On December 1, the U.S. Supreme Court heard oral arguments over whether to allow or to block a 2018 Mississippi law banning abortions after 15 weeks into pregnancy, without exception for rape or incest. Normally, a law like this would be struck down immediately because it openly violates the Supreme Court's own 1973 landmark Roe v. Wade decision that protected abortion nationwide up until about 22-24 weeks into pregnancy. The fact that the Supreme Court agreed to hear this challenge revealed that it is willing to consider radically curtailing, if not outright ending, the abortion protections established in that Roe v. Wade ruling. Now, the questions and arguments advanced by the outright fascist “justices” who now make up a majority of the court (Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) caused almost every serious commentator who covered these hearings to conclude that they seem poised to take a sledgehammer to existing abortion protections.

A decision from the court on this case will not be issued for several months (probably June or July of 2022).

If the Supreme Court overturns Roe v. Wade altogether, more than 20 states already have abortion bans on the books that will immediately go into effect. But even if the court doesn't completely overturn Roe v. Wade and instead “just” upholds the Mississippi ban in a way that seriously undercuts Roe v. Wade, the Christian fascist movement to criminalize all abortions everywhere will gain serious momentum and far greater legal freedom to do their damage.

However this turns out, tremendous damage has already been done through the fascist arguments that got showcased and further normalized in this hearing. And, the results of a negative ruling will be felt not just by women in this country, but given this country's influence, it will impact women's lives all over the world.

Because there is so much confusion and defensiveness about how central and important women's right to abortion on demand and without apology is, we want to expose and refute the fascist, woman-hating logic of some of the most outrageous arguments advanced by the fascists on the Supreme Court.

1. Fetuses Are NOT People! They Have No Rights and Should Have No Rights!

During this hearing Alito, Thomas, and Kavanaugh all spoke in different ways about the “interests” of the fetus per se needing to be taken into consideration.

We need to get one thing clear. There is, and should not be, any legal concept of a fetus having independent rights. It is a bizarre and harmful concept. The fetus is not a person until it is born and can live/survive outside of the womb of a woman. That’s why we say Abortion on Demand and Without Apology—and that the decision on whether to have an abortion can only be decided by the woman in whose body the fetus is growing.

But really, this talk of “fetus’s interests” and “fetal rights” is just a cover for and distraction from the real issue: THE ENSLAVEMENT OF WOMEN. There is no world in which abortion is restricted that doesn't do grotesque physical, emotional, societal, and psychic violence to women by turning them into incubators, baby-making machines, hijacking their bodies, their safety, their lives, their social standing, their life-long relations and more.

It is critically important to be clear on all this because preparations are already in the works to establish a constitutional legal status of “fetal personhood.” This would provide a fetus—from conception—equal protection under the 14th Amendment and take away the right of a woman to have an abortion (and frankly to use certain kinds of birth control) in all 50 states.

2. The Option of Adoption Is No Substitute for Abortion! Forcing Women to Give Birth and Then Surrender Parental Rights Is a Barbaric Form of Female Enslavement!

Amy Coney Barrett cavalierly made the outrageous assertion that having to carry forward with a pregnancy does not really include much of a burden. Why? There are now “safe haven” laws that allow a woman to relinquish—that is drop off—the newborn at any police or fire station, to be put up for adoption “without penalty.”

She put it this way:

It seems to me that [the argument] focuses the burden much more narrowly. There is without question an infringement on bodily autonomy, for which we have another context like vaccines. However, it doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden, and so it seems to me that the choice, more focused, would be between, say, the ability to get an abortion at 23 weeks, or the state requiring the woman to go 15, 16 weeks more, and then terminate parental rights at the conclusion.

It is not a light matter to force someone to be a mother when they don’t choose to be, and it is no “consolation” to then be able to give the baby away. No matter how you want to prettify this, it is akin to the situation in The Handmaid’s Tale, a vision of women whose main function is to be an incubator for someone else. Beyond the fact that pregnancy involves a danger to the health of the woman,¹ the experience of being forced to carry forward an unwanted pregnancy, to create and then give up a child that one cannot care for and/or did not desire, is emotional torture. Especially in this age of DNA testing and lack of privacy, this wrongfully imposed burden is one the woman will never be able to fully leave behind. On top of all of this, there is the weight of thousands of years of patriarchal social judgment and stigma put on women who are deemed “bad mothers.” And all this not only affects the individual woman coerced in this way, it hangs as a threat over the lives and dreams of all women everywhere.

3. Fundamental Rights Should NOT Be “Left Up to the People”

Kavanaugh argued that what makes abortion so difficult is that it is necessary to “balance” the “interests” of the fetus with those of the woman. Above, we spoke to the reality that fetuses have no interests. Here we want to speak to where Kavanaugh took this argument next. He said that because this issue is so controversial, it should be left up “to the people” of different states to decide.

No! Fundamental rights should not be up for debate!

In this country, we have seen what happens when the question of basic rights is left up to “the people.” This is exactly the kind of  “states’ rights” situation that existed in the South of the U.S. for decades under Jim Crow laws, enforcing legal segregation and depriving  Black people of basic rights.

Besides, whether women have the right to abortion won't really be determined by “the people” in some abstract sense. In the absence of national protections, this will be determined by state legislatures—many of which are already captured by fascists and/or institutionally favor the power of extreme conservatives and fascists. Kavanaugh and his fellow fascist judges  know exactly what they are doing in raising this—giving the green light to tearing the liberty of all women to shreds.

4. Overturning Plessy v. Ferguson (“Separate but Equal”) EXPANDED the Rights of Black People. Overturning Roe v. Wade would EVISCERATE the Rights Of Women.

Brett Kavanaugh claimed, in his Senate confirmation hearings, that Roe v. Wade was “established law.” But on December 1, he blatantly suggested that Roe v. Wade was never correct and therefore he saw no reason that it shouldn’t be overturned.

Kavanaugh buttressed his argument by listing lots of decisions made by the Supreme Court that were later overturned because the Court decided they were just wrong. In particular, he raised Plessy v. Ferguson, a decision made in 1896 that made legal the segregation by race at public facilities and public institutions like trains, buses, schools, bathrooms, and water fountains. This was based on the legal theory that “separate but equal” did not deprive Black people of their rights under the 14th Amendment. This Supreme Court decision led to decades of Jim Crow terror to enforce what was clearly and intentionally unequal, until it was finally legally cancelled, in the 1954 Brown v. Board of Education Supreme Court decision. There is no argument that Plessy v. Ferguson was a terrible decision that should have been overturned long before 1954. However, Kavanaugh, Alito, and the solicitor general of Mississippi were all very duplicitously using this as an argument for overturning Roe v. Wade.

The simple truth is that there is no valid comparison between Plessy v. Ferguson and Roe v. Wade! Plessy deprived a whole section of society of their rights, based on their race, whereas Roe v. Wade extended and protected the rights of women to be full human beings, and to not be forced into motherhood against their will.

Conclusion

The blatant disregard for women as full human beings in all the statements and questions of these "justices" who are bent on overturning these rights should be a wake-up call throughout society. This unprecedented threat against abortion is driven by the fanatical drive to control and enslave women, to tear apart the independence and freedom that access to birth control and abortion has afforded to women. A court and a system that would elevate fascist judges and give credence to the kind of woman-hating logic they put forward is a system that is completely illegitimate and must be gotten rid of. Elsewhere, we write about how this moment of unprecedented danger must be responded to and seized on as part of working to bring this system down and bring a new system into being. Here, in conclusion, we want to point our readers to the reality that there is a Constitution for the New Socialist Republic in North America, authored by Bob Avakian, that lays out the vision and concrete framework for a radically different society that can be brought into being through a real revolution. Importantly, this includes a radically different approach to the fundamental rights and interests of the half of humanity that is born female.