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Reproductive rights defenders march during the Rally for Abortion Justice in Washington, D.C. on October 2, 2021. (Photo: Kisha Bari/Women's March/Twitter)

This Leaked Decision Shows Why Roe Was Never Enough

Abortion rights and women's rights are directly tied to the health of U.S. democracy. Both are in free fall—and have been for some time. Where do we go from here?

This first appeared in Ms. magazine.

Late Monday night, a leaked version of the draft of the major­ity decision in Dobbs v. Jack­son Women's Health Organ­iz­a­tion was made public. We now know that the Supreme Court will over­rule the long­stand­ing preced­ents of Roe v. Wade and Planned Parent­hood v. Casey. When the final decision is issued, there will no longer be a feder­ally guar­an­teed right to abor­tion in Amer­ica for the first time in nearly 50 years.

"If we thought about this from a more holistic bodily autonomy perspect­ive, how differ­ent this conver­sa­tion would be—and how much more deeply we'd connect that to the conver­sa­tion of demo­cracy."

Among the ways Ms. has been report­ing on this over the Court's term, we partnered with the Bren­nan Center for Justice at NYU Law last fall to create Abor­tion Is Essen­tial to Demo­cracy, a series of essays that reflect on the myriad demo­cratic dysfunc­tions that have helped erode abor­tion rights in Amer­ica. As Jezebel repor­ted about it: "A think tank that focuses on voting rights, money in polit­ics and the crim­inal justice system is for the first time high­light­ing how attacks on demo­cracy have led to the biggest threat to abor­tion access since the Roe v. Wade decision almost 50 years ago." A NowThis op-doc video accom­pan­ied the essays.

On April 20, we followed up with an in-person discus­sion co-hosted by Ms. and the Bren­nan Center, along with NYU Law's Birn­baum Women's Lead­er­ship Network. It was held at NPR's studio in New York City; you can watch the full record­ing here or at the end of this piece.

Some high­lights of those remarks:

Professor Melissa Murray on demo­cracy and the rule of law

"And then when the Court decides in June to over­rule Roe v. Wade, whether expli­citly by saying the words, or impli­citly by simply uphold­ing another patently uncon­sti­tu­tional abor­tion law in Missis­sippi, we are going to see the impact of not only gerry­man­der­ing, but voter suppres­sion, because the Court will have essen­tially through its rulings, blessed laws that suppress the vote.

"One of the things that we need to take from this moment is that this isn't just about abor­tion and it's not going to end with abor­tion. But if we are going to register any kind of objec­tions, we need a func­tion­ing, healthy demo­cracy. And that's the first thing that they have disrup­ted."

Chan­cel­lor's Professor Michele Good­win on mind­ing the big picture—and who gets left behind

"Roe was not a north star in and of itself. And it is not mutu­ally exclus­ive to talk about the import­ance of Roe, without also talk­ing about who's left behind. It's like think­ing about the 19th Amend­ment and voting right­s—­Fan­nie Lou Hamer and Black people being beaten up on a bridge saying we want the right to vote. If Black people will still have to be pummeled, people murdered to attain this voting right, then for some it's more illus­ory than real. So, we can hold both. We have to—and at the same time.

"So what does this history look like? Because I think if we don't say it enough, then it just kind of flies over the head that this has been a long arc towards justice. And not just a matter of the last few years of the rug of repro­duct­ive rights, health, and justice being pulled out."

Sister­Song's Monica Simpson on voting rights and the lead­er­ship of communit­ies of color

"Sister­Song works with communit­ies of color every single day to say that we have to think about abor­tion as an inter­sec­tional issue. And now we're right back in this moment where we have yet another Supreme Court decision coming down over our heads.

"Taking us back to Missis­sippi in 2012, there was a voter ID bill before the state legis­lature, as well as a person­hood bill. [It was] women of color, repro­duct­ive justice organ­iz­a­tions, groups on the ground in Missis­sippi saying if don't address these issues at the same time, we're going to set ourselves up for disaster. And for all the money, the resources, the energy that went into defeat­ing person­hood—we got that victory, but look what happened to voting rights. That voter ID bill did not work in our favor. And so, when we look at where we are in now, it's because of these decisions that were before us at that time. And that continue to be before us in so many of our differ­ent states—in partic­u­lar, in the South where the lead­er­ship and the expert­ise and the know­ledge of our communit­ies of folks of color gets over­looked."

Center for Repro­duct­ive Rights' Lourdes Rivera on global progress and domestic regres­sion

"When Roe v. Wade was initially decided it had this ripple effect in other parts of the world. But now the rest of the world is surpass­ing us. We are seeing since 1994, since the Cairo confer­ence, 60 coun­tries have liber­al­ized their abor­tion laws.

"So that's been the global trend, to liber­al­ize abor­tion laws. Yet since Roe, here in the U.S., the direc­tion has been to block access to abor­tion—first with the Hyde Amend­ment saying that poor women could not use Medi­caid bene­fits to cover access to abor­tion. And then states layer on restric­tions, making it really diffi­cult to access.

"We see other author­it­arian govern­ments doing the same thing. Being very anti-demo­crat­ic—at­tack­ing civic parti­cip­a­tion, LGBTQ rights, abor­tion rights, and women's right­s—be­cause it's an ideo­logy of inequal­ity and it's an ideo­logy of impos­ing tradi­tional hier­arch­ies."

Melissa Murray on inter­sec­tional argu­ments

"Roe was not the only path to repro­duct­ive rights that was avail­able to the Court.

"At the time Roe was being litig­ated, there were a number of other chal­lenges to abor­tion laws and other laws that impinged on repro­duct­ive free­dom through­out the coun­try. There was a chal­lenge to New York's abor­tion law led by femin­ist lawyers, includ­ing Florence Kennedy, who served as a bridge between the femin­ist move­ment and the Black power move­ment. And they were making inter­sec­tional claims. They argued that access to abor­tion not only implic­ated privacy, but also implic­ated sex discrim­in­a­tion claims, gender equal­ity, class equal­ity. They were think­ing about this broadly. They talked about compelled preg­nancy as cruel and unusual punish­ment. It was a much richer and more robust set of claims that they were making, broader than privacy."

Michele Good­win on 'Canar­ies in the Coal Mine'

"This has been a mara­thon, not a sprint. There have been canar­ies in the coal mine—­Black and brown women who for a very long time have been ringing the bell and saying, 'This is coming. This is coming because this has been happen­ing to us."'And it's unfor­tu­nately been to the neglect of those voices that we find ourselves today with folks saying, 'Well, we now feel the fire, ' when in fact Black women were already in the flames in the 1980s and '90s."

Monica Simpson on repro­duct­ive justice and demo­cracy

"When we only think about having the right to some­thing, but not having access, then do we really have that right? And that's what we see with Roe. We still have some states that only have one abor­tion clinic, like Missis­sippi, like Kentucky. Are we think­ing about the fact that there's a pay gap, low wages, folks not even getting what they need? So economic justice is an issue. Mater­nal mortal­ity is an issue.

"And so we must think beyond Roe, about how we want to create the repro­duct­ive justice neces­sary for folks to be able to live their lives—­most who are already living in a post-Roe world.

"Abor­tion is just one piece of our repro­duct­ive decision making and lives. I am think­ing about our abil­ity to have the chil­dren that we want and the ways that we want to prevent our preg­nan­cies, without shame and with dignity, to be able to parent those chil­dren that we have in healthy and safe envir­on­ments. If we thought about this from a more holistic bodily autonomy perspect­ive, how differ­ent this conver­sa­tion would be—and how much more deeply we'd connect that to the conver­sa­tion of demo­cracy."

Lourdes Rivera on legal and soci­etal change

"We don't live single-issue lives—and so we can't have single strategies. Culture change matters, yes, because this is about the future we want to imagine. That vision then gets trans­lated into law and policy down the road. I do want to really caution us about saying, 'Okay, you know, Roe is over so let's throw up our hands.' Courts of law are import­ant insti­tu­tions and pillars of demo­cracy. We can't just walk away from that."

Watch the full conver­sa­tion about why abor­tion is essen­tial to demo­cracy—and demo­cracy is essen­tial for repro­duct­ive justice:

© 2021 Brennan Center for Justice

Jennifer Weiss-Wolf

Jennifer Weiss-Wolf is the inaugural Women and Democracy Fellow at the Brennan Center for Justice.

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