The New Supreme Court Turns on Abortion

By Joshua Daniel Hershfield, 10/20/06

On November 8, 2006, the day after midterm elections, the US Supreme Court will hear arguments in two challenges to the Federal Abortion Ban, also know as the “Partial-Birth Abortion Ban Act of 2003.”  This is happening in the midst of over fifteen states carrying criminal bans on their books that would outlaw abortion with few exceptions.

Do you want these people to be the last judge of the right to abortion?

Chief Justice John Roberts: “We continue to believe that Roe was wrongly decided and should be overruled.”

Justice Samuel Alito: “The constitution does not protect a right to an abortion.”

Justice Antonin Scalia: “On contro- versial issues on stuff like homosexual rights, abortion, we debate with each other and persuade each other and vote on it either through representatives or a constitutional amendment. My job is simply to say if those things you find desirable are contained in the Constitution. Nobody ever thought that they were contained in the rights – in the bill of rights. Which is why abortion and homosexual sodomy were criminal for 200 years.”

The Federal Abortion Ban, if passed, could ban abortions as early as 12 weeks. The Center for Reproductive Rights exposes aspects of the ban: “The law makes no exception for cases of severe fetal anomalies or for the health of the woman. The law does not use medical definitions or describe one specific abortion. Instead, it uses broad language subject to wildly different interpretations that cover steps doctors routinely take in performing abortions in the second trimester.”

The ban has been declared unconstitutional in the past, as of six years ago, and is, according to the Center for Reproductive Rights, part of “extreme and deceptive attempts to prohibit a wide range of safe abortions performed in the second trimester.”

“The law is part of a larger agenda to outlaw all abortions. Nothing has changed since the Stenberg v. Carhart decision. No new facts or evidence have emerged to justify the Supreme Court revisiting this case. The only change has been in the make-up of the Court, with the departure of Sandra Day O’Connor, who was pivotal in protecting women’s personal freedoms, and the addition of Justices John Roberts and Samuel A. Alito.”

Many of us have put faith in the courts to stand as the last bastion of sanity and Constitutional protections, powerful enough to protect us from repressive presidential administrations and incompetent congresses. Currently, though, the courts are filled with right-wing patriarchal fundamentalists like Antonin Scalia, who believe abortion and male homosexual sex are unconstitutional.

The Democratic Party has largely been expected to protect free and safe access to abortion, but now even they, with anti-choice candidates like Bob Casey Jr. of Pennsylvania, Bart Stupak of Michigan, and James Oberstar of Minnesota, are turning their backs on reproductive rights. Hillary Clinton has said that at best abortion should be “rare” and we must seek “common ground” with anti-choice politicians. Howard Dean has praised the Democratic Party for including anti-abortion sentiment saying, “I have long believed that we ought to make a home for pro-life democrats.” Barbara Boxer calls running anti-abortion candidates a “pragmatic choice.” It seems that the Democratic Party is not going to defend the right to abortion after all.

President George W. Bush, on the 33rd anniversary of Roe v. Wade, called in to an anti-abortion rally in Washington DC to encourage the protesters and their “noble goals,” and declared that they were “making good progress.” There is a huge political movement in this country, including politicians, Supreme Court justices, and the president and his administration, to overturn Roe v. Wade and make abortion illegal across the board and they are, in their words, “making”progress.”

Pinning our hopes on a political party that supports anti-abortion candidates is not effective in protecting abortion. As mainstream political and legal means abandon us, where can we look to find a force that will protect our rights? As is the case with issues of civil and human rights, we can look to ourselves.

In defense of our reproductive and sexual freedoms, rights that were fought for vigilantly in the streets for years, we are now called upon to continue that fight. Politicians and Judges should not have the authority to tell us what we can or can not do with our bodies or what medical procedures we are able to receive. We can not limit our struggle to the debilitating terms set for us by the Democrats. We can no longer restrict our actions to those of mainstream political processes, processes that have been corrupted, stolen, and in the last six years, utterly failed us. If traditional methods of change have been co-opted, then we must seek alternative methods. It is time once again to expand our tactics.

Voting with a ballot is not enough. We must vote in the streets, vote with our pens, make our voices heard in every way possible and join together to make one powerful force that defies anybody who would try to bring their authoritarian laws onto our bodies. If we don’t, then the theocratic fascist patriarchs who currently occupy our political structure will send us back to the age of closets and coat hangers. Our elders fought passionately for the right to abortion. It is now our time to decide: will we allow their struggle to be erased, or will we fight again?

Also read:

A Call to Action for the Women’s Movement and Everyone Who Cares About Women’s Lives

With Friends Like These… On Abortion, the Pennsylvania Senate Race, the Democrats’ 2006 Election Strategy, and What Comes Next