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#Overturning Roe - lessons from Ireland on how to fight back. Blog #3

Dr Camilla Fitzsimons (Maynooth University)

Restricting abortion doesn’t stop abortions it just makes them more expensive, harder to access, and sometimes extremely dangerous. Since a near ban was introduced in Poland in 2020 two women have died because they were refused timely abortions. The day before Roe was overturned, an American woman holidaying in Malta was airlifted to a Spanish hospital. She was miscarrying but doctors were prohibited from performing an abortion because of a foetal heartbeat. Sound familiar? Thankfully she survived but this isn’t always the outcome. The Centre for Reproductive Rights estimate as many as 23,000 women and girls of reproductive age die each year from unsafe abortions worldwide. This is because 41 percent (or 700 million) live under restrictive laws.

Abortion has also been happening for as long as people have been getting pregnant. There is evidence of abortions in the historical texts of Judaism, some versions of Islamic doctrine and Catholicism.[1]

It is also very common in fact as many as one quarter of US women will have had an abortion by 45yrs, 59 percent of who are mothers. This bodily autonomy has enabled millions of people to choose when and with whom to have children, if at all. It has allowed women in particular to pursue life goals otherwise denied, to counter decades of discrimination in terms of their social and economic progress and to manage their care burden. Most ordinary people know abortion is a good thing including in the US. Estimates suggest as many as 80 percent of Americans support access. So why do their lawmakers not reflect this?

To understand this contradiction it helps to appreciate when, and why, abortion became illegal in the first place. The first US prohibition was in the 1820s and was introduced to protect women from unscrupulous vendors who were profiteering from dangerous remedies.[1] Moral objections to ending a pregnancy before 'the quickening' (i.e., when foetal movement is felt) didn't exist before the mid 1800s in fact the Catholic Church didn’t take an anti-abortion stance until 1869. It is widely accepted that the main catalyst for change was the professionalisation of medicine. In the US this professionalisation began in 1847 with the creation of the male-led conservative thinking American Medical Association (AMA). The AMA made outlawing abortion one of its principal goals (in part to discredit female midwives) arguing it was both immoral and dangerous. Ricki Solinger explains,

"The AMA took the position that abortion represented a threat to the social order. If women managed their fertility in this way, that would undermine the social arrangements that mandated families in which husbands held power and made all the important decisions."[2]

The AMA were extremely powerful; so much so that by 1900 abortion was illegal across the US except for the rare abortions approved by doctors themselves. The results were catastrophic. Many women resorted to unsafe abortions which resulted in thousands of deaths and tens of thousands of hospitalisations for complications. As was also the case in Ireland in the 1900s and in the absence of widespread contraception, many women endured multiple births which forced them into the domestic realm where they occupied a lower status position in a patriarchal society.

It took over seventy years for the American Supreme Court to provide constitutional protection through its Roe v. Wade (or 410 U. S. 113, 1973) ruling. But just like repeal of the eighth amendment, this original court decision didn’t happen in a vacuum but in response to a feminist-led groundswell for change, something Leslie Reagan (1997, p. 217) describes as “a mass movement for women’s reproductive rights” that developed as part of wider anti-war and civil rights activism. Ricki Solinger also relays “in the late 1960s and early 1970s millions of American women associated themselves with campaigns for reproductive rights – campaigns that were in many ways radically defined”.[4] Aspects of this movement criticised earlier physician-led calls to relax laws (including via the first Planned Parenthood conference in 1955) describing medical reform committees as “insulting and humiliating to women” because of their ongoing desire to be the gatekeepers on a person's decision over their own body.[3] Two groups of note were the Chicago based 'Jane Collective' (est. 1969) and the Californian based 'Society for Humane Abortion' (SHA, est. 1965) whose work has been archived here. The Jane Collective, and the SHA's associate organisation 'Association to Repeal Abortion Laws' didn't just agitate for legalisation, they also provided abortion services. This too was mirrored in Ireland during our own pre-2019 prohibition when the socialist-feminist group ROSA organised the abortion bus which travelled across Ireland providing consultations and pills in partnership with the international organisation Women on Web.

The American grassroots activism described above was the context within which the first laws allowing abortion were introduced in 1967, three years before the AMA changed their position. It is also the context within which, in 1969, ‘Jane Roe’ (a pseudonym), with the support of her legal team, successfully argued the right to abortion despite Texan law only allowing the procedure if her life was at risk. The District Attorney Henry Wade appealed the ruling to The Supreme Court of the United States (or SCOTUS). Wade lost 2-7 with SCOTUS ruling Roe’s constitutional right to privacy extended to her right to abortion. This ruling built on a previous 1965 ruling Griswold v. Connecticut which overturned two laws that banned contraception again because of privacy rights, this time the right to marital privacy. Again there are important historical comparisons with Ireland. It was a similar right to marital privacy ruling in McGee v. The Attorney General that spearheaded the creation of Pro-Life Amendment Campaign (PLAC), the small but highly influential, conservative group that successfully lobbied for a 1983 constitutional ban on abortion for fear Ireland's right to privacy might also be extended to abortion.[5]

Back to the US where there were limits to Roe v. Wade. Although it did constitutionally protect the right to abortion on the grounds of privacy, it also gave each state significant leeway in legislating for abortion. Before the ink was dry on the historic ruling, the anti-abortion movement began to use this part of the ruling to carve away as Roe's victory by using Trap Laws (targeted regulation of abortion providers laws) which feign concern for pregnant people but create the maximum level of disruption possible. TRAP laws resulted in a tapestry of uneven provision across the fifty states of America creating often insurmountable barriers for many people in accessing affordable, legal abortions. There were national anti-choice reforms too. In 1976, The Hyde Amendment was passed by the US House of Representatives. This banned the use of federal funds for abortion for holders of certain insurance programmes including Medicaid thereby disproportionately impacting poorer people especially women of colour who are much more likely to be enrolled in this programme. In 1984, Ronald Regan enacted the Mexico City Policy (or global gag rule) which prohibits overseas nongovernmental organisations in receipt of US funding from providing or promoting abortion outside of strict parameters. Although lifted under the Clinton and Obama Presidencies, Trump extended the global gag rule in 2020, something The Guttmacher Institute describe as part of,

“a clear pattern of attacking sexual and reproductive health and rights, both in the United States and abroad” and “part of a calculated strategy of going after services and systems that benefit critical populations, including women, immigrants, the LGBTQ+ community and many others”.

Although many attempted TRAP laws were struck down, each one was introduced with one eye on a successful Supreme Court appeal that would lead to the end of the Roe ruling. In 2021, Texas implemented Senate Bill 8, or the heartbeat law which effectively banned abortion at six weeks. When this was appealed to the Supreme Court, it was allowed to stand despite clearly violating the constitutional right to abortion. But it was the Dobbs v. Jackson Women's Health Organisation ruling that eventually overturned Roe on the 24th June 2022. It also overturned Planned Parenthood v. Casey arguing both cases were wrong to provide constitutional protection.

This clearly problematic ruling was made by nine unelected US Supreme Court justices, each of who enjoy a lifetime appointment gifted to them by a sitting US president. All five justices who voted to overturn Roe were appointed by Republican presidents; Clarence Thomas by George HW Bush in 1991 and Samuel Alito by George W Bush in 2006. The other three - Neil Gorsuch (2017), Brett Kavanaugh (2018) and Amy Coney-Barrett (2020) were all appointed by Donald Trump. Proving this has everything to do with power and little to do with morality, the once pro-choice Trump thus delivered on a promise he made when debating Hilary Clinton in the run up to his presidential victory. The SCOTUS decision has had immediate negative consequences with as many as half of all states reportedly introducing further restrictions straight away. There are also concerns about ripple-effects across the world. In anticipation of the leaked verdict, Amnesty International's Secretary General Agnès Callamard said,

"Any regression in protection of the right to abortion would not only stand to damage the global perception of the United States; it would also set a terrible example that other governments and anti-rights groups could seize upon around the world in a bid to deny the rights of women, girls and other people who can become pregnant. Overturning Roe v. Wade would become the symbol of a major backlash all over the world, putting recent progress at risk and endangering the health and lives of millions."

This isn't the 1950s and just as was the case in Ireland, mifepristone and misoprostol (the medicines used to induce abortion) will be widely available whether legal or not. But people will die, most likely in hospitals when medical complications arise post 12-weeks. What a scary and totally unacceptable prospect to endure throughout a pregnancy.

Some people are suggesting Americans should turn to the Democrats as the solution. Joe Biden called on the public to 'protect this fundamental constitutional right' and vote for candidates who will codify Roe v. Wade. This means passing a law that would give people the right to abortion without government restrictions. But the Democrats have had ample opportunities to do this in the past both during the Clinton and Obama presidencies. Yes reforms are needed to end the filibuster. This means lifting a rule that allows Senators to debate an issue for as long as they want and which is regularly used to block votes. But why did Obama not do this when he enjoyed a massive majority? And then there's Nancy Pelosi who clings to her power-base by shedding tears for Roe while she continues to support an anti-abortion Democratic candidate.

Again there are parallels with Ireland. Although the Labour Party claimed to be ‘pro-choice’ as far back as 2003, they did nothing to embody this in government. Two years after the death of Savita Halappanavar, Joan Burton, then Tainiste and leader of the Labour Party ruled out a referendum in the lifetime of the government she was a senior member of. It was the Socialist Party TD Ruth Coppinger who introduced the first bill to the Dáil calling for a referendum. As I discuss in my book Repealed, Ireland's Unfinished Fight for Reproductive Rights, actions by Coppinger and other minority TDs were in harmony with Ireland's own mass mobilisations, strikes, artistic protest, acts of civic disobedience and targeted court interventions. Abortion was legalised in Ireland in spite of, not because of the political establishment who only supported the movement when public opinion was overwhelmingly on the side of change.

Despite a resounding endorsement for change in 2018, Irish pro-choice activists continue to fight for reproductive rights. Just 11 out of 19 publicly funded hospitals provide abortion care and estimates are that less than 15 percent of GPs are registered providers. Ireland's abortion law (which never actually mentions the word abortion) is one of the most conservative in Europe and breaches many of the WHO's guidelines on abortion care by including strict gestational limits, a mandatory three-day wait, and highly restrictive conditions post-12 weeks. Shockingly, abortion services are yet to be commissioned in Northern Ireland despite being decriminalised in 2019. Little surprise that the most recent figures from England and Wales measure seven people each week leaving the Island of Ireland to access abortion.

In his concurring Supreme Court opinion, justice Clarence Thomas, an ultra-conservative with credible sexual abuse allegations against him suggested future cases including those relating to contraception, same-sex marriage and even just the legal right to be gay should be revisited. Some people refer to these battlegrounds as ‘culture wars’ arguing global politics has moved beyond economic issues. But the common denominator behind all of these neo-conservative laws is the preservation of the heteronormative family unit, an economic unit where working class households in particular carry egregious levels of unpaid care labour so that the wheels of an unequal capitalist system can keep turning. Other so called 'culture wars' such as Black Lives Matter, Trans Rights and the battle against capitalism’s crusade to ecologically destroy the planet and also all economic issues. As Kristian Niemietz puts it,

"the culture war will not replace economics, because the culture war itself has a strong economic component. Culture warriors may not be hugely interested in what the rate of Capital Gains Tax should be, or on whether or not we should keep the EU’s state aid rules after the post-Brexit transition period. They may not be fascinated by the forecasts of the Office for Budget Responsibility (OBR), or in the modelling of the Institute for Fiscal Studies (IFS). But they are clearly interested in the big picture. They are clearly interested in system-level questions, above all, the question whether we should have a capitalist economy at all, and if not, what we should replace it with."

A lesson for Ireland from the US is to pay attention to the persistence and stealth exercised by the anti-abortion movement. Their staying power and capacity to overturn popular decisions despite being such a small minority is one of the central arguments I make in another blog as to why we must fight to retain full ownership of our National Maternity Hospital. A lesson for the US from Ireland is that affordable, safe, legal abortions can be won, not by voting for the right people then waiting years for them to let you down but by mass mobilisations and solidarity across borders.

If you are in America and you need an abortion contact AidAccess at this link. If you are in Ireland follow this link or freephone 1800 828010.

[1]Kissling, E. A. (2017). From a Whisper to a Shout. New York : Random House Inc. [2]Solinger, R. (2005). Pregnancy and Power: A Short History of Reproductive Politics in America. New York University Press. p. 7 [3] Reagan, L. (1997). When abortion was a crime: women, medicine, and law in the United States, 1867-1973. University of California Press. [4] Solinger, 2005, p. 182 [5] Fitzsimons, C., & Kennedy, S. (2021). Ireland’s Dark History of Injustices Against Women. In C. Fitzsimons, Repealed, Ireland's ongoing fight for reproductive rights. (pp. 45-64). London: Pluto Press

Camilla is an Associate Professor in the Department of Adult and Community Education at Maynooth University, Co. Kildare, Ireland. She has a special interest in critical education and the role it plays in advancing social change.

Posted 29th June 2022

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Jun 30, 2022

Great piece of writing

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