The fallout from the US Supreme Court ruling on 24 June that overturned Roe vs Wade, the decision that had guaranteed safe, legal abortions in America since 1973, is still being felt across the country. It was not exactly a surprise, since a draft decision had been leaked in May, but the reaction of many was still one of shock. The provision of abortion was one of the great feminist victories of the twentieth century, and Roe vs Wade underwrote other rights, including to gay marriage and access to contraception. Since the decision Joe Biden, the president, has signed an executive order to protect access to abortion and Congress has passed a bill to protect same-sex marriage at the federal level, though it’s not clear whether the bill will make it through the senate. What does the overturning of Roe mean for progress? And where does feminism go next? The New Statesman exchanged emails about this with the philosopher and feminist Judith Butler, who is the Maxine Elliot professor of comparative literature at the University of California, Berkeley. The exchange has been edited for length and clarity.
Alona Ferber: What first crossed your mind when you saw Roe vs Wade had been overruled?
Judith Butler: I wonder if the overthrow of federal abortion rights in the US belongs to that class of world events we can call both shocking and utterly foreseeable. We saw the gains of the right wing, the politicisation of the evangelical church, its new understanding with the Vatican and its enormous influence on elected and appointed officials. We also saw moderate Democrats easing their support for abortion rights – or backgrounding it – out of fear that it would lose them votes. It became ever more common to hear references to “unborn children” in mainstream media and popular culture, so the conservatives won in their efforts to make the repeal seem possible, even necessary. I don’t agree with analysts who lay the blame for the repeal on feminists or trans people or the deceased Supreme Court justice Ruth Bader Ginsburg. That way of turning against ourselves is too easy and wrong-headed and it keeps us from doing what is most necessary – analysing and defeating the hard right. To do that, we need forms of alliance that make room for stark disagreement. We can move forward fighting, but we must move forward.
[See also: Why Joe Biden failed]
AF: What do people need to understand about the social trends and forces that led to this moment, and what it means for the protection of the hard-won rights feminism has fought for?
JB: Roe vs Wade was decided on the basis of privacy rights, and that meant it was a woman’s private decision to exercise her abortion rights without intervention by the state. Privacy is a complicated basis for reproductive rights. It tends to focus on the individual rather than class, and it foregrounds personal liberty rather than collective freedoms. When Justice Ginsburg established “sex” discrimination as a violation of the constitutionally guaranteed right to be treated equally, she underscored that equality was the basis for feminist legal victories. What if access to certain kinds of healthcare, including abortion, is a matter of equality? If men have adequate healthcare, and women do not, then women, or those who are pregnant, suffer discrimination. Something similar is happening with trans healthcare. If people who are not trans get the healthcare they require, and trans people face discrimination at healthcare facilities, then they suffer discrimination.
Consider, then, that when we say that the denial of abortion rights is discrimination on the basis of sex, we may be saying that sex plays a role in the judgement to deny those rights that is unfair and unjust. We do not need to adjudicate whether the denial of abortion rights gets the sex right – probably not. So it is not on the basis of sex as it is that discrimination occurs. Discrimination makes reference to sex in unfair and discriminatory ways, and the only “sex” that legally matters is the one figured and operative in a discrimination action.
So when some feminists now make claims like, “the patriarchal oppression of women is heavily rooted in our reproductive systems”, it can sound like those reproductive systems are the cause of the oppression. That is muddled thinking, wrong, and does not advance feminist aims. It is the social organisation of reproduction that leads to the conclusion that abortion should or should not happen. The state is claiming that it has interests in the womb, and it is figuring the womb as its province, rather than the province of those who actually have them. It is precisely the anti-feminist forces that figure the womb in that way that we must oppose. Otherwise, we attribute the existence of oppressive systems to biology, when we should be asking how those oppressive systems contort biological claims to their own ends.
AF: In his concurring opinion with the decision to overturn Roe vs Wade, Justice Clarence Thomas implied that other Supreme Court decisions upheld by the right to privacy may also be at risk, including the right to gay marriage. The decision seems like powerful evidence of a backlash to progress on feminism, gender equality and LGBTQIA+ rights. Do you agree?
JB: I think we are witnessing something more serious and dangerous than a backlash. This is a “restoration project” that has as its final aim the reconstruction of an order that some feel has been dismantled by progressive legislation and new forms of inquiry within educational institutions. Not only is patriarchy to be restored, protected against its dismantling, but white supremacy, and exclusively heterosexual marriage. Thomas spoke on his own when he wrote that he thought that the Supreme Court should reconsider now the rulings that prohibited the criminalisation of using birth control or giving advice about it, that prohibited the criminalisation of acts of “sodomy”, or upheld the rights of gay marriage. In his view “due process rights” were badly interpreted to protect freedoms against state intrusion.
What Thomas is calling for here is more state intervention, the curtailing of liberty, or the dismissal of liberty claims in each of these cases. He is also making clear that by curtailing these claims, a restoration of order could be achieved: sodomy would once again become inadmissible; no one would seek an abortion; marriage would once again be an exclusively heterosexual institution.
[See also: The problem of period apps after the end of Roe vs Wade]
AF: Maybe this is completely obvious, but do you think the church is one of the, if not the, main driver of this “restoration project”? Are there other significant drivers?
JB: I would say that white supremacists and Maga (Make America Great Again) Republicans are also waging a war against educational institutions from K-12 [primary and secondary school] through higher education, accusing leftists of inculcating ideology, so we have to understand the attack on movements for racial justice, abortion rights, healthcare justice and legal protections for migrants, support for the gun lobby and the arms industry, as linked with the repeal of Roe. Some of the same arguments are clearly at play.
AF: Campaigners warn that online activity could put people seeking abortion services at risk of prosecution. Do we need to think about the idea of freedom, and indeed of rights, differently given the tech we use today?
JB: Surveillance may well become an issue if states that outlaw abortion seek to make sure that no one crosses the border to secure an abortion elsewhere. But surveillance is, as we know, both state-sponsored and corporate, and it may be that the latter is equally dangerous. In my view, the privacy argument, as important as it is, should not be the primary way to address issues of reproductive equality and justice. We need to show the links between discrimination against women and LGBTQIA+ people on all sorts of healthcare issues, as the Latin American feminists have done. I realise that the law cannot always operate with the same flexibility as social theory, but it is surely time to resituate abortion rights within a strong movement for social and economic justice.
AF: Where do you see hope when you think about what’s next?
JB: Perhaps the most important issue is to make coalitions where we did not think they were possible. I am not saying that those would be easy. But this is a time in which both feminism and LGBTQIA+ perspectives are being censored in educational institutions, where rights that were hard-won are being repealed, and where healthcare is being restricted or denied by both social policy and economic costs. The attack on “gender ideology” across the globe focuses on shutting down abortion clinics; calling feminists “murderers”; there are attacks on teaching about gay and lesbian lives in schools; and attacks on trans health for kids. The attack on critical race studies is but one instance of white supremacy rearing its ugly head, accusing historians and critics of dangerous methods and threats to national security. We are gathered as targets by a well-coordinated Right, so perhaps we should decide how we want to gather, and for what aim. Of course, we have to fight for abortion rights, but once we realise that it is one of many rights that belong to reproductive justice, and that reproductive justice is part of the complex and dynamic struggle for justice, then we are on our way toward imagining a transformative force that would equal and overcome those who promote hatred and inequality.
[See also: Judith Butler on the culture wars, JK Rowling and living in “anti-intellectual times”]