CHURCH & STATE | Once They’ve Overturned Roe v. Wade, What Will Christian Nationalists Try Next?
One year from now, you might be holding the Summer 2022 issue of the Humanist and reading very bad news: Abortion is illegal in dozens of U.S. states.
Unthinkable? Not at all. The US Supreme Court has accepted a case that provides the justices with a vehicle to overturn Roe v. Wade outright or so fatally undermine it that, in effect, it’s no longer in force. Many legal observers believe the court’s conservative majority is ready to trash Roe–and when that happens, reproductive justice advocates believe that in at least twenty-four states, legislatures will enact abortion bans.
The case, which will be heard during the high court’s term that begins in October, focuses on a Mississippi law passed in 2018 known as the Gestational Age Act. The law prohibits abortions in Mississippi after fifteen weeks except in the cases of a medical emergency or severe fetal abnormality. (There are no exceptions for rape or incest.) Under Roe, abortions are permitted until a fetus is viable, around twenty-four weeks, so the Mississippi statute is in clear violation of that decision.
Mississippi legislators passed the law knowing it ran afoul of Roe. The governor of Mississippi at the time, Phil Bryant (R), openly admitted that the law would be challenged in court. It was. A federal court struck down the legislation, as did the 5th US Circuit Court of Appeals. The state duly appealed the case, Dobbs v. Jackson Women’s Health Organization, to the US Supreme Court, which accepted it.
Much of the speculation about a post-Roe America has focused on the disparities of treatment that women–especially poor women–will face. If the Supreme Court returns the issue to the states, abortion will be legal in some but illegal in others. Women of means will have the resources to travel to obtain abortions. Poor women will not.
But there’s another important question that shouldn’t be overlooked: If anti-abortion zealots succeed in overturning Roe, what will they try next?
History, both from the past and more recently, provides an answer, and it’s not a comforting one: access to birth control may come under increasing fire; ironically, this will likely occur under the guise of protecting “religious freedom.”
The Supreme Court is already sympathetic to arguments that certain employers shouldn’t have to tolerate birth control in employee health care plans, even though the Affordable Care Act mandates such coverage. A confusing array of workarounds and accommodations have been proposed, but generally speaking, when Republicans are in charge, access to birth control faces roadblocks. Indeed, some religious extremists regard certain types of birth control as forms of abortion and simply will not provide it.
This is merely the latest twist in a long-running battle. In the 1950s and ’60s, several states, especially those with large Catholic populations, had laws on the books banning the sale and distribution of birth control outright.
In some states, doctors were gagged from discussing birth control—even when married couples wanted to have that conversation. In 1949, four doctors were fired from Farren Memorial Hospital in Greenfield, Mass., because they refused to stop discussing contraceptive options with patients who had requested the information. Hospital officials offered to reinstate the doctors only if they would cease discussing the issue with patients. They refused. A state law at the time flatly prohibited doctors from providing any information about birth control, even if a patient wanted it.
Three years later, Planned Parenthood launched a petition drive in Massachusetts calling on legislators to overturn the law. The group secured 80,000 signatures on a petition, but the state’s powerful Catholic hierarchy raised a fuss, and skittish lawmakers sided with the church.
In 1960, birth control advocates in Chicago announced plans to add information about contraceptives at a clinic that served a largely low-income population. Reaction from the Catholic hierarchy was swift, and the plan was quickly scuttled. A few years later, activist Bill Baird began challenging anti-birth control laws in several states by distributing information and contraceptive foam, actions that often got him arrested.
Policies began to change only after the Supreme Court struck down state anti-birth control laws in Griswold v. Connecticut in 1965. The high court cited a “zone of privacy created by several fundamental constitutional guarantees” that gave married adults the right to make private decisions about birth control. Seven years later, the high court extended the privacy finding of Griswold to unmarried couples in Eisenstadt v. Baird, a legal challenge brought by Baird. Griswold and Eisenstadt laid the groundwork for the decision in Roe. In the Roe ruling, Justice Harry A. Blackmun, writing for the majority, found that a Texas law that criminalized most abortions violated women’s constitutional right to privacy.
Roe was a seismic decision that sparked backlash from the Roman Catholic hierarchy and, later, evangelical Protestants. Aligned with conservative lawmakers in the states, these religious interests worked to secure the passage of laws designed to undermine Roe or make abortions harder to get. It took nearly fifty years, but their campaign may be on the verge of success. If Roe falls, the cases that laid the groundwork for it—Griswold and Eisenstadt—could start to look shaky as well.
We don’t have to ask if religious extremists will target birth control next–they already are, and too many people are sanguine about this. Yes, certain forms of birth control will always be available. Anyone can walk into a drug store and buy a box of condoms. But condoms are a male-centric form of contraceptives that, unlike birth control pills, IUDs, and implants, don’t put decision-making in women’s hands and don’t provide a long-term solution to family planning. Not surprisingly, it’s the more women-centered forms of birth control that religious bosses balk at. There’s a reason for that: Their use empowers women.
If all of this sounds too dystopian to become real for you, take a minute to reflect that many woman workers, mostly in low-wage service jobs, are already living this reality. They’ve already had a taste of the post-Roe future, where a legal theory that once protected birth control access under a zone of privacy is now subservient to a skewed definition of “religious freedom” embraced by the Supreme Court–a definition that puts a woman’s reproductive rights at the mercy of a stranger who just happens to own the place where she works.