Where Was Everyone? The Fatal Siloing of Abortion Advocacy
Where Was Everyone? The Fatal Siloing of Abortion Advocacy
The movement for abortion rights has made missteps. But abortion-rights advocates wouldn’t have had such a lonely battle with such imperfect choices had anyone else inserted themselves into the fray.
I briefly dated a man who told me that he thought abortion should be legal but “didn’t think it should be used as birth control” and later, with no sense of irony, argued with me and then became so angry that I was frightened when I insisted that we use a condom. I bring this up for a couple of reasons. First, public writing about abortion is usually either personal and confessional or, more often, legalistic, political, and abstracted from what abortion is really about—people’s bodies, the most private aspects of their lives, and the bargains, dilemmas, and battles, small and large, that cisgender women face as a matter of course. Second, abortion is usually framed as a women’s issue, and it does, of course, foremost affect women. But straight men of my generation have also built their lives—lives often defined by enormous freedoms—on access to contraception and abortion.
Those of us who came of age after Roe v. Wade have rarely had to reflect on how legal abortion has shaped our most basic assumptions about our lives. If you’ve grown up in a country with legal abortion, and particularly if you’re a straight man, I ask that you pause and imagine what your private life would have been like if you had faced the real possibility of creating a pregnancy that couldn’t be terminated every time you had sex. Consider everything that makes up your life—degrees or jobs, yes, but also your friendships, marriages, turns in the road, children born because they were wanted, whatever you value—and appreciate how much of it was made possible by living in a society where abortion was legal and often presumed accessible.
The right to have an abortion is in peril. This spring, the Supreme Court will hand down its decision in Dobbs v. Jackson, the most pivotal abortion case in fifty years. Under consideration is Mississippi’s ban on abortions after fifteen weeks, which the state legislature passed in 2018. According to the central holding of Roe, all pre-viability bans are unconstitutional, which includes a fifteen-week ban. The only remaining abortion clinic in Mississippi, Jackson Women’s Health, sued the state, asking courts to block the law. A district court and then the U.S. Court of Appeals for the Fifth Circuit (which is infamously conservative) sided with the clinic. The state appealed, and the Supreme Court agreed to hear arguments. Dobbs should be an open-and-shut case, and before 2020 it would have been. The only way for the Court to allow Mississippi its fifteen-week ban is to defy decades of precedent and gut the core of Roe.
The mere fact that the Supreme Court decided to hear Dobbs is an ominous sign. Usually, the Court will take up a case when the lower federal courts disagree over whether a law is constitutional. In this case, the federal courts agree; they have consistently squashed total pre-viability bans because fifty years of precedent clearly prohibits them. For decades, the Court hasn’t bothered to take up abortion cases that obviously defy Roe. What has changed is the political makeup of the Court, particularly following Trump’s appointment of Amy Coney Barrett. Her nomination, like those of Neil Gorsuch and Brett Kavanaugh before her, was not an accident of history. The Trump administration was able to remake the judiciary for at least a generation, installing an unprecedented number of federal judges and three Supreme Court justices, because leaders of the conservative movement have spent forty years and millions of dollars to incubate a legal establishment that would shrink the power of the federal government, give more leeway to states and corporations, and prioritize conservative social views and textual interpretations of the Constitution. One powerful group, the Federalist Society, which has moved legal scholarship to the right by building a pipeline of conservative lawyers and vetting federal judges specifically for their anti-abortion bona fides, can claim all six conservative justices on the Supreme Court as current or past members.
Meanwhile, in states across the country, women have had to delay procedures while they cobble together a few hundred dollars because the Hyde Amendment prevents Medicaid from covering abortion, a stipulation that, until this year, leading Democrats publicly accepted as a reasonable compromise for the existence of legal abortion. Roughly half of women who have abortions live below the federal poverty line. It is often these women, waiting to scrape together funds, who end up needing to have an abortion after fifteen weeks. It is these women who will be most affected if—or, most likely, when—the Court upholds Mississippi’s law and thereby gives other states permission to enact their own abortion bans.
When Roe falls, there will be a public outcry. And yet the conservative movement has so successfully locked down structural power at nearly every level of government that even the most fervent activism around abortion rights will hit a hard ceiling, at least in the short term. The states are gerrymandered, the courts are stacked, and by 2040, 70 percent of Americans will be represented by just thirty senators. When states and Congress push future abortion bans, voters will have little recourse, and the odds that courts will intervene is dwindling. It took numerous forms of failure to deliver this moment, including miscalculations by mainstream abortion-rights advocates, but especially damaging were equivocations from the Democratic Party; deference to misogyny by media outlets and union, civic, and business leaders; and apathy from an American public that has counted on abortion access but has left its protection to a small cohort of medical providers and advocates, many of whom have made extraordinary sacrifices to keep clinics open. For forty years, few if any institutions or political groups beyond those explicitly dedicated to abortion rights have even tried to push back against increasingly extreme anti-abortion messages and legislation. If that pattern holds and reproductive justice remains the cause of only a fierce but relatively small network of activists, we may soon live in a nation where fetuses have personhood rights.
During the Dobbs oral arguments, Coney Barrett suggested that being forced to carry a pregnancy to term and drop off the baby at a safe haven is a reasonable alternative to a routine procedure that in states like Mississippi, which has one of the highest maternal death rates in the country, is significantly safer than childbirth. To understand how we got here, we have to go back to the early 1990s. Roe is common shorthand for the right to an abortion, and many people assume the ruling still unequivocally upholds abortion rights. In reality, Roe was hollowed out in 1992, in a landmark case whose significance was lost on most of the American public because it hinged on legal minutia.
In Planned Parenthood v. Casey, the Supreme Court allowed what were then envelope-pushing restrictions to stand in Pennsylvania, and in doing so it gave states much more leeway to restrict abortion. Casey was pivotal because the Supreme Court changed the standard by which courts would evaluate abortion laws. Whereas Roe allowed pre-viability abortions outright, Casey tasked judges with deciding whether a state law created an “undue burden” for women seeking pre-viability abortions. If a court decided that a law did create an undue burden, the law was unconstitutional. Legal scholars and advocates saw that Casey was subjective and, therefore, slippery and dangerous for abortion rights, but the ruling also retained the core of Roe.
The post-Casey years were a major turning point for the anti-abortion movement, and a missed opportunity for supporters of abortion rights. Following the ruling, the anti-abortion movement pushed novel restrictions through state legislatures, aiming to give Roe a death by a thousand cuts. There was a flurry of state bills specifically designed to seem too arcane, boring, or insignificant to rouse public opposition. Meanwhile, major abortion-rights organizations such as Planned Parenthood and NARAL, much like the Democratic Party and left-leaning interest groups, divested from state-level organizing, electoral work, and lobbying and instead threw most of their weight behind national elections and litigation. For several years, it seemed as though federal protections would safeguard abortion rights, regardless of how zealously activists picketed clinics, threatened and committed acts of violence, and pushed incremental bills through statehouses. That, however, was a major miscalculation.
On the national stage, anti-abortion politicians and activists proactively framed the conversation, inventing terms like “partial-birth abortion,” which described a rarely used dilation-and-extraction procedure, to make abortion seem gory and extreme and put abortion-rights supporters in a defensive crouch. Behind the scenes, Republican strategists were increasingly focused on flipping state legislatures, which they recognized as major seats of structural power. Those forward-thinking strategists saw that state governments have wide control over culture-war issues like abortion and over various areas of interest to Republican donors such as taxes, energy, and the levers of democracy, including redistricting and election policy. After the Casey decision permitted states to restrict abortion, anti-abortion politicking became a surefire way for Republican candidates to motivate their base to show up for elections. Republicans swept state elections in 2010, and increasingly bold anti-abortion restrictions rolled through statehouses at an unprecedented pace. Clinics began to close, particularly in the South and Midwest. According to the Guttmacher Institute, in 1996 there were 452 abortion clinics in the United States. By 2014, there were 272, and that number has almost certainly dropped since. Six states have only one abortion clinic. Poor women have never had equal access to reproductive healthcare, but in the past decade it has become very difficult, if not functionally impossible, for poor and working-class women to access abortion care in large portions of the country.
While abortion rights were being hammered at the state level and the national conversation was becoming ever more vitriolic, where was everyone? For fifty years, women have been relying on reproductive healthcare and rights to participate in the workforce and support themselves and their families. One in four American women will have an abortion during her lifetime. According to a recent study by the New York Times, the typical patient seeking an abortion is already a mother, in her late twenties, and has completed some college. The prevalence of abortion means there isn’t a major business in the entire country that does not profit from the labor, talent, and spending of women who have had abortions. Every union and professional association has members who have relied on abortion care. Every university has students and faculty who have delayed or foregone parenthood to complete their education. Every one of us, whether or not we know it, has benefited from the work, care, and wisdom of people who have had abortions. And yet, despite these facts, nearly everyone has treated abortion rights as a siloed issue.
There are plenty of institutions and organizations to harangue over how Americans are losing the ability to terminate their pregnancies. In the post-Casey years, much of the Democratic base was culturally conservative. The Democratic Party failed to stir emotions around its platform in a way that matched the intensity of the Republicans’ culture wars. Meanwhile, in many states, unions rarely if ever affiliated themselves with abortion-rights advocates. Democratic candidates and party leaders often saw a conflict—real or perceived—between their short-term goal of winning elections and the long-term goal of creating a culture that is less misogynistic and rife with abortion stigma. Leaders within the Democratic Party tried to avoid the word “abortion” for years, following Bill Clinton’s slogan that it should be “safe, legal, and rare.”
Mainstream abortion-rights organizations made numerous mistakes that are clear in hindsight, including defining abortion rights around “choice,” a notion that is the product of the white, middle-class imagination and hardly fits many people’s experience of obtaining an abortion. To many white feminists, “choice” was an endorsement of women’s professional advancement, but that messaging obscures the reality: that most people have only constrained agency over their bodies and the circumstances of their lives. When your job pays minimum wage and offers no benefits and you already have two children, or when your parents will disown you if they find out you’re pregnant, or when your boyfriend hits you, the decision to have an abortion is less about choice than it is about survival. And when mainstream white feminists linked their calls for abortion rights to aspirations for professional opportunity, they inadvertently widened the class rift within the Democratic Party. Black feminists developed their own framework, the reproductive-justice model, which defines itself as a movement to ensure the human right to bodily autonomy and to parent or not parent in a safe and sustainable community. Today, across the country, the reproductive-justice activists are the ones making things happen, but for years they’ve been under-resourced, especially compared to the name-brand abortion-rights groups. Groups like Planned Parenthood fell into many of the same pitfalls as the Democratic establishment, failing to build local organizations or to foster cultural change.
Yes, the movement for abortion rights—which was never really a movement but, rather, a collection of interest groups—did make missteps. The central betrayal of women, though, was not by those organizations specifically devoted to reproductive rights. It was by everyone else. Abortion-rights advocates wouldn’t have had such a lonely battle with such imperfect choices had anyone else inserted themselves into the fray.
It wouldn’t have been so impossible for activists to push against abortion stigma had the subject been handled better by major media outlets, which tended to relegate abortion to women’s magazines or cover it as fodder for the horse race. National media covered high-profile court cases after legislation had already passed and it was too late for the public to weigh in. And, when the anti-abortion movement made the patently false claims that abortion causes debilitating regret and depression, infertility, and other complications, many news outlets fell back on false equivalencies and failed to distinguish between anti-abortion activists’ moral objections and their disinformation. In one consequential disaster in the summer of 2015, the New York Times published what it presented as undercover footage of a Planned Parenthood staffer chatting over wine about selling fetal remains. Later, it turned out that the videos were doctored, the creation of David Daleiden, a long-time anti-abortion activist. The state of California later charged Daleidan with fifteen felonies for alleged crimes committed in conjunction with the videos. Once the false idea that abortion providers were “trafficking dead babies” was out there, however, Congress and fifteen states opened investigations into Planned Parenthood, and headlines and campaign ads repeating the myth ran throughout the 2016 election season.
At the same time, leaders across many kinds of institutions failed to acknowledge publicly, openly, and without defensiveness or shame that abortion rights are a necessary condition to women’s participation in civic life. In the landmark 2015 gay marriage case Obergefell v. Hodges, hundreds of businesses, including Goldman Sachs, Wells Fargo, Facebook, and Google, filed amicus briefs urging the Supreme Court to legalize same-sex marriage. The next year, in a major 2016 Supreme Court case over Texas abortion regulations, it was left to reproductive-rights interest groups, health associations, and individual women lawyers to plead for the importance of abortion rights.
I am not suggesting that big businesses are the ideal agents of social change—quite the opposite. Instead, I want to underscore that it’s emblematic of how our broader culture devalues women that corporations have almost never put their weight on the scale for abortion rights. Last year, after Texas passed its six-week abortion ban, fifty companies including Yelp, Lyft, and Ben & Jerry’s signed an open letter opposing the law. That was much too little, much too late. Meanwhile, corporations compensate their lowest-paid workers so insufficiently that financial stress—including not having healthcare or stable housing—is a major factor for some people deciding whether or not to continue a pregnancy. At the same time, corporations staffed by educated professionals run on the expertise of people who have delayed or forgone parenthood or limited their number of children in order to finish college and work those jobs. Businesses directly benefit from women limiting their fertility, and yet for decades they have done almost nothing to advocate for reproductive healthcare, as if our collective ability to participate in civic life is an individual concern. The idea that women must shoulder their fertility as an individual problem is so pervasive that it’s the water we’re swimming in, and we can barely see it.
We can’t go on this way. Yes, the conservative movement pushed anti-abortion ideology and laws. They wouldn’t have won, though, had anyone beyond a relatively small number of activists considered protecting reproductive rights their problem. For decades, committed volunteers have organized abortion funds that raise money to help people cover the costs of their procedures—which, increasingly, includes the expense of travel to faraway providers. In the absence of a realistic pathway to expanding national abortion rights, bolstering those abortion funds is an urgent last resort. Since Texas’s six-week ban has forced people to travel out of state, requests for help have skyrocketed. After Dobbs is decided, it’s all but guaranteed that thousands more people will need assistance to get to abortion providers. Activists are poised to help, but they’re already unable to meet all the existing need. If abortion becomes illegal in wide regions of the country—as it probably will—and if the majority of Americans who support legal abortion continue to take for granted the myriad ways reproductive freedom has provided an invisible bedrock for our society, we’re going to repeat the failures of the past forty years. In post-Roe America, the struggle for reproductive justice cannot be someone else’s problem.
Meaghan Winter is a magazine writer who has covered abortion for many outlets and the author of All Politics is Local: Why Progressives Must Fight for the States.
Correction: an earlier version of this article stated that the Supreme Court case Obergefell v. Hodges hinged on taxes. While the companies’ amicus briefs mentioned taxes, their main focus was on other economic costs of marriage discrimination.