Resisting in a post-Roe world
Honestly, this is not what I want to be writing about. I wanted to talk about Lisbon today and share a fun travel guide. I wanted to bake a galette in my roasting kitchen and share a recipe and take some photos. And yet. Yesterday not two hours after I published Friday’s What a Wonderful Week, I got the news that Roe v. Wade had been overturned and that Americans no longer had the right to an abortion. We are now living in a post-Roe world.
In addition to ripping away a right that Americans have enjoyed for 50 years, the overturning of Roe has implications far wider than just abortion. We mourn now, but we cannot give up hope. We must resist this attack on our fundamental right to make our own decisions about our bodies. We cannot cede the right to privacy to those who would steal it from us.
This post is very long (sorry). If you want to skip to the suggestions for what to do to resist this attack on our civil rights, click on the button below.
The worst I told you so
This is the worst I told you so, I thought as soon as I could think of anything beyond NOOOOOO when I saw the NYT alert yesterday that the Supreme Court had overturned Roe v. Wade with Dobbs v. Jackson, with a 6-3 margin (Roberts would not have completely overturned Roe, but would have chipped away at it for years before finally doing so).
This means that there is no longer a constitutional right to an abortion, and that the decision has reverted to the states. In 9 states, as of this writing abortion is illegal, due to trigger laws, and in many more, it is severely curtailed or in jeopardy of being outlawed. Even in Massachusetts, abortion rights were only codified in 2020, and had to overcome a veto from our governor.
Not a surprise, but still a shock
Obviously, we all knew that this was where the court was headed when the draft opinion leaked last month and earlier when it refused to stay that evil Texas bounty hunter law, but seeing the words “Breaking News: The Supreme Court overturned Roe v. Wade, eliminating the constitutional right to abortion in a decision that will transform American life” while I was finishing up a meeting still rendered me speechless for a moment, grateful that the call was off video.
Not so hysterical after all
I grew up in a Religious Right, antiabortion subculture, and I know the single-minded focus those groups brought to the fight. Along with so many others, I have spent decades raising the alarm about the court and how much we needed to vote the court. Just last year, even after everything we’d seen, a cis, straight, white male friend of mine told me that the court “would never overturn Roe,” as a way to dismiss the strategy of voting for the lesser of two evils (frankly, I’ve never understood that—less evil is better than more evil).
Any time we raised the alarm about abortion rights and joined them with many of the other rights we enjoy as a result of the expansion of our understanding of privacy rights, many on the Left dismissed us as hysterical. Abortion was a red herring because it would always remain legal. Stop being so selfish, they said, as though bodily autonomy was not something we should concern ourselves with. It definitely wasn’t related to other issues.
Well, now do you believe us?
The Right outplayed us. They had a single focus on the judiciary, knowing that they no longer held a majority of American voters, to advance their agenda. And they’ve gotten what they wanted with Dobbs.
It is telling that four of the six justices who voted to overturn Roe were appointed by presidents who lost the popular vote and confirmed by senators representing a minority of the country (two of them clearly having lied in their confirmation hearings when asked about their views on Roe and stare decisis, the doctrine that holds that the Supreme Court would hold to precedent. The rest certainly shaded their answers).
Amy Comey Barrett’s appointment was jammed through the Senate days before the election that would unseat Trump, after the Republicans sanctimoniously refused to hold hearings for Merrick Garland, who was nominated months before the election, saying that the election needed to happen first. Justice Barrett was installed precisely for this outcome.
Politicized court intent on dismantling civil liberties
They’ve gutted the voting rights act, expanded gun rights far beyond anything recognizable in the Second Amendment, flooded our electoral politics with dark money, allowed our employers to determine our health care, defanged Miranda, funneled money into religious schools (I will donate money to anyone who opens up Satan’s Little Minions Academy in Maine), and are poised to declare government agencies like the EPA unconstitutional.
As Heather Cox Richardson writes in Letters from an American, overturning Roe is part of a larger project to dismantle the New Deal and the expansion of civil rights under the 14th Amendment.
And then they overturned Roe, with no exceptions for rape or incest, and the barest of protections for the life of the mother.
Implications of a post-Roe world
Our post-Roe world means that people who need life-saving care will not always get it, because medical professionals fearing that they may face criminal charges.
A post-Roe world means that miscarriages will be investigated as potential crimes.
A post-Roe world would potentially outlaw IVF.
A post-Roe world means that a twelve-year-old girl might need to carry her father’s child to term.
A post-Roe world means that rape victims would have to give birth to the child of their rapist. In some states, the rapist can then lay claim to parental rights.
A post-Roe world also means that people cannot make basic decisions about if and when they would become parents.
We told you so.
This isn’t about “life”
Antichoice Republicans love to wax poetic about babies in their mothers’ wombs. But this isn’t about life at all. It’s about control.
- oppose anything that attacks the profits of the healthcare industry
- American women have the highest mortality rates in the developed world
- giving birth in the US costs an absolute fortune
- Obamacare measure that made birth control free
- insuring children
- oppose programs to feed poor children
- oppose programs to support poor families
- attack education
- attack sex education
- oppose common-sense gun legislation
- oppose environmental regulations to help protect the health of children and of our planet
- oppose national maternal and paternal leave policies
They may call themselves Pro-Life, but they do not support life. They did not stand up in outrage when Trump ripped children, including infants, from their immigrant mothers’ arms and threw them into cages. They decried giving formula to babies of people arrested at the border, literally implying that we should starve babies.
Oh, and, on the whole, these are the people who refused to wear masks or get vaccinated during a deadly pandemic.
This is not about life at all.
Dobbs relies on terrible logic
The ruling itself relies on terrible logic—women did not have constitutional rights when the 14th Amendment was ratified, and so therefore reproductive rights cannot be understood to be included in 14th Amendment today.
Think about that for a second. Women did not have rights under the 14th Amendment at the time it was ratified. So . . . does this mean that it’s just tough shit, ladies, when it comes to our protections under the 14th Amendment?
Of course, Alito does not come right out and say that, even in this shoddy opinion. However, a true Originalist position holds this to be true. Welcome to the post-Roe world.
Alito’s ignorance of history
The opinion also shows ignorance of abortion’s history under Common Law (it was not criminalized until “quickening,” which could take place as late as 25 weeks), as noted in the dissent from justices Breyer, Sotomayor, and Kagan (page 160 of the PDF; page 13–14 of the dissent).
Abortion, which had been practiced for as long as people have become pregnant, was practiced by the Puritans and was not criminalized anywhere in the US until the movement to medicalize pregnancy and ban the practice of midwifery in the 19th century. As the dissent says, this error of fact is “embarrassing.”
But just because it’s an embarrassingly bad opinion doesn’t make it any less harmful.
We told you so.
The right to privacy
Roe v. Wade was originally decided on the basis of the right to privacy, or the right to be let alone. This right is not explicitly listed, or enumerated, in the Constitution.
It is most certainly implied in context, and the Ninth Amendment explicitly states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
It was this right to privacy that underpinned Roe—and also a slew of other decisions that give us the freedom to live our lives as we see fit, including whether or not we want to have children (birth control) and who we love (interracial and gay marriage, and gay sex). They include:
- Birth control (Griswold and Eisenstadt)
- Interracial marriage (Loving)
- Gay sex (Lawrence)
- Gay marriage (Obergefell)
Thomas’s radical concurring opinion
If you read Thomas’s radical concurring opinion (see page 119 of the file; page 3 of Thomas’s concurring opnion), SCOTUS precedent based on privacy rights should be subject to review. Conveniently, Thomas left out Loving, but included Griswold, Lawrence, and Obergefell as cases that should be tossed aside and then reexamined.
A post-Roe world does not just eliminate abortion rights under federal law.
For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” . . . we have a duty to “correct the error”Clarence Thomas (case references ommitted)
They are coming for more than just abortion in the post-Roe world
“They are NOT going after birth control,” everyone says, and Alito, writing for the majority tries to poopoo such notions.
Don’t be a frog in slowly boiling water—they are coming for it. And they are saying it out loud. And, sorry, Clarence and Ginny, but they are coming for your marriage, along with the gays. Welcome to the post-Roe world you made.
Ahead of the Supreme Court confirmation hearings for Ketanji Brown Jackson, Tennessee Senator Marsha Blackburn (Republican) released a video statement in which she said that Griswold was wrongly decided, and she’s not alone. Republican Senator Mike Braun of Indiana that the Loving interracial marriage decision should be overturned. He tried to walk it back, but it’s just because it got a lot of coverage.
Let’s make them the dog who caught the car
There’s no way to candy coat this, friends. This is bad.
It will very likely get worse.
This is not the time to give up, though.
Let’s make them the dog who caught the car.
Let’s recognize this power grab for what it is: the last gasp of a dying ideology. As dangerous as a cornered, rabid animal, but dying.
We are the majority. We can claw back what we have lost, and we can win.
Abortion is widespread
Nearly one in four American people who can get pregnant will have had an abortion by the time they reach 45. This issue touches everyone in the US, in ways that, because of the very nature of it being a private decision, most people, even close friends and family members, we may not always know.
Do we really want to have people frog marched to prison, our courts filled with lawsuits, and, worse, a pile of bodies, because all this decision will do is stop safe abortions? Do we want miscarriages investigated for possible crimes?
Americans support abortion rights
The answer to those questions is an overwhelming NO. The last poll taken before the SCOTUS ruling showed that a whopping 66% of Americans believed that Roe should continue to be the law of the land, and support for abortion rights for survivors of rape and incest is overwhelming, as is an abortion to protect the health of the mother.
Even at its height, support for overturning Roe never rose above 36%.
Americans can’t even agree that puppies and kittens are cute, and we agree on this.
Regardless of personal views on abortion—and, to be fair, Americans are conflicted about it—Americans believe that the choice needs to exist.
We the people do not want to live in a post-Roe world.
Take action to resist in a post-Roe world
Here are things we can do to fight back that I’ve thought of. They range from the expected and practical to some things I’ve certainly never called for before, but I think that they warrant consideration.
This is NOT just about abortion rights. This is about all of our civil rights. The canary in the coal mine is dead. We have to act, and we have to act now.
Immediate practical steps
Donate to an abortion fund
Abortion funds are local grassroots groups doing the work of helping people get care. The National Network of Abortion Funds aggregates these funds and is a great place to donate, if you can.
Check your state laws—and demand change where necessary
What are the laws in your state on abortion? State laws take over here, so make sure that your state has laws that protect your rights. Demand change if they do not.
Call every official who represents you
I called everyone yesterday and demanded that they do something. While even my Republican governor (who did the right thing yesterday and signed an executive order protecting abortion providers) generally agrees with me on this issue, I called them anyway. We need to fight harder, and they have to do something.
Marching does not accomplish anything in the long term. However, we need a spectacle now . We need people to see that we do not accept this decision. If you are able to march, please do.
Do NOT spend money in states where abortion is illegal if you don’t live there (see below for more on residents from those states).
Boycotts are not without controversy, and, yes, they are a blunt instrument and they can have unintended consequences, but we need to make it very clear that we do not travel to or do business with states that do not recognize our rights.
- If a business is headquartered in one of those states, BOYCOTT them. Let them know why you are boycotting them.
- CANCEL your travel plans in any state that bans abortion. Make sure that people know WHY you have canceled your plans.
If you are able to do so, help people seeking care. Open your home, offer a ride, volunteer at a clinic.
Call for a ban on federal funds for special contracts in states that have banned abortion
We should not spend our tax dollars in places where rights are not recognized. This doesn’t mean schools, or other services for survival and general welfare. However, special contracts with companies headquartered in bigoted states (looking at you, Kentucky)? Fair game. Call on President Biden to issue an executive order, and on Congress to turn off the tap.
This happened because the Right got strategic about supporting candidates and we did not.
- You are voting AGAINST the Right, and that means not always voting for your dream candidate (looking at you, Bernie Bros). We win when we are coming from a place of strength. Let’s vote for Less Evil.
- Vote in EVERY SINGLE ELECTION. Your local races matter, and so do the midterms. We are terrible at this. This is never going to get better if we don’t do better at this.
Other ways to resist in the post-Roe world
Some of these are things I would almost never call for, but think that the dire situation warrants it. Otherwise, these are longer shots for resisting in the post-Roe world.
I’m serious. Let’s make good on the chant that if we don’t get it, shut it down. In Iceland, women staged a general strike in the 1970s to demand equality. It worked. I have no idea how to organize one of these, but I am calling on those who do. It’s time.
Reform the electoral college
Did you know that a voter in Wyoming has four times the presidential voting power of a voter in California? Did you know that the Republicans have won the popular vote exactly once since 1988 (and that was W’s second term, which he should not have had, speaking of terrible Supreme Court decisions)? The reason why Republicans win is because they control more of these small states with outsized voting power.
The Electoral College is a relic of slavery and thwarts the will of the people. It needs to be dismantled. However, that would involve a constitutional amendment that would almost certainly never get the required number of states to ratify it.
There is a potentially sneaky workaround called the National Popular Vote Interstate Compact, which would award electors to the winner of the popular vote. It would not require an amendment to go into effect, and we would only need to get to 270 Electoral votes for this to work.
Check to see if your state has signed on (Massachusetts has) with this site and take action if your state has not ratified it.
If we can’t change the electoral college, we could possibly get statehood for DC. Washington, DC has more people than both Wyoming and Vermont (and similar population to others), and they are not represented in Congress. Taxation without representation? That’s DC. States get admitted to the union by a simple majority vote in the House and the Senate. Recent analysis around the objections with the 23rd Amendment could help here. We would just need a few more Senators this November to be able to make this happen.
Leave a hostile state
Do you live in a state that no longer recognizes bodily autonomy and the chances of voting your way toward success are slim to none? Maybe it’s time to consider moving. Why should that state get your tax dollars, benefit from your labor, and have your right to vote count toward its allocation of federal representation and electoral votes? Why should you be subject to such awful laws?
You could stay and fight for your state and for those in it who can’t leave, and that is absolutely noble. But maybe it’s just time to call it for certain states.
Flood a hostile state
This is the flip side of leaving. Did you know that there are libertarians trying to take over states? New Hampshire, where I grew up, is one such state. Maybe it’s time to try something similar?
Impeach Justice Thomas
Justice Thomas refused to recuse himself from a January 6 case, for which it is now clear his wife had a vested interest in keeping her involvement in attempting to overturn the 2020 election hidden. Not only that, there’s also evidence calling into question whether or not Ginni Thomas passed along information about SCOTUS deliberations around the 2020 election to John Eastman in emails.
Thomas was the lone dissenting voice in the case he refused to recuse himself from, and this makes it worth investigating and possibly impeaching him.
Address Senate imbalance
This is unlikely to happen, but, using Wyoming and California again, the fact that both states the same number of Senators is something that the founders would have been unlikely to view as just. I grew up in a small state, and I do understand the need for the voices of smaller states being heard. But the fact of the matter is that our 50/50 Senate is not half the country. Not even close.
Republicans have not held a majority of the population in the Senate since the 1990s, and yet they have held the majority of seats for much of the time since then. Currently, they represent 43% of the country, but, because they have outsized control in small states, they are able to dominate the senate.
In order to address the Senate imbalance, we’d likely need a Constitutional Amendment, which would face an uphill battle for ratification. Still, it’s worth calling for.
Expand the Supreme Court
Calls for expanding the Supreme Court to correct for the imbalance caused by Mitch McConnell’s shenanigans with court seats (they couldn’t possibly even give Merrick Garland a hearing because it was too close to an election several months out, but pushed through Amy Comey Barrett just days before one), not to mention the outsized role that Republicans have been able to play in the makeup of the court because of the Electoral College and the structure of the Senate.
President Biden is not in favor of this. To be honest, I’m not sure if I am, either, as it would, in theory, be possible to just expand the court any time someone didn’t like the makeup of it. Still, it’s a possibility, and it could help to correct the gross abuse of power that we’re seeing right now in packing the court full of conservative justices who do not represent the will of the people.
Don’t give up hope
Yesterday was a terrible day for our country, and I think a lot of us do need time to mourn and to be angry. This is going to be hard, and people, tragically, are going to get very hurt by this decision.
They want us to feel so stunned and powerless that we will just do nothing. Here’s the thing—we are not powerless. We are the majority of this country. And we can take it back.
Please share your ideas in the comments below. Please note that I monitor these very closely and will not hesitate to delete abusive comments.
I’ll continue to follow this, and regular posting will resume on Tuesday.