The Supreme Court’s draft opinion quashing Roe v. Wade who was leaked Monday night is not yet final. But once the dust settles, American women may conclude that they lost the right to abortion the same way an Ernest Hemingway character said he went bankrupt: gradually, then suddenly.
If something like the leaked bill becomes law, it will not just be the result of decades of campaigning, litigation and conservative judge appointments by anti-abortion groups and their Republican allies, but also of a single decision. which nullifies the establishment of a constitutional system. right that had inspired abortion rights activists around the world.
Thus, the opinion also raises a relevant question for activists around the world: the pursuit of abortion rights protection through the courts, rather than building the kind of mass movement that can fuel legislative victories. , is it a riskier strategy than it once seemed?
Roe’s Surprising Policy
It’s hard to imagine now, but back when Roe v. Wade was decided, in 1973, abortion was not a major issue for the American right, or even for evangelical Christians.
In fact, two years before Roe, the Southern Baptist Convention passed a resolution calling for the legalization of abortion. And although the two parties were divided on the issue, opposition to abortion was mostly associated with Catholics, who tended to vote for the Democrats.
But a few years later, that had changed. The change was not spurred by abortion itself, but by desegregation. After the Supreme Court ordered the desegregation of Southern schools, many white parents pulled their children out of public schools and sent them to all-white private schools known as segregation academies. After new lawsuits by black parents, the IRS revoked the schools’ tax-exempt status, sparking widespread anger among white evangelical Christians and catalyzing their new role as a powerful conservative force in American politics.
Publicly opposing desegregation was not really socially acceptable or acceptable to a larger coalition. But opposing abortion was. And abortion rights had followed a similar procedural route as Brown v. Board of Education and other civil rights cases, using impact litigation to win constitutional protections at the Supreme Court to override state laws. Thus, criticizing Roe became a way of talking about “government overreach,” “states’ rights,” and the need to “protect the family” without having to actively oppose civil rights or desegregation.
Over the years, the backlash has intensified. But the right to abortion still seemed relatively safe, especially after the Supreme Court reaffirmed it in Planned Parenthood v. Casey in 1992. The fact that the right to abortion remained protected in the United States, even in the face of growing political opposition, seemed to be an argument in favor of seeking protections through the courts.
Activists from other countries have sought a similar path. In Colombia in 2006, Monica Roa, a lawyer for the feminist group Women’s Link Worldwide, won exceptions to the country’s blanket ban on abortion by arguing that Colombia’s international treaty organizations, and therefore its Constitution, required exceptions for rape, incest or danger to life. or the health of the mother. This year, in a subsequent case, the court went further by decriminalizing any abortion before 24 weeks of gestation.
Pursuing the issue through the courts has allowed activists to partly circumvent the controversial politics around the issue, said Julie Zulver, a political anthropologist who has studied reproductive rights activism in Colombia. “During the peace process, everything became polarized,” she said.
In 2016, the government held a referendum on a peace deal with the FARC guerrillas. To undermine public support for the deal, conservative politicians, including former President Álvaro Uribe, have sought to link the draft deal to abortion, gender education in schools and other controversial social issues.
“As soon as the peace referendum started, it was as if you voted yes in this peace referendum, you voted to make your children gay, you voted against the nation. You vote against the idea of the nation and the family. And on top of that there are issues such as women’s rights or access to reproductive rights,” said Dr. Zulver.
In Mexico, President Andrés Manuel López Obrador has been ardent in his opposition to the Mexican feminist movement, which he sees as hostile opposition to his populist administration. But after years of grassroots organizing by the movement, the country’s Supreme Court decriminalized abortion in 2021.
The courts are the trap
But just as Roe’s passage and his ability to withstand opposition seemed to pave the way for abortion protection, his likely downfall now highlights a potential weakness in judicial protection: it inherently depends on the composition of the law courts. And over time, that can change.
In the United States, Republican voter opposition to abortion has helped fuel a decades-long effort to appoint and elect conservative judges at all levels of the justice system. Today, the result is a conservative supermajority on the Supreme Court that not only looks poised to overthrow Roe, but has also swung sharply to the right on other issues, including suffrage.
In Poland, when the far-right nationalist government failed to pass a restrictive abortion law through parliament, it instead turned to the constitutional court, which was made up of pro-party judges in power Law and Justice. In October 2020, the court effectively enshrined the failing legislation into constitutional law.
Sometimes litigation simply fails. In 2010, many believed that a challenge to Ireland’s abortion restrictions in the European Court of Human Rights could become a roe for Europe. But the court instead, issued only a narrow procedural decision.
Activism after all
In the end, it may come down to activism after all. And around the world, a trend has emerged: successful campaigns treat abortion as part of larger issues of national identity and rely on organizing backed by experienced activists.
In Ireland in 2012, the death of a young woman named Savita Halappanavar who was denied a medically necessary abortion became a rallying cry for the abortion rights movement. In 2018, the country held a referendum to change the Constitution to legalize abortion, which was passed with over 66% support.
As in Colombia, Irish activists have sought to make the issue of abortion a matter of national and social identity. But this time, the dynamic has been reversed: in Ireland, the most successful identity argument has been put forward by the party that is arguing in to favor abortion rights, framing reproductive rights as part of Ireland’s European identity.
“The frame of the Irish campaign for abortion rights was about compassion and how Ireland needs to be the compassionate face of Europe,” said Marie Berry, a political scientist at the University of Denver. who studied the Irish countryside. “That it is more compassionate than the UK because the UK has become more and more conservative, especially under the Conservative government. That we are in the EU, we represent a progressive Europe.
But perhaps the key to the movement’s success was combining this appealing message with the organizing experience of more radical feminist groups. “What shocked me when I researched with activists there was that in fact the organizing crux of the whole ‘Repeal the 8th’ campaign for abortion rights came from anarcho-feminist movements, which were more rooted in environmental movements than the liberal women’s rights movement,” Dr. Berry said. “The bulk of the people who voted for him, of course, were unaffiliated to the leftmost organizer nodes. But it was really the heart of the movement that made this possible.
In Argentina, the Ni Una Menos (“Not One Woman Less”) movement also combined sustained, long-term organizing with a framing that placed abortion rights within the broader context of a just society, presenting lack of access to safe and legal abortion as is only one aspect of the larger problem of violence against women. A 2018 bill to legalize the procedure failed, but in 2020 the country legalized abortion, making Argentina the largest country in Latin America to do so.
In the United States, on the other hand, legal abortion has been the status quo since the Roe decision in 1973, making it a difficult target for this type of sustained mass organization.
“I think the Indigenous Mobilization, some of the more progressive racial justice work, Occupy, all kinds of left-wing nodes within those movements, haven’t centered abortion in their advocacy because it’s been , constitutionally, more or less a problem solved since the 70s,” Berry said. And for other organizations focused on the intersection of reproductive rights with race and class, “abortion has always been there, but it’s not the only demand,” she said.
Centrist organizations and Democratic politicians, by contrast, have often framed abortion as a matter of unfortunate but necessary health services that should be “safe, legal, and scarce,” and have focused their activism on access issues. This was often vital for women in rural areas or states whose restrictive regulations had made abortion essentially unavailable in practice, but it did not generate the kind of identity-based mass appeal that was effective in countries like Ireland.
And so today, with Roe seemingly on the verge of downfall, American activists reflect on what it will take to build their own mass movement in the style of Ni Una Menos – and what they can accomplish before it’s not too late.