The case of abortion in America reveals the influence of ideology
PremiumPoliticians aim to win the next election but ideologues are looking to win the next generation over
If the US Supreme Court decides to overturn Roe vs Wade, its 1973 judgment that recognized women’s right to abortion through an expanded reading of the right to privacy, it will demonstrate the success of determined conservative politicians, advocates, jurists and activists who have worked on a sustained basis to chip away at a hard-won right, one step at a time. To boast of such an achievement, activists need zeal and conviction; a firm belief, that is, with no room for doubt. This belief typically comes from scriptures, as if they hold an eternal truth, even if their reading is selective, and even if the same scriptures have other texts that, if applied literally, could bring back slavery.
The movement against Roe vs Wade began soon after the judgement itself. Conservative churches were appalled that abortion was legal, and they began their campaign in right earnest by trying to elect politicians who claimed to take ‘pro-life’ positions (implying that those backing abortion were ‘anti-life’ and not ‘pro-choice’), vetting the ideological records of potential nominees to courts and supporting only those who passed the abortion litmus test. Activists also started aggressively picketing clinics that offered abortion, shouting at and shaming women who went there, with extremists going to the extent of firebombing these clinics, and, in a few instances, attacking doctors who performed abortions. In some states, right-leaning legislatures shortened the term of pregnancy by when a woman could choose to abort, made exceptions even harder, and placed improbable barriers that made it expensive for any woman who sought to terminate her pregnancy. They also made it more difficult for scientists to conduct stem cell research. The result was that in vast parts of the US, for miles on end, there was no clinic that could legally perform an abortion.
American society, however, was moving in a different direction: a consensus was developing around the idea that abortions should be legal and safe, but rare. Rape and incest, certainly; when the mother’s life is in danger, indeed; and in other instances where the woman has made a conscious choice. By placing insurmountable hurdles, the American right was stripping women of their right, their agency, and their dignity, while elevating the life of an unborn child which may have been unplanned, may not have been born of an act of love, and may have been the result of a sexual assault, or without the woman’s consent, turning the woman into a body meant for child birth, nothing more. The effort was crass, but when the driving force is faith, little room is left for doubt. The same right-wing leaders who spoke of the value of life did little to support single mothers living in poverty by denying them a safety net so essential for a child to lead a healthy life.
Today, more Americans agree that women should have the right to decide, and fewer Americans than at any time insist that abortion is always wrong. The US majority prefers safe and legal access to abortion. Likewise, fewer Americans support late-term abortions, suggesting that the consensus supports early-stage abortion. Legislatures can’t draw that line; it is best left to the woman and her doctor. Those who support the right to abortion relied on two foundations. One was the verdict of 1973, which they thought had settled the issue once and for all; and that was based on the second plank, the idea of ‘stare decesis’, or legal precedent, which must not be overturned. To be sure, the court has made awful judgements, such as in the Dred Scott case, which determined that descendants of slaves were not citizens in the full meaning of the term and could not be emancipated, a decision that so angered abolitionists that it paved the way for the American Civil War.
If Roe vs Wade is reversed, the verdict would not be conservative, but radical, as it would overturn precedent. Some pro-choice advocates have been wary of relying solely on a Supreme Court majority to defend a hard-earned right. All it would take, they had argued, was a right-leaning majority in the apex court, and it could spell the end of Roe, and that is exactly what may happen if the court’s leaked opinion holds. Three of the five judges who formed that majority opinion were appointed by former US President Donald Trump. Reports suggest that Chief Justice John Roberts is desperately seeking a compromise that may retain Roe in some form.
Such a verdict will not ban abortions in the US. It will send the matter to the states. Under America’s federal system, states can have their own laws on many matters; for example, some states have the death penalty, while others don’t. The fight to defend women’s right to choose what they can do with their bodies will now shift to American states. Some may liberalize laws further and some states may make it even harder. Some companies in states that have harsh laws have said they would provide financial support to women who need to travel to another state for the procedure, but legislative action seeking to penalize such businesses can’t be ruled out.
Culture warriors don’t like compromise, but don’t mind dividing people, and that’s where we are. Welcome to the disunited states of America.
Salil Tripathi is a writer based in New York. Read Salil’s previous Mint columns at www.livemint.com/saliltripathi