive rights overall and I want to continue to have them. But there is only so much space in this little itty bitty newsletter so we’ll have to get there one chat-in-which-I-yell-about-a-Republican-making-a-fool-of-themselves at a time. Matt Gaetz—you’ve been spared this one.
For now, I want to thank my mom not only for doing this but for everything. I guess not everyone watches the Makers documentary for movie night to learn about feminism in America at formative age but we did and I’m better for it.
Brett.
For the most part, they were the only gender seeking abortions at the time.
According to Reagan: “White male patriotism…demanded that maternity be enforced among white Protestant women.”
If you thought 50 years was too soon to establish a legal precedent, wait until you hear that that case was tried in 2003.