The Abortion Rights Emergency and the Myth of “Protection from the Courts”

By Sunsara Taylor | February 3, 2014 | Revolution Newspaper | revcom.us

For far too long, pro-choice people have looked at the courts in this country as the final “firewall” protecting abortion rights. Pro-choice “leaders” point to Roe v. Wade, the Supreme Court ruling which legalized abortion in 1973, as “proof” of the progressive role of the courts. They love to point out that every time a challenge to abortion rights has gone before it, the Supreme Court has reaffirmed the basic framework of Roe v. Wade. The clear implication is that the courts can be counted on to “do the right thing.”

This is wrong on a number of levels.

First, the right to abortion was not “granted” by the Supreme Court because they suddenly became more “enlightened.” This right was won through the self-sacrificing fight of women and others. Only in the face of the rising tide of protest and overall social upheaval of the 1960s and early ’70s, and only in the face of larger changes in the family and the social role of women driven by the shifting economic position and dynamics of the U.S. in the world, did the Supreme Court grant the right to abortion. Even then, they did not guarantee women's right to abortion, but to a certain scope of “privacy” in this sphere.

Further, over this same course of time, the Supreme Court has repeatedly and increasingly restricted the basis on which this right stood and repeatedly and increasingly expanded the scope of restrictions allowed against abortion. To cite just one potent example: In its 1992 ruling, Planned Parenthood v. Casey, the Supreme Court for the first time ruled that states could restrict abortion at all stages of pregnancy (through things like mandatory counseling, mandatory waiting periods, parental consent laws, etc.) and that abortion could be restricted for reasons other than women's safety. The Court also changed the legal standard for abortion restrictions. No longer would those proposing restrictions be required to prove a “compelling state interest.” Instead, those challenging new restrictions would be required to prove that the restrictions placed an “undue burden” on women's access to their rights.

The recent spate of abortion restrictions nationwide—70 restrictions to abortion passed in 22 states just in the year 2013—must be understood as the flood surging through a crack that the Supreme Court itself has opened and repeatedly widened.

Finally, the most recent indications and rulings from the courts are even more negative, with even more extreme and deadly implications for women than what has been allowed up to this point.

As many readers will recall, in 2013 thousands of people protested in Texas against laws that threatened to close all but five of the state's 42 abortion clinics. Despite this massive outpouring, the laws were passed. One of these laws requires abortion doctors to have admitting privileges at local hospitals. This law (like the others) serves absolutely no medical purpose but would force 12 clinics to stop providing abortions. At first, a federal judge ruled that this law should be blocked while it was being challenged in the courts. But just three days later, a higher federal court (the Fifth Circuit Court of Appeals) overturned this ruling, causing the immediate cancellation of abortion appointments across the state and shutting down abortion services at eight clinics to this day. When yet another emergency appeal was made, this time to the Supreme Court, the highest court ruled in a 5-4 decision to let this outrageous ruling stand. This not only continues to deprive huge swaths of women of accessible abortions, it portends very negatively for how the Supreme Court might eventually rule on these very restrictions and others. The eventual ruling on the hospital admitting privileges law alone has implications well beyond Texas, as clinics across the country face similar restrictions—including the only clinic left in the state of Mississippi and the only clinic in North Dakota!

All this is not to say that what happens in the courts is unimportant or predetermined. It is extremely important that a fierce fight be waged in the courts to protect and expand the constitutional protections for women to access abortion. The point is that it would be delusional to rely on the courts to protect the rights of women, or to restrict the efforts of the people to merely—or even mainly—fighting these attacks in the courts.

Right now, there is a huge fight going on within the ruling class of this system over the degree to which open forms of patriarchal oppression of women and the “traditional family” need to be re-instituted. A powerful section of the ruling class that is grouped around the Republican Party is deadly serious about criminalizing all abortion, attacking science, forcing LGBT people back “into the closet,” and imposing a theocratic form of rule.  Those grouped around the Democrats do not share this full program and make a show of opposing its most extreme expressions, but they are largely paralyzed from really fighting it because they fear the instability this would bring to their system. The deep economic, demographic, political and cultural factors that are giving such initiative to this Christian fascist program and which are largely paralyzing the Democrats are gone into deeply in “A Declaration: For the Liberation of Women and the Emancipation of All Humanity.”

In all this it is important to grasp that the role of the courts is not primarily to safeguard the “rights of the people.” The courts under this system are part of the state apparatus of the capitalist-imperialist system that rules over the people. This system has patriarchy—the systematic oppression of women by men—woven into its foundations, its economy, its culture, and its overall legitimating norms and ideology. It is also a system that is based on exploitation, all of which is protected and codified in the U.S. Constitution (for more on this, read “U.S. Constitution, An Exploiter's Vision of Freedom” by Bob Avakian). The main thing these courts are deliberating today as they consider these new anti-abortion restrictions is how to mediate this fight among the rulers, while maintaining the legitimacy of their system in the eyes of millions.

This is what they were considering back when they first ruled to legalize abortion in 1973, when society was gripped by tremendous resistance and upheaval and the rulers recognized that this system was losing a great deal of “legitimacy” in the eyes of millions who would no longer accept the open subjugation of women. This has been the case since then, as the courts have responded to the growing moves towards Christian fascism among the rulers and the passivity among the people by allowing greater and greater restrictions to abortion. (Think for a minute about how the huge majority of society felt that the murders of abortion doctors and bombing of abortion clinics was illegitimate, but how they then went on to passively accept restrictions on abortion that have affected even more women on an even greater scale when they come through the courts. The truth is all of these attacks on abortion are illegitimate—whether they are legal or extra-legal—but the courts have played a major role in getting people to accept them.) And this is the case today as the courts deliberate over new restrictions that could effectively end abortion access for women all across this country.

The most powerful truth of all is that what humanity most needs is a real revolution to get rid of this system and bring a different system into being. In the Constitution for the New Socialist Republic of North America (Draft Proposal), readers can learn of the concrete vision and policies of a truly liberating society that is dedicated to uprooting and overcoming all forms of exploitation and oppression, including digging up all vestiges of the oppression of women as part of advancing towards a communist world where all of humanity is emancipated. This is possible and we must lift our sights to this and fight for it.

At the same time, and very urgently, it is necessary for pro-choice people to break with the delusion of relying on the courts.

The most decisive factor that the people can affect in defeating these outrageous restrictions on abortion—including in influencing how the courts rule on them—is through building massive and society-wide resistance, fighting for abortion on demand and without apology. Those in power must face a truly aroused and uncompromising population. They must confront a situation where they are forced to calculate whether to back off these attacks on abortion or whether to risk driving even more people to see their utter illegitimacy and the need for another way. The people must be mobilized to stand up together, to get a sense of their collective strength, to lift their sights to a whole better world, and to settle for nothing short of the complete liberation of women. Only in this way can we bring to bear the deep feelings among millions and millions who do not want to see women reduced to breeders and forced to have children against their will. Only in this way can we defeat these attacks and contribute to winning a whole better world.

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