A supreme injustice: the battle for abortion rights in the United States

Issue: 176

Judith Orr

The richest and most powerful nation on the globe set the clock back on women’s reproductive rights by half a century on 24 June 2022. This was the day the United States Supreme Court reversed its ruling on the landmark 1973 Roe vs Wade case, which had guaranteed the right to abortion in the US for the past 50 years—a right supported by two-thirds of the US population.1 The reversal of Roe vs Wade had an instant and devastating impact across the country. Abortion clinics closed their doors in multiple states where “trigger” laws to ban abortions were invoked. Some of these laws had been on the books for many years just waiting for this moment.

Reaction was immediate. Angry mass protests had already taken place in May 2022, when an unprecedented leak from the Supreme Court revealed a draft of the court’s opinion and its consequences. The official announcement of the court’s decision in June saw even bigger demonstrations and often militant protests in towns and cities across the US. Protesters gathered at the homes of several Supreme Court justices and one, Justice Clarence Thomas, was forced to step down from his teaching role at George Washington University, where he has taught in the law school since 2011, after thousands of students signed a petition demanding his withdrawal. From the stages of Glastonbury to red carpets around the world, major artists, musicians and movie stars denounced the decision, alongside many political leaders. Several major multinational companies joined in the condemnation and committed to pay staff who needed to fly across state borders to access legal abortions.

Overturning Roe vs Wade is a monumental victory for the US anti-abortion movement and the right. It marks the culmination of decades of campaigning during which Republican-run states introduced over a thousand restrictions on abortion provision. Over these years, anti-abortion extremists subjected abortion clinics to violence, aggressive pickets and even fire bombings. So-called pro-life campaigners have been convicted for the murder of 11 doctors who had performed abortions and other clinic staff, and the attempted murder of at least 26 others.2

The ultimate goal was always reversing Roe, and the rise of Donald Trump finally made this possible. He was not the first anti-abortion president, but the power of his right-wing populist narrative and following means that he has delivered the greatest success for the right in decades. His ability to win the mass voting base of the anti-abortion movement and the growing, hugely wealthy Christian evangelical churches was critical to his victory in 2016. He made these supporters a promise—if he won, he would appoint anti-abortion Supreme Court judges who would overthrow abortion rights. He did just that.

This success ensures he is still a contender, and his base is energised. Remember, even when he lost the 2020 election, he still won over 74 million votes. The scandal of the 6 January 2021 attack on the US Capitol building in Washington DC and the evidence of his actions on the day are unlikely to dent this; in fact, it may actually serve to cement his popularity among hardcore supporters. Whatever the result of the next presidential election, Trump’s judges are his legacy. Appointed for life, they are all in their fifties and are only just getting started.

Nevertheless, there is an inbuilt contradiction in the situation. The resurgent attack by the right in the US is taking place at the same time as gains in abortion rights are being made elsewhere and women globally have been at the fore of struggles over sexism and inequality. Although abortion is still banned in 26 countries—and 50 nations only allow abortion when the woman’s health is at risk or in cases of rape or incest—the US is one of only four to have increased abortion restrictions in the past 25 years (alongside El Salvador, Poland and Nicaragua).3 Over the same period, nearly 50 have liberalised their abortion laws.4 In the past ten years, there have been magnificent campaigns in favour of abortion rights across South America, leading to victories in Argentina, Uruguay and Colombia. In Ireland the Repeal the Eighth campaign overturned a constitutional amendment that had banned abortion in a resounding popular vote in 2018.5 In South Korea years of campaigning by the pro-choice movement succeeded in forcing the reversal of 67 years of criminalisation in 2021. Other countries that have further liberalised abortion law since 2012 include Mozambique, Cyprus, Iceland, New Zealand and Thailand.

Given this context, the massive setback in the US has been a shock to many who assumed rights we had won in the past could be relied on. A younger generation is taking to the streets incensed that, in 2022, they might not be able to make their own decisions about their lives and bodies. The first post-Roe referendum on abortion rights took place in Kansas in August 2022 and shows this is a battle that can be won. The result was a triumph for the pro-choice movement—a large turnout delivered a 59 percent majority to keep the legal right to abortion in the state’s constitution. This, in a state that gave Trump a 15 percent majority over Joe Biden in the 2020 presidential election, shows how widespread public opposition to abortion bans is and that even some of the right’s own supporters will not vote for them.

This article will look at the Supreme Court ruling that overturned the right to abortion, what it represents and its impact. It will also look at the context of the original 1973 Roe vs Wade decision and how the right, allied with religious groups, organised to challenge it over the decades since. It will look at why attempts to manage our fertility, which are as old as humanity itself, have become a touchstone issue for the right, and how ideas about reproduction and the family are being used to feed racist and homophobic agendas. Anywhere fascists and the far right are growing they put “gender issues” at the centre of their narratives in order to build support. I will argue that reproductive rights cannot be separated from the wider context of the rise of the far right and its strategy, and this goes beyond abortion and beyond the borders of the US. The right is on the offensive and has made its agenda clear—it wants to widen its attacks and roll back hard-won rights in every area of our lives. If we fail to take them on then no one is safe.

The court

The US Supreme Court—the highest legal authority in the land—is portrayed as being above party politics and solely concerned with the law. Nothing could be further from the truth. Each Supreme Court justice is appointed by a sitting president, and the battle to control the majority in the court is entirely political. The court is not and has never been representative of the US population as a whole. Indeed, in its entire 233-year history only seven of its 115 judges have not been white men. Biden appointed the first ever black woman to the court in July 2022.

Justice Samuel Alito, appointed by George W Bush in 2006, was the lead judge who wrote the 24 June ruling overturning Roe vs Wade. His long-held opposition to it are on the record. One surviving memo from 1985, when he was legal advisor to Ronald Reagan’s administration, shows him advising how to “advance the goals of overruling Roe vs Wade and, in the meantime, of mitigating its effects”.6 For Alito, this judgment is the realisation of a decades-long ambition, dressed up as a point of legal precedent and history. In his ruling he states that he examined whether “the right to obtain an abortion is rooted in the nation’s history and tradition”. He concludes that it is not. This, and the fact that abortion was not specifically referred to in the constitution (a document written in 1787), is his justification for rejecting abortion as a “fundamental right”.

To defend this opinion Alito reaches back into legal history, quoting multiple judges and centuries-old legal decisions. These include Henry de Bracton, an English jurist and priest from the 13th century, who wrote that a person who has “struck a pregnant woman, or has given her poison, whereby he has caused abortion, commits homicide”. This same legal mind also wrote, “Women differ from men in many respects, for their position is inferior to that of men.” Also cited several times is Sir Matthew Hale, a 17th century English judge who described abortion as a “great crime”. Hale is better known for establishing a legal precedent that rape was impossible in marriage, and he also presided over “witchcraft” trials, sentencing to death two elderly widows accused of being witches in 1662.

Such opinions from a past when women had no rights, let alone reproductive freedom, led Justice Alito to assert, “Until the latter part of the 20th century, a right to abortion was entirely unknown in American law.” So, the court’s decision to deliver an injustice to women in 2022 is justified by describing a long history of the same injustice, with the past 50 years regarded as an unwelcome aberration from this historical norm. Despite this, the ruling is actually factually incorrect when it argues that abortion was “entirely unknown” in law until 50 years ago. Under common law abortion before “quickening”, the point in a pregnancy when the woman feels movement, was accepted in most states right up to the late 19th century.7 The exception to this was during the period of slavery, when the children of slaves were seen as slaveholders’ property and women held as slaves were denied the right to end pregnancies. Nonetheless, as always with abortion restrictions, abortions still took place even in such dire circumstances.

The impact of losing Roe vs Wade

The Supreme Court’s announcement changed the landscape of reproductive rights in an instant. Within minutes, doctors and clinic staff in abortion clinics in more than a dozen states had to go to women sitting in waiting rooms and explain that the law had changed and their abortions could not go ahead. Staff reported desperately trying to organise alternatives in other states, although many knew that the personal circumstances of some of their patients might make travelling impossible. One clinic worker who had to phone 60 women to cancel their appointments told the New York Times podcast that it was the worst day of her life.8 There now exists a dystopian world in states across the US where women and pregnant people are completely denied bodily autonomy and are required by law to carry a pregnancy to full term. The only things missing in this new reality are the white bonnets and red cloaks of Margaret Atwood’s The Handmaid’s Tale.

These abortion bans affect all women, but not equally. Rich women will be able to fly out of states with bans to access “safe haven” destinations committed to provide legal abortions. This will not be an option for most women. Those most severely affected by the new legal regime will be the poor and the working class, African American and other ethnic minority women, rural women who already live far away from an abortion clinic, young women who may fear admitting they are pregnant, and undocumented people.

The range and extent of legal restrictions that different states will impose is still being fought over in state courts and referendums. At least 26 states are likely to have total abortion bans in place by the end of 2022, affecting 36 million women of reproductive age: half of all women of reproductive age in the US.9 Some states have reverted to laws in place before Roe vs Wade; Wisconsin’s abortion restrictions, for example, are now based on a law passed in 1849. The geographical grouping of states with the most severe restrictions (for example, in the South) puts an even greater burden on someone trying to access a legal abortion. People may have to travel through several states to get to a “safe haven” state or city where attorneys general or prosecutors have committed to not prosecute any abortion providers.10 Predictions suggest the end of Roe means over 24 million women will have to travel at least 150 miles more than they currently do to obtain care.11 Other states, for example, Minnesota and Illinois—likely to be the only Midwest states where abortions will be accessible and legal—are having to expand services as rising numbers of women come in from other states.12 One abortion organisation, Just the Pill, says it is now carrying out telemedicine consultations with people in states with restrictive laws and is rolling out mobile clinics along state borders.13

The new restrictions are brutal. Only a minority of states instituting bans makes exceptions for rape and incest. Of course, such exceptions are essentially moral judgments on women’s behaviour, implying that that there are “good” and “bad” abortions—acceptable abortions that are justified, in contrast to unacceptable ones where a pregnancy is the result of consensual sex. In truth, there are no good or bad abortions. If a woman does not want to be pregnant, that is enough, and it is no one else’s business why a woman might need an abortion. However, exceptions are at least an advance on the Trump zealots who declare women should “make lemonade out of lemons” by having their rapists’ babies. The reality to which such views lead was shown only days after the Supreme Court decision, when a ten year old girl in Ohio who had been raped was denied an abortion in her home state. Her family had to take her to Indiana to get an abortion. For days, the right-wing media claimed the story was a hoax, smearing the doctor who carried out the abortion as a liar.14 However, the story was true, and sadly there will be many more like it.

One significant difference with the situation prior to the original Roe vs Wade ruling is that many abortions are no longer a surgical procedure. Pills provide a safe alternative for early abortions, which constitute the vast majority in the US. In 2019, the last year for which government figures are available, 43 percent of abortions occurred in the first six weeks of pregnancy, and 92 percent in the first 13 weeks.15 Such abortions can be provided either by telemedicine—receiving medical advice through online or phone consultations—or self-managed after receiving pills in the post. However, between January and March 2022, anticipating Roe’s reversal, Republican states introduced 100 measures to restrict such medication. Missouri attempted to classify shipment of abortion pills as drug trafficking and Louisiana passed a law that means anyone found posting pills to someone in the state could face six months in prison.16

Worries that restrictions on “morning after pills” could be the next target resulted in a spike of sales as people bought multiple packets. One company had to ration the pills after demand rose by more than 600 percent in the 24 hours after the Supreme Court announcement.17 Patients undergoing IVF treatment in states with bans have requested that their frozen embryos be moved across state lines in case the interpretation of “life begins at fertilisation” jeopardises their ability to make decisions about them.

Despite the heroic efforts of doctors, health workers and activists, women are going to die because of the Supreme Court’s decision. Many women may be unable to find the right information, may be unable to access the care or may have no internet access or a credit card. Others may be unable to afford the time or money needed to travel or be able to leave their children or an abusive partner. Those with precarious jobs may find it very difficult to be absent from work for the days it might take to access legal abortion services. Such women may be forced to resort to unsafe methods, because abortion bans do not stop abortions—they simply push them underground. TikTok and YouTube have been forced to remove multiple videos promoting post-Roe “life hacks” recommending “natural remedies” for abortions, ranging from the totally ineffectual to concoctions that could cause severe illness. Google Trends data shows that, in the week following the Supreme Court decision, searches for “pennyroyal abortion” leapt by 40 percent and those for “blue cohosh pregnancy” increased by 70 percent. These Google searches refer to plants that are potentially dangerous—even life threatening—to ingest. For some women the clocks have gone back not 50 years, but to risky solutions in use two millennia ago.18

It is hard to quantify the profound impact on the lives of women who fail to access an abortion they need and are forced to carry an unwanted pregnancy to term. One long-term research project, published as The Turnaway Study: Ten Years, a Thousand Women, and the Consequences of Having—or Being Denied—­an Abortion by Diana Greene Foster, is a path-breaking attempt to do just that. She followed the lives of 1,000 women over five years. Half were granted an abortion they asked for, and the other half were denied abortions because they were slightly over the arbitrary time limit of their home state. In forensic detail Foster shows through case studies the negative impact in all areas of their lives on the women forced to carry their pregnancy. The negative effects include damage to their physical and mental health, economic security (remember, the US is a country without even statutory paid maternity leave), families, and relationships. The study refutes the fear-mongering propaganda of the anti-abortion movement and shows that harm to women’s mental health comes from “the denial of services not the provision”. Five years on, relief was “the most commonly felt emotion” expressed by those granted an abortion.19

Banning abortion also makes pregnancy itself more dangerous, especially in a country with by far the highest maternal mortality of any developed rich nation. In contrast to international trends of health improvement in this area, maternal mortality in the US actually doubled between 1987 and 2020.20 In 2020, the maternal mortality rate was 23.8 deaths per 100,000 live births, and it was more than twice that among African American women, for whom the mortality rate was 55.3 deaths per 100,000 live births.21 Demographers predict that abortion bans mean that maternal mortality will increase by 21 percent but that, “echoing existing disparities”, it will be higher among black patients.22 It is important to note that many of these health inequalities also exist in maternal care in Britain. For example, a report in 2021 concluded that data on maternal mortality showed: “Women from black ethnic groups are four times more likely to die than women from white groups. Women from Asian ethnic backgrounds are almost twice as likely to die in pregnancy compared to white women”.23

The full and horrific implications of Roe’s reversal are still unfolding, even as the anti-abortion movement signals its further ambitions to impose abortion bans throughout the US and criminalise any initiatives that might help women access abortion services. A model motion composed by Jim Bopp, a leading legal strategist for the anti-abortion movement since 1973, was circulated ten days before the Supreme Court announced its decision. It spells out in calculated detail a plan to make every possible method of accessing and providing a safe abortion illegal, including “giving instructions over the telephone, the internet or any other medium of communication regarding self-administered abortions or means to obtain an illegal abortion”. It would also criminalise “hosting or maintaining a website or providing internet services that encourage or facilitate efforts to obtain an illegal abortion”.24 This is far from over.

Criminalising pregnancy

The anti-abortion movement used to claim abortion restrictions protected and “empowered” women, and that mandated information and waiting times helped women make decisions, as if a woman did not know her own mind. Now, however, the foetus and its “protection” are at the centre of campaigns. The foetal images made possible by the development of ultrasound technology are weaponised by anti-abortion campaigns that portray the foetus as a separate entity to the woman carrying the pregnancy. This has shaped new and dangerous forms of legislation. Being pregnant in the US, especially if you are poor or black, means being subject to state surveillance of every aspect of your life and behaviour in case you act in a way deemed detrimental to the foetus you are carrying. The law in some states sees you as little more than an incubator for a foetus with rights that can override yours. Several states such as Georgia, Iowa, Ohio, Oklahoma, South Carolina and Nebraska have passed or are pushing through “foetal personhood” laws, similar to the Eighth Amendment in Ireland, which give equal weight in law to the foetus and the woman.25 Georgia’s personhood law goes the furthest, classifying foetuses as tax deductible dependants and eligible for child support.26

Such laws mean doctors, fearing prosecution, may hold back from terminating a pregnancy, even if it becomes unviable and even when a woman’s life is at risk. This is not a prediction—we have already seen it in Ireland, where Savita Halappanavar died in a maternity hospital in 2012 when denied an abortion after her pregnancy partially miscarried. At least three women have died in Poland since brutally restrictive laws were tightened even further in January 2021. These women did not die in the backstreets, but in modern hospitals. In a further sign of what this means, women in Poland report that pregnant women have been denied cancer treatment because it could harm a foetus.27 Many doctors in the US are asking how close to death a woman must be for a termination to be legal. In states with bans in place ethics committees and panels of doctors are now often making judgments about whether and when a woman gets a life-saving termination. These decisions would have been routine for a single physician to make before 24 June.

Even before Roe was reversed, more than 400 pregnant women were arrested, detained or subjected to forced medical interventions between 1973 and 2005, and this figure more than tripled between 2006 and 2020.28 Several women have faced murder charges after miscarrying and pregnant women have been prosecuted for “falling down stairs, giving birth at home, exposing a foetus to dangerous ‘fumes’, having HIV, not resting enough during the pregnancy, not getting to a hospital fast enough while in labour, being the victim of a shooting and self-inducing an abortion”.29 One 25 year old woman, Chelsea Becker, spent 16 months in a California jail until a judge dismissed her case after being charged with “murder of a human foetus” after she had a stillbirth in a hospital in 2019.30

Now that abortion bans extend to more than half the US, any pregnancy loss can potentially be treated as a crime. Moreover, a range of online data about your life could be used as evidence, including “search histories, browsing histories, text messages, location data, payment data and information from period-tracking apps”.31 Pro-choice activists are advising people to delete hormone-tracking apps and other health information that could be used in court.32 Due to similar concerns, Google has had to assure users that it will delete certain location logs on phones, for example, when visiting a Planned Parenthood clinic.

The threat of criminal allegations and the risk of arrest could deter someone experiencing pregnancy loss from seeking medical help, and it may even mean that some women will avoid any antenatal care altogether. The logic of this has again already been seen in Poland. In June 2022, the Polish government announced that doctors would be required to log details about their patients’ pregnancies in a national database, which has been described as a pregnancy register.33 All of this shows just how far the right is prepared to go to push state interference into some of the most intimate part of our lives, even while promoting libertarian “freedom” on other issues. For example, the right hijacked the very pro-choice slogans they oppose over abortion—such as “Our Bodies, Our Choice”—when challenging rules on mask-wearing during the Covid-19 pandemic.34

The original Roe vs Wade ruling

The 1973 Roe vs Wade Supreme Court decision has to be seen in the context of the political ferment of the time. Justice Alito was right on one point in his ruling—the 19th century laws criminalising abortion were indeed effectively challenged in the latter part of the 20th century. The 1960s opened a momentous period of revolt in the US and around the world, with movements against racism, the Vietnam War, and for women’s and LGBT+ liberation. Women experienced a transformation in the reality of their lives and their expectations as the post-war boom drew millions into the workforce and further education. These developments were a fundamental challenge to the discriminatory structures and assumptions of the past. As Judith Brown, one of the founders of the US women’s liberation movement, wrote:

Supreme Court cases bob along behind social reality like little rowboats towed behind huge gun-ships… When we celebrate Roe vs Wade, we celebrate not the legal opinion of nine men in DC, but the thousands of women who forced change so that what was once illegal became legal.35

Nevertheless, the 1973 ruling has come under criticism from pro-choice advocates who say its flaws made it easier to challenge. Such criticisms point to the fact that Roe protected abortion via reference to the individual’s right to privacy—which is guaranteed by the 14th amendment—with the doctors making the decisions, rather than being based on women’s autonomy and right to control their own bodies. These criticisms are valid. For example, the original ruling spells out the dominant role of the doctor (who is assumed to be male):

The decision vindicates the right of the physician to administer medical treatment according to his professional judgment… The abortion decision in all its aspects is inherently and primarily a medical decision, and basic responsibility for it must rest with the physician.36

However, there are two problems with framing the 2022 defeat in terms of the weaknesses in the legal underpinning of the original ruling. The first is that the right and the anti-abortion lobby did not make Roe vs Wade a central cause because they were concerned about flawed legal arguments, incorrect use of the 14th amendment or any other legal nicety. Whatever constitutional amendment was cited, and whatever legal precedent was invoked, would not have changed their opposition to abortion. They would have found different legal loopholes to undermine in order to overturn the right to legal abortion however it was formulated. The real issue is the growing political strength of the right and its ability to win such a victory—as well as how it can be challenged.37

The second problem with this framing is that it can lead to a dismissal of the historical significance of the Roe vs Wade ruling, which would be a profound mistake given the impact it has had on millions of people over the past 50 years and the many lives that have been saved. During the 1960s, it is estimated that between 3,000 and 5,000 women died every year from illegal abortions.38 When the state of New York made abortion legal, in advance of the Roe vs Wade case, septic abortion wards in hospitals were no longer needed, and maternal mortality fell by 45 percent the following year.39

The pressure to frame abortion as a medical privacy issue, as in the original case, was shaped by both legal arguments and attempts to make abortion palatable to a mainstream audience still holding doctors in deference. It also reflects the specific context of the US’s private healthcare system. Questions of health insurance and what it covers were, and remain, critical. If reproductive healthcare is deemed to fall outside necessary healthcare, it is harder to have it covered by health insurance. Indeed, 12 Republican states even shut down abortion clinics during the pandemic because they designated abortion services a “non-essential service”.40

The Roe vs Wade ruling forced the anti-abortion movement to regroup. Unable to challenge the federal court ruling outright, it developed a strategy of undermining the rights it enshrined in individual states.41 The central question of how abortions were funded became an early battle of attrition. The so-called Hyde Amendment, which prohibited almost all federal funding of abortion provision, passed in 1976 and was the first major challenge to Roe vs Wade’s guarantee of abortion rights.42 It meant poorer women reliant on Medicaid for healthcare could not use it to access abortion—nor could federal employees and women in the military.43 For readers in Britain, with its National Health Service, it is easy to overlook the impact on working-class people of living under a system of privatised healthcare. To pay for an abortion in the first 12 weeks of pregnancy cost at least $500 in 2020, but travel costs and loss of wages can cost hundreds more. If your pregnancy is over 12 weeks, the cost will be at least double, which is a price beyond the finances of many, with studies showing that “a quarter of Americans struggle to pay for an emergency $400 expense”.44

The most significant attack on Roe vs Wade came in the 1992 Planned Parenthood v Casey decision.45 This allowed states to impose a range of limits, requirements and obligations on women, doctors and clinics as long as these did not constitute an “undue burden”. This opened up an era of ever greater restrictions and attempts to push the meaning of “undue burden” as far as possible—all of which continues to disproportionally affect working-class and poor women. One legal academic noted that these restrictions reproduced “a rough facsimile of the wealth and race discriminations that held prior to Roe”:

Middle-class women can now obtain abortions in every state with greater convenience and easier consciences… Other women are hampered from seeking abortions in the same ways that they were disadvantaged by the pre-Roe statutory restrictions.46

Attacks on abortion services have escalated in the last decade. Between 2011 and 2019, states enacted 483 new abortion restrictions, comprising 40 percent of all the new state abortion restrictions since Roe vs Wade. Nancy Northup, president of the Center for Reproductive Rights, observed, “What you’re seeing is an underhanded strategy to essentially do by the back door what they can’t do through the front”.47 The anti-abortionists peddled countless lies, myths and horror stories about the “dangers” of abortion. Republican-controlled states imposed myriad rules, including dictating the widths of corridors and insisting abortion clinics had technology equivalent to the emergency department in a hospital. Such restrictions became known as TRAP laws—“targeted regulation of abortion providers”—and were an attempt to close down clinics by making it virtually impossible to fulfil mandated technical requirements. This resulted in a fall in the number of clinics providing abortion services from 2,700 in the 1980s to 800 in 2020.48 Some state laws dictate who women have to tell about their abortion, for example, their husband or parents. Some require doctors and clinic staff to perform a medically unnecessary transvaginal ultrasound on any woman requesting an abortion, which has been likened to state-sanctioned assault. Some laws “dictate what doctors must say to a patient, even requiring physicians to tell downright lies about the procedure, such as that abortion causes breast cancer, suicide and infertility”.49 The passing of such laws has intensified with the growing strength of the right and its coalescence into a powerful movement that has come to dominate the Republican Party.

The anti-abortion movement

Abortion has become a key mobilising issue for the right. It is portrayed as a challenge to the natural order of society and a dangerous undermining of the key institution of the traditional nuclear family. The centrality of the family and the ideological and economic role it plays in society are common threads across different wings of the right, from fascists to mainstream conservatives. The morality expressed about “family values” is a way of forcing people to accept the ruling-class view that the next generation is the responsibility of the parents. Parents are expected to care for and nurture children, and other dependants, with as little reliance on the state as the capitalist class can get away with.

Women’s role in the family is central to this ideology. It is within the family that traditional gender roles are shaped and reinforced. Within this ideology women’s function as child bearer is revered as her most important responsibility, regardless of the profound changes in women’s lives over many decades. The power of this oppressive ideology is so great that abortion is still associated with shame and stigma even where it is legal and commonplace. In the model traditional family, sex is between a heterosexual couple and is about having children. This ideology also shapes homophobia, as shown in the Tories’ notorious Clause 28, which banned teaching the “acceptability of homosexuality as a pretended family relationship”.

Such views also underpin some of the further ambitions of the Supreme Court, as spelt out by Justice Thomas, who was appointed by George H W Bush in 1991. Thomas wrote a “concurring opinion” that accompanied the ruling reversing Roe, saying he believed the court should re-examine other landmark civil rights judgments. He cited three: same-sex marriage, sex between men and access to contraception. He was unambiguous about the court’s intent, writing, “We have a duty to ‘correct the error’ established in those precedents.”

For the right, abortion represents the ultimate betrayal and rejection of our “natural” roles. Furthermore, any separation of sex from procreation is anathema to the bigots, past and present. It has even been blamed for the depopulation of rural regions by the Spanish far-right Vox party. According to one of Vox’s elected representatives, Juan García-Gallardo, responsibility for the depopulation of Spain’s countryside lies with people who “forget that the main purpose of sex is procreation” and thus “free themselves from the chains of family and marriage in order to dedicate their existence to satisfying their sexual desires”.50 Women’s and men’s lives and families have changed, but the dominant ideology about the family and its function is as important as ever. In fact, the ideology becomes all the more important to uphold precisely because the reality has changed.

The question is, however, how did the specific issue of abortion come to dominate the US right and the Republican Party, eventually enabling fundamental reproductive rights to be taken away from millions? Some commentators argue that the Republican Party originally began to put abortion at the centre of its campaigning in order to attract Catholic votes, seen as traditional supporters of the Democrats. This may have been part of some Republican campaigning, but it does not tell the whole story. The Catholic Church had long been at the forefront of opposing abortion, but what really put anti-abortion campaigners in the driving seat was the coming together of different wings of the right and the Republican Party with the growing power of the Christian evangelical movement. The huge power of this movement, with its megachurches, immense wealth and socially conservative ideology, has been documented by historian John Newsinger in his Chosen by God: Donald Trump, the Christian Right and American Capitalism (Bookmarks, 2020).

The 2010 mid-term elections, halfway into the first term of Barack Obama’s presidency, can be seen as a turning point in the political trajectory of the anti-abortion cause and the right. Backed by the growing far-right Tea Party movement, the Republicans gained 64 seats in the House of Representatives, giving them a large majority and putting them just a few seats short of taking control of the Senate.51 Tea Party activists had put the economy, taxes and opposition to Obama’s healthcare plans at the centre of its campaigning. Yet, after 2010, social issues, most significantly abortion, came to lead the agenda. New alliances between the right, traditional anti-abortion campaigners and evangelical churches gave abortion ever more visibility as a mobilising issue.52

What has been the role of religion in these developments? Religious groups in anti-abortion campaigning have played a major role in the anti-abortion movement in the US and elsewhere. Nevertheless, the battle over abortion cannot be simply read as a religious question. First, religion does not mould society but rather reflects and reinforces oppressive structures (indeed, it can also sometimes be a vehicle for expressing opposition to these structures). For example, up until the late 19th century, even the Catholic Church in US, in step with common law and societal customs, did not oppose abortion before “quickening”.

Second, Trump, like most of the far right, was not motivated by religious faith and Christian ideology. His transition from being pro-choice to anti-abortion was not a religious or ideological conversion. Instead, it was purely transactional. The anti-abortion lobby gave him a reach into a large base of conservative voters; his side of the bargain was to promote the cause and deliver the reversal of Roe. In 2016, talking about what he now called “the sanctity of life”, Trump declared:

I will protect it, and the biggest way you can protect it is through the Supreme Court and putting people on the court. Actually, the biggest way you can protect it, I guess, is by electing me president.53

Rosalind Pollack Petchesky, a historian of US abortion rights, has written on this process and how the right taps into religious and evangelical Christian ideas, language and movements to promote its ideas:

Religion supplies a language and symbolism through which the right lays claim to the righteousness and purity of its vision. Abortion represents all the satanic evils the right seeks…the foetus symbolises the pristine and the innocent that must be saved (family, children, God, the American way)”.54

Such language is widely used by Trump supporters. For example, Kristina Karamo, Trump’s preferred candidate for Michigan secretary of state, calls abortion “satanic.55

Nevertheless, whatever the language or symbols, all attacks on abortion and wider reproductive rights in the past and present are political. This was the case when women were forced into the backstreet, locked up in institutions because they were pregnant while unmarried or subjected to forced adoptions. It is the case when some abortions are seen as acceptable and others are not. It is the case when women’s behaviour is judged and punished and when their ability to make choices about their lives is denied.

The right, reproduction and racism

The socially conservative narrative around reproduction has also long been steeped in racism among far-right and fascist movements. Eugenic ideology promoting reactionary ideas about maintaining “racial purity” and upholding the power of the white race dominated the early 20th century. Procreation was encouraged among some and denied to others, with the Nazis taking this racist strategy to its most horrific ends. Forced sterilisation of Jews, disabled people, Roma and black people was part of their programme, while German women were told their job was to breed the “master race”. This desire to manipulate women’s fertility has been linked to racist population control and colonial domination for centuries. Horatio Storer, one of the earliest campaigners to make abortion illegal in the US in the 1870s, articulated this when he declared that the country’s west and south had to be populated by white Americans rather than “aliens”. He claimed that the responsibility for this lay on women, “upon whose loins depends the future of our nation”.56

Early birth control movements in the US and Britain were often shaped by the dominant eugenicist ideas of the time. White middle-class women were encouraged to have more children, while birth control was advocated for poor and immigrant women, who were seen as “unsuitable” mothers having too many babies and weakening the “stock”. After the Second World War, white women in the US were denied sterilisation under the “120 rule”, under which a woman’s age multiplied by the number of her children had to be at least 120 in order to access the treatment.57 If they had contributed enough children they were “allowed” to stop reproducing. At the same time forcible sterilisations were carried out on African American women in the Southern states through to the 1960s. This happened without their consent, and often even without their knowledge, while in hospital for other conditions. Civil rights activist Fannie Lou Hamer spoke out about her experience of being the victim of a “Mississippi appendectomy”, as it was coined, and revealed that 60 percent of black women who went through her local hospital had also been sterilised.58 In the early 1970s Mexican American women also underwent sterilisations, this time in hospitals in Los Angeles after signing forms while in labour. They were told pain relief would be withdrawn if they did not provide a signature, and many did not understand what they were signing.59 As recently as 2010, the California State Auditor’s Office reported on women in prison being sterilised without their full consent.60 This history is why many US activists describe their aims as “reproductive justice”, which they see as concerning both the right to end an unwanted pregnancy and the right, so often denied to black women historically, to have and bring up a family. Today, it is still black women who are more scrutinised, whose fertility is deemed problematic and whose reproductive rights are most affected by crackdowns.

In some countries the far right simply campaigns against the right to abortion, but today we also see increasingly open racist policies that aim to limit black and minority ethnic populations while promoting bigger families among the white population. The far right’s promotion of the “great replacement theory” across Europe and the US flows from this racist ideology, with its claims that the white race will be overrun and outbred by immigrants. Republican congressman Steve King, who represented Iowa for almost two decades until 2021, outlined the racist argument:

The US subtracts from its population a million of our babies in the form of abortion. We add to our population approximately 1.8 million of “somebody else’s babies” who are raised in another culture before they get to us.61

Hungary’s far-right prime minister Viktor Orbán has long referenced the “great replacement theory”. He openly connects this to his policies concerning reproduction and fertility: “We want Hungarian children. Migration for us is surrender.” The Hungarian government provides multiple incentives for married heterosexual couples to have more children including large loans, repayment of which is deferred with the birth of each child. After three children, the loan is written off, and women with four children are exempt from income tax. At the same time, there are various attempts to limit the growth of the Roma population.62

In Poland, too, the far-right government offers financial incentives to Polish couples to have children in what prime minister Mateusz Morawiecki candidly describes as “a revolutionary socio-demographic project”. The racist agenda underpinning this policy is clear in his speeches: “In Germany, billions of euros are spent on support for immigrants, but here these billions of złotys are spent on Polish families”.63 In Italy, the strength of the far right, and the enduring power of the Catholic Church, has seen whole cities and regions designated as “pro-life”, with no abortion provision despite it being legal since 1978. Giorgia Meloni, leader of the fascist Fratelli d’Italia (Brothers of Italy), has said she would not overturn this law if she became prime minister, but she has also claimed “abortion is defeat”. At a pan-European far-right rally in Spain in June 2022, she declared, “Yes to the culture of life! No to the promotion of death!64 Her opposition to abortion and encouragement of Italian women to have more children in order to address the country’s rapidly falling birth rate goes hand in hand with support for denying social services to families of immigrants.

The needs of capitalism

Despite the rise of the right and the anti-abortion movement in the US and parts of Europe, its aims do not represent the strategy or interests of the whole ruling class. Most bosses do not want to send women back to the home—after all, they need women to work to make profits from their labour. Women are an essential and permanent part of the workforce. That is why major companies in the US, including Amazon, Bank of America, J P Morgan, Microsoft and Mastercard, committed to pay for employees to fly out of state for an abortion if their home state bans them. Starbucks also said it would reimburse abortion costs for its staff in such situations. However, in a chilling reminder that capitalists do not see civil liberties as any sort of principle, the company went on to say that they cannot “make promises of guarantees about any benefits” for unionised stores. So, not only are lawmakers taking away reproductive freedom, but some bosses are also actually using this attack as an opportunity to discipline workers who exercise their right to collectively organise. Starbucks are pro-choice, but not if you choose a union.

Nonetheless, the ruling class still wants women in the workforce to feel responsible for taking care of the next generation, as I have argued above in my description of the ideology and structures reinforcing the centrality of the family. Such expectations are not only propagated by ideology, but can also be enforced by legislation. The “two-child policy” introduced by the Tories in Britain in 2017 is an example of modern sanctions on working-class women’s fertility and the right to have the means to bring up a family. Of course, this is not a rule that says you can only have two children; if you are rich, you can have as many children as you want. Instead, it means that, if you rely on benefits, you do not get child tax credits for any children beyond your first two, affecting some 1.1 million children. So, if you rely on benefits, the Tories punish you and your children. In an added cruelty, exceptions are made if you declare that a child is a result of rape. In order to access vital benefits 1,330 exemptions were granted to women who disclosed such circumstances. Here, the hypocrisy of the ruling class is exposed. However much they might eulogise on the importance of the family, their policies are not about caring about families, babies and children. They do not care. This is about policing the working class.

Class shapes a woman’s role in society, including her ability to make decisions about her body and life. This means reproductive rights are an issue for the whole working class. It is no coincidence that the first country to legalise abortion was Russia after the October Revolution in 1917. Russian revolutionary Alexandra Kollontai wrote that access to safe abortion was “women’s fundamental democratic right”.65 In Britain the left and the working-class movement has a proud record of defending abortion rights. The trade unions have provided the backbone of the defence of these rights in Britain since 1967, when the Abortion Act opened an era of legal abortion in England, Scotland and Wales. All the major trade unions are affiliated to the national Abortion Rights campaign, and the biggest demonstration to defend abortion rights in Britain was organised by the Trades Union Congress in 1979, when 80,000 took to the streets. There is a long memory in the working class of who died in the backstreet when abortion was illegal. This is why abortion is a class issue and a trade union issue.

After the fall of Roe, anti-abortion bigots in Britain took the opportunity to spout their disdain for women’s rights. Tory MP Nadine Dorries, who over many years has repeatedly proposed legislation to limit abortion rights, stated once again that she wanted to see the time limit cut from 24 to 20 weeks. Danny Kruger, another Tory MP, said he did not agree that “women have an absolute right to bodily autonomy”. Jacob Rees Mogg welcomed the overturning of Roe vs Wade and commented that abortion services were the “saddest part of modern British life”.

Polls in Britain show a consistent majority of 85 percent support the right to legal and safe abortion.66 Nonetheless, many are unaware that abortion in England and Wales today is still underpinned by a criminal law, the 1861 Offences Against the Person Act, that makes abortion a crime punishable by “penal servitude for life”. The 1967 Abortion Act ended backstreet abortions and stopped women, most of them working class, dying. Yet, even in 1967, pro-choice campaigners knew that the Abortion Act was not enough. The law was never extended to Northern Ireland, where abortion only became legal in 2019 and abortion services have still not been commissioned. Most significantly, rather than repeal the clauses on abortion in the 1861 law, the Abortion Act created certain exceptions to it. Abortion is legal on the basis of these exceptions, with doctors made the gatekeepers. An abortion is still only legal in Britain if two doctors give consent and certain conditions must be met. Women have been prosecuted under this Victorian legislation even in 2022. The call to remove abortion from all criminal law is now widely supported by the main medical institutions including the British Medical Association and the Royal College of Obstetricians and Gynaecologists.67 Mobilising our collective strength will be critical to challenge the anti-abortion movement wherever it organises, ensure there are no rollbacks and win the right to have abortion treated like any other form of healthcare.


History shows that, when our side is strong, we can win significant reforms, which can transform our lives in many ways. However, it also shows that struggles and victories do not proceed in a linear fashion. It is not ever onwards and upwards until we achieve women’s liberation—let alone socialism. Reforms can be undermined and even snatched away, including the fundamental rights of half of the population to control their bodies. This exposes just how deeply entrenched women’s oppression still is in modern capitalism. The events in the US constitute the most serious attack on reproductive rights for generations, and it will need a mass fightback to challenge it.

When Trump was inaugurated in January 2017, the biggest demonstrations ever staged in the name of women’s rights took place in the US and across the globe. Although the reaction to losing Roe has been anger and militancy, the scale of mobilisation has not reached those levels. Biden and other Democrat politicians denounced the Supreme Court decision, but their response does not begin to tap into the potential for mass opposition to abortion bans. Biden even admonished some protests for their militancy, implying they should leave it to him. The Democrats’ strategy has been dominated by a call for people to vote for them in November’s mid-term elections. Nobody should have any illusions that once again waiting for future elections to elect more Democrats is the answer. Successive Democrat presidencies have not stopped the steady and deliberate chipping away of abortion rights in state after state since 1973. Biden himself has said in the past, “I do not view abortion as a choice and a right. I think it’s always a tragedy… I think it should be rare and safe”.68 Such an approach plays into the anti-abortion narrative. In contrast, socialists should argue that there are never “too many” abortions. The right number of abortions is how many are needed. The ability to access an abortion when you need it is not a tragedy; it is simply a matter of making decisions about your own fertility.

It was good that some Democrat politicians joined protests, with several even being arrested, but this action appeared more like a stunt than a serious attempt to lead a campaign to overturn the decision. The weakness of the Democrats’ response to an attack they knew was coming shows they cannot address the threat of an emboldened right and an anti-abortion movement that is more confident than ever. Their narrow electoralism has led to deepening bitterness on the ground among activists, local abortion service providers and their supporters. There is anger that legislation to protect abortion rights at a national level has not been prioritised by the Democrats before now. There is rage that some appear to be simply using the issue as leverage to raise party funds and win votes.

The politicians’ view from the top sees the lives of millions of people as objects of political machinations and manoeuvres, rather than agents for change. There is an alternative. The inspiring struggles for abortion rights that we have seen globally show the potential for organising resistance in the US. The anger about the loss of Roe in the US can be mobilised alongside wider struggles to defend LGBT+ rights and fight racism. The militancy and power of the Black Lives Matter movement shows what is possible. It is a fight we can win.

The right to access free, safe and legal abortion is a challenge to the core structures of women’s oppression that shape the dominant ideology around motherhood and reproduction under capitalism. Women’s oppression is not rooted in our biology—the potential to give birth—but in the way society is organised and, in particular, how it organises the care of children. This means that the fight for abortion rights is at the heart of any struggle for women’s liberation. Socialists’ starting point is a fundamental commitment to the right of women and pregnant people to control their own bodies. Without the ability to decide if or when to have a child, women cannot play a full role in any part of society, and in the struggle to change it.

Judith Orr is the author of Abortion Wars: The Fight for Reproductive Rights (Policy, 2017) and Marxism and Women’s Liberation (Bookmarks, 2015). She is currently vice-chair of the Abortion Rights campaign.


1 Gonzalez, 2022.

2 Reagan, 2022, pxx.

3 Center for Reproductive Rights, 2019.

4 Center for Reproductive Rights, 2019.

5 Holborow, 2018.

6 Kirkpatrick, 2005.

7 Reagan 2022, p8.

9 Planned Parenthood, 2021.

10 Peng, 2022.

11 Open Access Government, 2022.

12 Karnowski, 2022.

13 Belluck, 2022.

14 Mahdawi, 2022.

15 Centers for Disease Control and Prevention, 2019.

16 Tolentina, 2022.

17 Rosman and Cherelus, 2022.

18 Orr, 2017, p43.

19 Foster, 2020, pp109 and 123.

20 Foster, 2020, p151.

21 Hoyert, 2022.

22 Harris, 2022.

23 Hinton, 2021.

24 Bopp, 2022.

25 Holborow, 2018.

26 Bernstein, 2022.

27 Bennhold and Pronczuk, 2022.

28 Bologna, 2022.

29 Levin, 2022.

30 Levin, 2022.

31 Tolentina, 2022.

32 Woodward, 2022.

33 Gera, 2022.

34 Foster, 2020, p316.

35 Quoted in Brown, 2019, p98.

36 Supreme Court of the United States, 1973.

37 Ramirez-Feldman, 2022.

38 Brown, 2019, p47.

39 Reagan, 2022, p246.

40 Foster, 2020, p317.

41 Faux, 2001, p316.

42 Brown, 2019, p58.

43 Reagan, 2022, pxvii.

44 Picchi, 2022.

45 Reagan, 2022, pxxii.

46 Faux, 2001, p320.

47 Reitman, 2014.

48 Foster, 2020, p277.

49 Foster, 2020, p277.

50 Guardian, 2022.

51 Aldrich, Bishop and others, 2013.

52 Toobin, 2012.

53 Bassett, 2016.

54 Petchesky, 1986, p245.

55 Aung, 2022.

56 Reagan, 2022, p11.

57 Brown, 2019, p51.

58 Orr, 2015, p111.

59 Brown, 2019, p40.

60 Bloomer, Pierson and Claudio, 2020, p108.

61 Norris, 2022.

62 BBC News, 2019.

63 Walker, 2020.

64 Carlo, 2022.

65 Porter, 2013, p333.

67 Amery, 2020, p7.

68 Saul, 2019.


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