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Roe vs Wade and the land of lost liberty

Fear and frustration grip the US as the ruling that guaranteed abortion rights is overturned. What comes next?

By Emily Tamkin and Katie Stallard

There is a point in the 1995 French film La Haîne, a gritty drama about social divisions and decay in the suburbs of Paris, when one character tells another a story. “Heard about the guy who fell off a skyscraper? On his way down past each floor, he kept saying to reassure himself: ‘So far, so good… So far, so good… So far, so good.’ How you fall doesn’t matter. It’s how you land.”

The US is similarly in free fall. On 24 June the Supreme Court overturned Roe vs Wade, the 1973 landmark decision that guaranteed the right to an abortion. There is no reason to believe that the stripping away of constitutional rights will end there. The decision to overturn Roe was a watershed moment, the culmination of 50 years of work by the anti-abortion movement, made possible by a court stacked with right-wing justices who have long dressed up their political and religious preferences as constitutional mandates.

In the hours after the decision was announced, anti-abortion activists held euphoric dance parties in the street outside the court in Washington DC. Young women in “I am the post-Roe generation” T-shirts shrieked with joy as they posed for celebratory photographs and clasped hands in prayer outside the court. But as the day wore on and the self-proclaimed victors left, large crowds of women and men took their place, united in raw anger and disbelief that a constitutional right had been taken away. “Guns have more rights than we do,” one woman yelled. Others chanted, “My body, my choice,” and, “F*** this court.”

[See also: Leader: The American berserk]

“We knew that the court had no respect for the constitution or any of our laws for a long time,” Grace Long, a 25-year-old activist, told the New Statesman while protesting outside the court. “This is yet another reminder that the court is completely illegitimate.”

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It’s a view that’s widely shared. The majority opinion in Dobbs vs Jackson Women’s Health Organization, the case that overturned Roe, was written by Samuel Alito, a justice nominated by George W Bush – who was handed the presidency in the first place by a Supreme Court decision. Another justice, Clarence Thomas, wrote his own concurring opinion arguing that the court should also reconsider the cases that protect the right to contraception and same-sex rights including marriage. Thomas’s wife, Virginia, has been summoned by the congressional 6 January select committee for her alleged part in the attempt to overturn the results of the 2020 election.

The three justices nominated by Donald Trump also concurred with the decision: Amy Coney Barrett, who was rushed on to the bench in the days before the 2020 presidential election; Neil Gorsuch, who was nominated into a seat that the Obama administration was meant to fill before it was blocked by Republican senators from doing so; and Brett Kavanaugh, who was accused of sexual assault before he was confirmed to a lifetime appointment on the bench. These justices now dominate the institution that has long claimed that it is above politics.

It’s little surprise, then, that even before the decision was announced, a survey by the polling organisation Gallup found confidence in the Supreme Court had reached a historic low. Only 25 per cent of Americans responded saying they had confidence in the institution.

“That we have three people who were appointed by Donald Trump, and [considering] the process that was used to get those people on the court – it’s just incredibly upsetting,” a young woman outside the court, who asked not to be identified, said. “I don’t think there is any way to say that it represents the majority of Americans.”

[See also: The end of Roe vs Wade: what is there left to write?]

In the Supreme Court’s decision, Alito wrote of the “turmoil wrought” by Roe vs Wade. Nowhere does it reflect on the turmoil into which the country will now descend. In the hours and days following the decision, protesters took to the streets in cities across the country, including New York, Chicago, Boston and Los Angeles. In some cases, they were met with violence, with riot police using tear gas to disperse protesters outside the State Capitol in Phoenix, Arizona, on 24 June. The following day, an off-duty police officer was suspended after allegedly punching a woman at a protest in Rhode Island. The Department of Homeland Security has warned of the danger that extremists on both the right and left will stage violent attacks in the coming weeks; government officials, health centres and religious organisations could all be targets.

For many, however, the turmoil will be personal, and it will take place out of sight: in doctors’ offices, in family homes, in rape crisis centres and hospitals. Almost one in five pregnancies in the US (excluding miscarriages) ends in an abortion. It has become a routine medical procedure that saves lives. Yet 13 states have “trigger bans” that will take effect now that Roe has been overturned. Clinics in Texas immediately stopped performing abortions after the decision was handed down. The sole clinic in West Virginia cancelled all of its appointments. In all, 26 states are expected to severely restrict or outlaw abortion in the near future, according to the Guttmacher Institute.

Yet Republicans are still unsatisfied, seemingly intent on further hastening the US’s descent. Some states, such as Texas and Oklahoma, have enacted legislation to encourage private citizens to sue those they suspect of helping others get abortions, turning citizens into tools of surveillance. There are valid fears that forms of birth control such as emergency contraceptives or IUDs, as well as fertility treatments, will be targeted in the next wave of attacks on reproductive choice.

“I do have a lot of concerns,” Jessica Chait, a 31-year-old originally from Oklahoma, told the New Statesman at the protest outside the Supreme Court on 24 June. “Within Roe vs Wade, there were protections for things like IVF and other women’s health matters. So I’m afraid that it’s a slippery slope.”

In the Supreme Court decision, Alito wrote that the authority to regulate abortion should be “returned to the people and their elected representatives”. But the right has already signalled that it is not content merely to let states police people within their own borders. The former vice-president Mike Pence suggested that Republicans should pass a nationwide ban against all abortion. The House minority leader, Kevin McCarthy, suggested he would support passing a nationwide ban on abortions at 15 weeks. Though the majority of Americans are in favour of keeping abortion legal, Republicans in swing states, such as Virginia’s governor, Glenn Youngkin, have said they also intend to pursue limiting access to the procedure.

This single-mindedness, along with the references in Thomas’s opinion, has only deepened fears over which constitutional rights could be stripped back next. “It’s terrifying,” said Grace Long, outside the courthouse. “I’m queer, I’m gender-fluid, I know trans rights… have always been pushed against, but now it feels like we’re never going to have any constitutional basis to fight against that. And I know my right to marry is probably next. I feel for a lot of the gay men in my life, who might be subject to anti-sodomy laws again. It’s all overwhelming.”

[See also: The problem of period apps post Roe vs Wade]

Yet the Democratic leadership seems to be chanting to themselves: “So far, so good… So far, so good…” Its response has not matched the urgency of the moment. The House speaker, Nancy Pelosi, bafflingly responded to the news by reading aloud a poem by the Israeli poet Ehud Manor at a press conference. (“I’ve met his wife,” she explained.) When speaking to reporters, the House whip, Jim Clyburn, called the Supreme Court decision “anticlimactic”. Vice-President Kamala Harris posted a photo of herself to social media watching the news on her plane. And President Joe Biden’s press secretary, Karine Jean-Pierre, told journalists: “If Americans are able to use their voice at the ballot box, bring in more members into Congress that support this issue, then there is movement that we can make.”

But Americans feel that they have made their voices heard. They voted not only for Biden, but also for a Democratic House and Senate – and still their rights are being rolled back. They are making their voices heard by taking to the streets and protesting, demanding for more to be done. “You had 50 years to codify Roe,” read one sign outside the Supreme Court. Critics and activists find it both disconcerting and maddening that the response from many Democrats has been to tell people to vote in November’s midterms, as though that is all they can do.

“Our president should do more,” said a woman outside the court, dressed in a red handmaid’s costume, a nod to The Handmaid’s Tale, Margaret Atwood’s dystopian novel about women forced to bear children. “He should sign an executive order. He should direct Congress to make abortion a legal right. He should do something. He should do anything at this point. Telling us to come out and vote in November is not enough.”

The frustration runs deep through the country. Prominent activists and Democratic lawmakers have asked the White House to act. For example, Biden could call for the filibuster to be abolished by the Senate so that it can pass a federal guarantee to the right to an abortion. Biden could call for Congress to expand the court, adding more left-leaning justices. Congress could, at minimum, restrict the court’s judicial powers. Only around one in four Americans knows that abortion can be administered by pill within the first ten weeks of pregnancy and that these pills are readily available by post; the Biden administration could work to change that immediately. The White House could also move to open abortion clinics on federal land. While Democratic leaders have claimed that many of these options are unfeasible, the alternative – waiting until the November elections, in which Democrats are widely expected to do poorly anyway – is unacceptable.

For what’s at stake is not simply the civil liberties of millions, but the democratic process itself, which only exists insofar as people believe it does. The notion of government of the people, by the people, for the people, only holds as long as the majority believes that government is legitimate and representative. Lawmakers such as Alexandria Ocasio-Cortez, a progressive congresswoman from New York City, have called the decision and the moment “a crisis of democracy” and “a crisis of legitimacy”. A woman protesting outside the Supreme Court on 24 June held a sign reading: “In memory of the women who died before Roe, the women who will die from this day on, and democracy.”

The US is in free fall. It is time for those who have been elected to power to use it, to try to stop the descent. Ultimately, if you fall far enough, fast enough, it doesn’t matter how you land.

[See also: The new era of American darkness]

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This article appears in the 29 Jun 2022 issue of the New Statesman, American Darkness