There’s a way of looking at reproductive rights that doesn’t get the attention it deserves. With these rights, women have control over their bodies, yes, but they have something more – standing in our society.
Access to abortion is more than “freedom to choose.” It means parity, in theory, with men. It means having the political equality of a full and free citizen. It’s the Declaration of Independence made manifest.
The status of women depends on the right to privacy. Take that away and you take standing away. In hearing Dobbs v. Jackson Women's Health Organization, the Supreme Court appears ready to rescind privacy so that governments can regulate anything done privately.
With that, the status of women will be degraded. In some cases, it will be gone in all but name. And with that, the court will begin an era closer to the age of disenfranchisement before universal suffrage. As Lisa Needham told me, “women will be second-class citizens.”
In the interview below, Lisa and I imagine the worst-case scenario. She’s an attorney and contributor to Dame, Rewire News and Balls and Strikes. Lisa is an authority on abortion politics and law.
The future is not bright, she said. “Take care of yourself and your people - think small, think protective and carve out safe spaces.”
Let's imagine Roe is gone. That's not likely, but with this court, it's not impossible. What now? What does the country look like now that women no longer have reproductive freedom?
I think that Robin Marty, who wrote two books about Roe, said it best when, after Ruth Bader Ginsburg died, said: "I think it's fair to say we're going to see abortion is completely illegal except for the West Coast [...] the Northeast, and then basically Colorado, Minnesota, Illinois and New Mexico." I think that's apt.
You'll see a patchwork of availability and a massive push to get people to those states for procedures. But states don't have the capacity and abortion funds don't have the money for that to fix the problem.
Put simply, huge swaths of the country will have no access. It always seems over the top to say women will be second-class citizens, but that will absolutely be the case.
What are activists talking about in this worst-case scenario? What can be done with the understanding that no solution is ideal?
I think a lot of activism is organized around that worst-case scenario. Educating people about the possibility of self-managed medication abortions is key. People are working to ensure by-mail access to medication abortion. I think you'll see, again, sort of a patchwork of efforts to ensure remote access in states that get rid of Roe.
Let's talk about "self-managed medication abortions." You're referring to the pill, correct?
Basically, it refers to obtaining the medication abortion pills directly rather than through a provider in your state.
Walk me through that process. I'm pregnant. I live in Alabama. How do I get the abortion pill? Is it legal to have it shipped to me?
This is where it gets difficult.
Some states are foreclosing even that possibility. Texas passed a law banning the mailing of pills within the state in an attempt to limit access. If you're somewhere that hasn't yet done that, you'd go through a resource like Plan C Pills to see what your options are. That may include a prescriber who is outside the United States writing the scrip and sending it from a pharmacy outside the United States.
That's a long way of saying whether it is legal will vary by state and that conservative states are going to work to make it illegal to have it shipped to you.
Let's imagine that it’s illegal to ship pills. How is it enforceable?
I'll admit I'm not sure.
Conservative legal scholars have just gleefully said that Texas law trumps, say, the FDA's current stance that abortion pills could be mailed to you. I'm not sure it's that simple. I'm not sure a state can override something the federal government agrees could be shipped over state lines.
Honestly, we're not going to know until someone in a conservative state gets arrested for sending or receiving pills, and then see how a lawsuit plays out.
Are there people talking about the possibility of buying abortion pills, then sending them to those who need them? Technically, that would not be a sale. It would be a gift. I don't know how that would be organized at the scale needed, however.
I've seen informal discussions about that, but I don't know whether there's an organized push to do that at this time. I think it doesn't get around the legal prohibition on mailing, which isn't the same as a prohibition on purchasing. I think, as you said, the problem there is scaling up. People can do that for a few people each, not for hundreds at a time.
What would happen if the Congress codified Roe? Would it hold up with this court?
I don't think so.
This court is pretty committed not just to getting rid of abortion, but undermining the entire basis for that right – the right to privacy.
They're not fans of the idea that the right to privacy is something that the court saw as emanating from several rights in the constitution, rather than a specific amendment to the constitution.
With that, it's easy for them to just say there's no constitutional right of privacy, period, and that gets rid of anything based on that right. I also think this court will invoke a sort of states' rights argument and say the Congress can't overrule/undermine state-level restrictions.
Can you explain to normal people what state governments can do to people in the absence of a federal right to privacy? I don't think normal people understand the breadth of what's at stake.
States have shown they don't need that right gone to radically restrict abortion. That said, I think if you dismantle the right to privacy, you dismantle an entire line of case law.
Theoretically, you could outlaw birth control, as birth control is predicated on that right to privacy. You could toss out same-sex marriage. A lot of the progress that has been made that has expanded freedom for women and LGBTQ people could be gone, and there's definitely a sector of anti-choice activists who have made very clear that's the endgame here – weird conservative religious theocracy in any state where they can get those laws passed.
But it could go further than that. Pornography would be outlawed. Certain books could be outlawed. "Sodomy." Perhaps even forms of worship. Anything done in private. Am I exaggerating?
You are not at all exaggerating.
These were outlawed before. Laws against same-sex sodomy were only struck down by the Supreme Court in 2003 – not even 20 years ago. Conservative states and conservative judges are itching to get back to a place where it would be fine to ban that sort of thing.
We're already seeing books by Black writers being suppressed under the pretext of preventing white children from feeling guilty.
Absolutely – I think it's all of a piece.
Restricting access to Black writers is all tied up in the notion that conservatives should have control over what people read, say and do – which is the real heart of the anti-choice movement too.
What do you say to people who say: Nah, it'll never happen?
I wrote a piece for Balls and Strikes where I looked at all the amicus briefs in the Mississippi abortion case at the Supreme Court right now (Dobbs v. Jackson Women's Health Organization). The architects of the Texas law (SB 8) have already put in writing that they're coming for same-sex marriage next.
I'd basically say: Look at Texas.
Look at the anti-CRT bills that are getting passed everywhere. It's coming, honestly.
The capture of institutions by conservatives is distressingly complete in a lot of states.
The court seems to be interested in another angle, which is dismantling administrative power. For instance, say the FDA were the prevail over state laws banning the abortion pill, the court is in the process of dismantling the government's ability to function.
I wrote a piece for Balls and Strikes where we called it a "slow-motion assault on modern government." There's a huge conservative appetite to dismantle the administrative state. Steve Bannon has made it a cornerstone of his rhetoric.
This would return power to the Congress, which is basically incapable of passing major legislation, which just leaves you with nothing.
No enforcement mechanisms for, say, health and safety laws. No real climate change measures. Just mob rule from a gerrymandered Congress – but a weird non-functioning mob rule that relies on nothing getting done.
OK, what can normal people do?
I admit lots of activists are more hopeful about what normal people can do than I am these days. Honestly, what I'd say is people should push to get into local roles – school boards, city councils, state government.
Those roles are so much less flashy than congressional or presidential politics, but that's where things are playing out, and if you can block the anti-CRT person from getting on the school board or stop a conservative city council from passing a law that bars abortion clinics within the city limits, you're making real change.
I guess I'd say the best thing you can do is take care of yourself and your people - think small, think protective and carve out safe spaces.