• Martha Schoolman

Assault on Abortion Rights: The Current Situation



Overview


Justice Samuel Alito’s draft majority opinion in Dobbs v. Jackson Women’s Health indicates that Roe v. Wade is on the verge of being overturned, thereby ending federal abortion rights protections and devolving decisions about abortion rights to the states.


With a right wing Supreme Court, an increasingly right wing state judiciary, and a far right governor and legislature, Florida is in a particularly dire position. At the governor’s behest, the state legislature has passed a severely gerrymandered legislative map (which may or may not stand judicial scrutiny). The state Democratic Party is so weak and bumbling as to lead one to suspect that it is run by actual Republicans. And yet there are few effective options for reversing this slide toward an outright ban on abortion outside of electoral politics.


Now is the time to galvanize local, grassroots support for pro-abortion rights candidates like never before, and to push anti-abortion rights candidates and officeholders to expose their extremism for the record at every public appearance.


Historically Florida has not been especially conservative where abortion rights are concerned, so we have a great deal to lose in the combination of a far right state government and a likely Roe repeal.


How dire is it?


An increasingly far right and Evangelical Christian-led Republican Party has become very comfortable pushing an explicitly retrograde and patriarchal view of the family through the secular legal system.


While many non-evangelical, non-Catholic religious denominations support abortion rights—including Conservative and Reform Jews, Muslims, Buddhists, Presbyterians, and Unitarians, among others— the religious right has been pushing a radical anti-abortion program since the passage of Roe v. Wade in 1973. These are patient and often violent and self-sacrificial zealots, who have been using direct action—protests at abortion clinics and murder of abortion providers—as well institutional means such as the law (including law schools, state and federal legislatures, and the judiciary) to erode and ultimately abolish abortion rights.


Indeed, even before the news of Alito’s draft overturning Roe, abortion rights were already significantly restricted at the state and federal levels. Although it is not often mentioned in the current context, there is already a Federal abortion ban in place, the so called “partial-birth abortion ban” passed by Congress in 2003 and upheld by the Supreme Court in 2007, which applies to some later-term (post-20 week) abortion procedures.


Individual states including Florida have passed laws making it onerous in the extreme to offer abortion services, and have passed blanket post-20-week abortion bans, which are getting rolled back to post-15-week abortion bans (including in FL, and in the Mississippi case currently before the Supreme Court), to post-6-week bans (Texas and Oklahoma so far), to the outright bans promised by the 13 states with “trigger laws” in place banning abortion as soon as Roe falls.


With the likely end of Roe, far right legislators are already pushing laws reaching farther and farther back into the reproductive process, to morning-after pills, to IUDs, to IVF and other fertility treatments. (See for example, a proposed Louisiana Law that would abolish abortion beginning with “fertilization.”)


The Democratic Party has historically accepted candidates and office holders who hold religious anti-abortion views. Both those who vote their dogma, like Senators Joe Manchin (WV) and Bob Casey (PA), Reps. Henry Cuellar (TX) and Dan Lipinski (IL), Louisiana Governor John Bel Edwards, and, at times, former President Jimmy Carter, and those who claim to be personally anti-abortion but vote consistently for abortion rights like Senator Tim Kaine (VA). Kaine’s position sounds slippery to be sure, but, given the alternatives, it seems to be the honorable course to distinguish between Catholic Church teachings and the laws he chooses to make for the world outside his own church.

Unlike the Democratic Party, however, conservative Catholics and Evangelicals are strongly disinclined to humble themselves before the sheer diversity of views about the moral and political stakes of abortion.


Such modesty can only be found among the increasingly rare pro-abortion rights Republicans, like Senators Susan Collins (ME) and Lisa Murkowski (AK), who are such consistent compromisers that their principles don’t end up counting for much. When Roe seemed more secure in 2006, both senators voted to confirm Justice Samuel Alito. Both likewise supported Gorsuch in 2017. When the rest of the world started to see the writing on the wall with the Kavanaugh nomination, Collins voted in favor and Murkowski voted “present.” Collins opposed the anti-abortion Amy Coney Barrett, but Murkowski supported her.


Both senators (along with Manchin) voted against the Democratic Women’s Health Protection Act on May 11. Collins and Murkowski have offered instead a series of amendments and counter-proposals that protect the “religious liberty” of anti-abortion health providers and would appear to poised to include additional limits on abortions past the first trimester of pregnancy.


Predictably, the only “religious liberty” given serious legal consideration here is the liberty to impose abortion bans on people of divergent faiths, on the non-religious, and dissenters within these conservative judges’ and legislators’ own churches. The right to an abortion does not after all imply the obligation to seek one against one’s own religious beliefs, but an abortion ban applies to everyone.


As such, we have now come to the point where freedom of conscience itself is at stake along with the bodily autonomy of the majority of Americans. The ambivalent, indecisive, Democrats who have let this shit go on way too long, now have to be the ones to defend it.


The Situation in Florida


Florida is in the grips of an authoritarian governor backed by a pliant legislature. They are working together to drag the law to the far right, well in excess of public opinion and public good on any number of topics. Their concerted assault on LGBTQ children and families, diverse schools and workplaces, minority voting rights generally and Black representation very specifically, have drawn the national notoriety they deserve. But these laws all go into effect July 1 regardless, and Governor DeSantis has already demonstrated his willingness to call special sessions to push his agenda farther to the right.


Unlike the US Constitution, the Florida Constitution does include an enumerated “Right to Privacy” which has in the past been used to secure abortion rights. But this general right is already subject to a long list of exceptions and regulations by Florida statute, leading Planned Parenthood to categorize Florida’s current abortion access conditions as already “severely restricted.” Moreover, there is no guarantee that the increasingly conservative Florida judiciary, backed by a conservative US Supreme Court, will stand between DeSantis’s desire to be the great American reactionary and a full ban when Roe falls.


Indeed, the 2022 Florida legislative session passed a 15-week abortion ban that goes into effect July 1. This represents a significant change to the existing state standard, which, even with all its unjust obstacles, does essentially, like Roe itself, permit abortions up to 24 weeks, and thereafter when the life of the pregnant person is determined to be in danger.


The choice to pass a 15-week ban also shows the Florida legislature’s inclination to race conservative southern states to the right on so-called culture war issues, a tendency that should concern not only people able to become pregnant, but also transgender children and their families who have been particularly victimized by repressive legislative rampages in Alabama, Texas and elsewhere.

Recall that the Mississippi case upon which Alito’s draft opines, Dobbs v. Jackson Women’s Health, itself concerns a 15-week abortion ban, and the new Florida law was intended as a prospective alignment with that proposed ban should it be determined to be Constitutional. Given the extremism of the Alito draft, it is only reasonable to assume that DeSantis and the Florida legislature will be falling all over themselves to roll back the state-level regulations even further. Indeed, bloggers Michael Froomkin and Florida Bulldog both speculate that the Florida courts are actively preparing for that eventuality.