This Thursday, Louisiana state lawmakers are scheduled to discuss on the House floor a bill, HB 813, that would enshrine personhood rights “from the moment of fertilization” and criminalize abortion. Just a few years ago, even in states where Republicans have gerrymandered themselves ironclad majorities, when fanatical lawmakers proposed similar personhood bills Republican leadership usually scuttled them and instead prioritized incremental antiabortion legislation that wasn’t so blatantly unconstitutional. For roughly the past forty years, the central strategy of the antiabortion movement has been to chip away at the right to abortion with arcane-seeming state laws such as regulations over the size of clinic hallways or providers’ hospital admitting privileges. After Republicans swept state legislatures in 2010, many states enshrined similar laws that made it difficult if not impossible to keep clinics open, especially in the South and Midwest. Widespread clinic closures followed and antiabortion rhetoric on the ground rose to a fever pitch across the country. But only a relatively small cohort of committed advocates kept paying close attention, and their alarms went mostly unacknowledged.
Now the guardrails have been blasted off. The first looming question is how much of Justice Alito’s Dobbs v. Jackson Women’s Health Organization draft will be the final opinion. Then, in short order, we will see which states will criminalize abortion on par with homicide; how abortion funds will meet the escalating needs of people traveling across state lines; and when, not if, Republicans in Congress will try to pass a nationwide abortion ban. And we will see whether those of us who disapprove of minority rule can wrest the levers of democracy back from increasingly authoritarian lawmakers. Polling consistently shows that the majority of Americans do not want to see Roe overturned. How, then, have we arrived at this moment?
For the past forty years, the Republican Party, the Federalist Society, and allied conservative groups have spent millions of dollars grooming and vetting judges specifically chosen to overturn Roe. Conservative strategists have taken decisive action in pursuit of their goals, as strong protagonists do. The architects of the antiabortion movement came up with a proactive long-term strategy: no matter how many bills died in obscure committees or were thrown out in court, they kept inventing and testing novel ways to undermine the right to abortion. Conservative donors, meanwhile, invested in all kinds of antiabortion work, from conservative think tanks to political action committees to local activist chapters, and antiabortion leaders followed their radical imaginations to frame the conversation, coming up with terms like “partial-birth abortion” and “heartbeat bills.”
This campaign has proceeded apace with Republicans’ consolidation of structural power via the states. Ahead of 2010, an important redistricting year, Republican strategists executed a plan to funnel corporate donations into state legislative races and successfully flipped statehouse chambers nationwide so that their lawmakers could push their agenda—including antiabortion bills—while gerrymandering districts to lock in their advantage. In 2020, another pivotal redistricting year, even as Biden won the presidency, Democrats failed to flip a single chamber, so that lawmakers in at least twenty-six states are poised to ban if not criminalize abortion.
It’s more difficult to tell the story of everything that went wrong for abortion rights, because much of that story is defined by absences, apathy, equivocations, and milquetoast rebuttals. Clinic directors and activists, especially in red states, have demonstrated unflinching determination, including risking their personal safety and putting up with relentless harassment and restrictions. And yet they’ve received scant support from most Democratic leadership, media outlets, businesses and associations, unions, and civic institutions, all of which spent decades abdicating responsibility for Americans’ access to reproductive healthcare, despite the fact that it’s fundamental to our lives.
Democrats have been defeatist about abortion for decades. In the 1990s, following Bill Clinton’s lead, Democratic leadership decided not to say “abortion” when campaigning because they thought they’d alienate many voters. Neither the Democratic Party nor abortion rights interest groups adequately funded state-level organizing, lobbying, or electoral work, even after the 1992 Supreme Court decision in Planned Parenthood v. Casey eroded Roe by giving states much more leeway to restrict abortion, setting the stage for the hundreds of restrictions states have passed in the last decade. More recently, after Republicans denied President Obama’s Supreme Court nominee Merrick Garland his seat and then confirmed an unprecedented number of federal judges and three Supreme Court justices—damning the long-term future of reproductive rights as well as voting rights, climate protections, and much more—Biden, during the first months of his presidency, created a commission to explore whether to expand the Supreme Court. Several months later, the commission took no position and made no recommendations.
Even this month, after the leaked Dobbs draft created an earthquake in the press, the joint statement issued by House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer did not use the word “abortion.” The leadership seems to have no plan for how to harness public outrage, let alone begin dismantling the structural power that Republicans have built over decades. The misogyny that has animated the antiabortion movement is hard to miss. And yet that movement would not be on the cusp of its monumental victory without the effects of a more subtle and pervasive form of misogyny that has treated abortion—a basic form of healthcare that one in four American women access during their lifetimes—as either a taboo personal matter for women or an abstract, controversial political wedge issue.
Nearly every institution in the country is guilty of this more passive form of betrayal. In the media, for example, few publications beyond women’s outlets ran ongoing coverage of escalating state antiabortion laws from 2010 onward, even though they were obvious harbingers of the GOP’s current extremism. When outlets did cover abortion, they often included antiabortion activists’ false claims without sufficient pushback, in gestures toward balance. Shortly before the 2016 Supreme Court decision over Texas’ abortion restrictions, I was on a public radio program panel that included a male antiabortion activist. When the activist said that Texas’ restrictions were designed to protect women from the risks of abortion, I stated the fact that first trimester abortion is extremely safe, and the male radio host replied to me, “Now you’re taking a side!” as if I was weighing in on the ethics of abortion rather than correcting disinformation.
Meanwhile, businesses that profit off the labor and spending of people who rely on contraception and abortion have almost never publicly and unequivocally lobbied for abortion rights. Instead, numerous corporations, including Google and Coca-Cola, have contributed to Republican PACs that have helped install the lawmakers who will decimate abortion access—if not imprison providers and patients—in coming years. Businesses have also quietly restricted access on their own: I recently worked for a nonprofit whose health insurance plan had a specific carve-out prohibiting abortion coverage, in what seems like a clear form of sex discrimination that is nonetheless legal. Meanwhile, for decades, the Hyde Amendment has prohibited abortion coverage for Medicaid recipients, and Democratic leadership has until recently accepted that carve-out without complaint, as if it’s only fair that abortion access should be difficult if not impossible for poor people.
We now stare down the prospect of people having miscarriages showing up at emergency rooms and being questioned as murder suspects. If that seems fantastical, read HB 813 under discussion in Louisiana, which provides “equal protection of the laws to all unborn children from the moment of fertlization by protecting them by the same laws protecting other human beings.” That bill is one of over five hundred antiabortion bills introduced in statehouses this year.
Despair is a rational response, especially if you recognize the full humanity of women and pregnant people and have observed that the purported party of reproductive rights does not seem capable of passing national legislation, despite the fact that it holds the presidency and both chambers of Congress. But there are still actions that can be taken to shore up abortion access, including donating to abortion funds and getting involved in state-level elections. There are gubernatorial races in thirty-six states this November, and many Democratic governors, if elected, could veto Republican legislatures’ abortion bans. There also needs to be an immediate, mass movement in support of reforms that would make our democracy fairer and more representative, including federal voting protections.
It’s critical to remember that the antiabortion movement won in large part because their leaders and activists did not let their attention slip away when the news cycle changed. In the coming months and years, each member of the American public who supports legal abortion will decide whether they will carry on with the denial and defeatism of the last forty years or instead become a protagonist in this unwritten chapter of the struggle for reproductive justice.