It only took until the second week of the COVID-19 pandemic for GOP state lawmakers to clamp down on reproductive rights under the pretense of the crisis. Since then, governors and healthcare officials in ten states have classified abortions as “nonessential” medical procedures unless necessary to save the life or health of the pregnant person, bucking the recommendations of professional medical associations. Officials have justified such policies as acts of preservation in the face of a virus that could overwhelm healthcare systems across the country. With states already closing down clinics and limiting the time frame for legal abortions before the pandemic—Ohio just last year passed a controversial “heartbeat bill,” an abortion ban that extends to the first trimester of many pregnancies—it is clear that these emergency measures are more about stopping abortions than they are about delaying care for public health purposes.
The coronavirus is a catalyst for a new wave of reproductive rights rollback, after years in which the political ground has slowly and steadily shifted in favor of anti-abortion sentiment and state restriction. In what may be a foreshadow of a Trump-shaped Supreme Court’s reassessment of abortion rights later this summer, the ongoing pandemic is speeding up a decades-long defeat of “choice,” “access,” and related appeals to the sanctity of individual rights.
The weaknesses of the choice-based rhetorical and judicial style of Roe v. Wade and the politics that have sustained it is now being revealed. That 1973 ruling, which gave a full-throated defense of the nascent constitutional right to privacy, was handed down during an era of budding state skepticism and bipartisan anti-regulatory impulses. The pro-choice movement’s legacy must now confront the material reality from which it emerged: the hollowed-out scarcity state. The mature neoliberal American state is defined by its staggering incapacities—just look at comparative public health readiness and response to the COVID-19 crisis—accompanied by a seemingly paradoxical heavy hand of state power. It features a shrunken and eviscerated social service landscape alongside an eager willingness to govern—at least when it comes to shutting down existing clinics and restricting life-saving care.
Critics of Roe have long decried its deferral to physicians’ judgment and its understated commitment to autonomy and gender equality more generally. Less frequently remarked upon, however, is Roe’s individualist, market-based logic, which establishes a realm of privacy between doctor and patient outside the domain of justifiable state intervention.
As legal scholar Mary Ziegler has contended, “Roe seemed to echo newfound optimism about market-based solutions. The Court’s decision emphasized improvements in abortion care and suggested that, for most of pregnancy, consumers and providers should have the freedom to make decisions without state intrusion.” This framework protected doctors and pregnant persons against the burden of state regulations, but it did not identify the range of nonstate actors and circumstances required to make the realization of that right a reality. The decision said nothing about the class-skewed availability and feasibility of attaining such reproductive care (a situation that in recent decades has grown more and more unequal). While Roe certainly had a sizable positive effect on the abortion rights movement’s immediate goals, it left a distinctly social libertarian residue on its politics whose limitations have only become clearer over time.
Perhaps more important than Roe’s ideological shortcomings, however, was its impact on abortion advocates’ political work. The mobilized forces that made up the movement quickly scaled back their efforts, ceding legislative power and democratic legitimacy for a judicial protectorate status. We should be wary of criticizing activists who sometimes had no recourse to power beyond the courts; it is hard to win democratically if you’re not popular. However, as legal scholars and Supreme Court Justice Ruth Bader Ginsburg have noted, abortion’s notoriety was at least as much a consequence of those who perceived Roe as an instance of judicial overreach as it was a reason to seek a constitutional safeguard in the first place.
In the immediate aftermath of Roe, organized conservative evangelical groups like the Southern Baptist Convention were ambivalent or agnostic on the issue of abortion. The earliest instances of backlash were relatively weak and clustered in Catholic political communities. It was only in subsequent years that political entrepreneurs on the Religious Right adopted the pro-life, anti-Roe message as a mobilizing tactic and the GOP discovered abortion’s utility as a wedge issue.
Despite the courts having been stacked by Republicans with anti-abortion judges and justices, the right to an abortion has yet to be struck out of constitutional law entirely. In fact, it was saved miraculously in the early 1990s by two Reagan-appointed justices, Anthony Kennedy and Sandra Day-O’Connor. But since the 1992 ruling in Casey v. Planned Parenthood, the Supreme Court’s reasoning has moved further away from autonomy of the pregnant person and toward the health and safety of the mother. It has also gradually shifted focus to fetal life (a considerable but more downplayed factor in the original Roe rationale). Liberal judges, justices, and legal scholars have levied criticism after criticism upon the existing framework, encouraging litigators, activists, and others to recenter an older, pre-Roe tradition of autonomy and equality that has been displaced by a focus on health and viability. Still, choice and privacy rhetoric has persisted among advocates in the public sphere, covering up the eroding, enervated jurisprudence concerning reproductive rights.
The right to privacy itself has recently been repurposed by social conservatives. In municipal and state ballot referenda campaigns and in state and federal litigation, well-funded Christian conservative groups like the Alliance Defending Freedom (the firm that litigated Masterpiece Cakeshop, which made the case for anti-LGBTQ+ discrimination on religious liberty grounds) and the Family Research Council have pitted cis women against trans women by arguing that inclusive policies for restrooms and related facilities constitute a direct assault on the safety and dignity of women as guaranteed by civil rights laws like Title IX as well as the constitutional right to privacy. Though the Supreme Court has yet to take one of these challenges up, the threat of right-wing juristocracy threatens to transform privacy from the limited utility of its libertarian form to a noxious social conservative one.
The weaknesses of Roe, Casey, and subsequent case law; the liberal abandonment of a democratic legislative strategy; and the conservative appropriation of arguments for women’s safety and privacy—all these developments demonstrate how ill-equipped liberal advocates are to combat rights restrictions on an increasingly hostile terrain.
Decades of neoliberal policymaking have eroded and sometimes eliminated state-administered welfare programs. Programs that were not destroyed often took on new forms, like public-private partnerships that lease out state functions to a web of nonprofit and religious institutions. In the years since Roe, healthcare social services have taken huge hits, and the institutions that provide everything from contraceptives to abortions have come increasingly under attack. In 2019, after several years of threats to its funding, Planned Parenthood rejected Title X funding after the Trump administration barred organizations that accepted grants from providing abortion referrals. The public-private partnership model for reproductive health, already incapable of fully providing much-needed healthcare, is on the path to being regulated out of existence. Meanwhile, since 1976, the Hyde Amendment (which neoliberal architect Jimmy Carter gave his blessing) has prohibited states from spending federal Medicaid dollars on abortion services. Just a few years ago, some states actually used federal block grants to fund unlicensed anti-abortion crisis pregnancy centers that masquerade as legitimate clinical facilities.
The legal assault on abortion now takes the form of attacks on the institutions of reproductive care, sidestepping much more unpopular proposals like re-criminalizing abortion and jailing persons who seek and offer them. In its current term, the Supreme Court will make a ruling in June Medical Services v. Russo, a case that involves a Louisiana law requiring that physicians performing abortions retain admitting privileges at a nearby hospital (a deterrent disguised as a neutral regulation). As liberals worry about losing Roe, pro-life forces have moved the fight to the clinics. As Ziegler has pointed out, this allows opponents of abortion to satisfy the Casey precedent’s concern with preserving fetal life while still claiming concern for the safety and well-being of the pregnant person. This pivot to an argument about women’s equality and care has made even the most well-articulated and idealist rescue attempts of Roe unlikely to save it now. Intra-progressive debates sound antiquated when surveying the devastated scene of available clinical care and disappearing budget lines.
The severity of the crisis thus stems from two intertwining forces: the mobilized social conservative opposition to abortion and a bipartisan propensity to further attenuate the welfare state while bolstering the strength of consolidated corporate power. As social institutions—both civic and welfare—are degenerated and disappear, what is left in their wake is an intensification of anxiety and insecurity. Under these conditions, a pro-choice politics absent material demands appears not just inadequate but bound to fail. It falls prey to the very market logic that makes its realization an impossibility.
From the current vantage, the future of abortion in the United States looks bleak. As federal courts tussle over pandemic restrictions, time is already running out for those seeking abortions. Thankfully, invigorated calls for universal healthcare—with a reproductive rights twist—have moved to the fore of progressive politics due to the work of Senator Bernie Sanders and his two campaigns for the Democratic Party’s presidential nomination. For years now, California Representative Barbara Lee and others have introduced the EACH Woman Act, which would repeal the Hyde Amendment and shore up federal funding for abortion. Sanders’s Medicare for All proposal in the Senate and its sister bill in the House tie this repeal into their vision for a single-payer healthcare system.
By virtue of its scope, the reproductive rights–inclusive Medicare for All plan would address the limitations inherent in the dominant pro-choice legal and political approaches to care. It would do so through a vigorous demand to decommodify healthcare in a country plagued by parasitic health insurance companies and for-profit hospital chains. Though leading organizations in the pro-choice movement like NOW and Planned Parenthood have yet to sign on, there is hope that we might get there. Advocates might take heart in the fact that a majority of Democratic Party primary voters (in addition to a sizable number of GOP voters) now support a universal healthcare program and the elimination of private health insurance market. A long-lasting victory of this scale will require popular support and labor-backed organizations to achieve it, something that nonprofits and civil rights litigation firms are unlikely to manage on their own.
An organized movement for public goods like single-payer healthcare would begin to roll back the neoliberal authoritarian tide at least enough to start cleaning up the debris from the damage it has wreaked on the social service landscape and the ability of all people—independent of income, geography, or class position—to attain an abortion. In doing so, it would at long last give the “right to choose” material, institutional force.
Joanna Wuest is the Fund for Reunion–Cotsen Postdoctoral Fellow in LGBT Studies in the Society of Fellows and a lecturer in Politics and the Program in Gender and Sexuality Studies at Princeton University. She is currently writing a book titled Born This Way: Science, Citizenship, and Inequality in the American LGBTQ Movement.