The Supreme Court’s draft opinion quashing Roe v. Wade and leaking Monday night is not yet final. But when the dust settles, American women can conclude that they’d lost the right to abortion in the same way an Ernest Hemingway character said he’d gone bankrupt: gradually, then suddenly.
If something like the leaked draft becomes law, it will not only be the result of decades of campaigning, litigating, and nominating conservative judges by anti-abortion groups and their Republican allies, but also a single decision that would establish a constitutional right. that had inspired abortion rights advocates around the world.
So the advice also raises a question relevant to activists everywhere: Is seeking protection for abortion rights through the courts, rather than building the kind of mass movement that can bring legislative victories, a riskier strategy than it once seemed?
Roe’s surprising politics
It’s hard to imagine now, but at the time Roe v. Wade was decided, in 1973, abortion was not a big deal for the American right, or even for evangelical Christians.
Two years before Roe, the Southern Baptist Convention even voted in favor of a resolution calling for abortion to be legalized. And while both parties were divided on the issue, the opposition to abortion was most associated with Catholics, who tended to vote democratically.
But just a few years later, that had changed. The shift was not driven by abortion itself, but by desegregation. After the Supreme Court ordered schools in the South to desegregate, many white parents removed their children from public schools and sent them to all-white private schools known as segregation academies. After further lawsuits by black parents, the IRS revoked those schools’ tax-exempt status, sparking widespread anger among white evangelical Christians and catalyzing their new role as a powerful conservative force in American politics.
Publicly opposing desegregation was not exactly socially acceptable or palatable to a wider coalition. But it was against abortion. And abortion rights had followed a similar procedural path to Brown v. Board of Education and other civil rights cases, using impact litigation to gain constitutional protections in the Supreme Court to override state laws. So criticizing Roe became a way of talking about “government supremacy,” “states’ rights,” and the need to “protect the family” without actively opposing civil rights or desegregation.
Over the years, the resistance built up more steam. But the right to abortion still seemed relatively secure, especially after the Supreme Court reaffirmed it in 1992 in Planned Parenthood v. Casey. The fact that the right to abortion in the United States remained protected, even in the face of growing political opposition, seemed like a plea for protection through the courts.
Activists in other countries have sought a similar path. In Colombia, Monica Roa, a lawyer for the feminist group Women’s Link Worldwide, won exceptions to the country’s general abortion ban in 2006, arguing that Colombia’s international treaty organizations, and thus its constitution, required exceptions for rape, incest, or endangerment. the life or health of the mother. This year, the court went further in a subsequent case, decriminalizing all abortions before 24 weeks of pregnancy.
Pursuing the issue through the courts has allowed activists to partially circumvent the controversial politics surrounding the issue, said Julie Zulver, a political anthropologist who studied reproductive rights activism in Colombia. “During the peace process, everything became polarized,” she said.
In 2016, the government held a referendum on a peace deal with the guerrilla group FARC. To undermine public support for the deal, conservative politicians, including former president Álvaro Uribe, sought to associate the draft agreement with abortion, gender education in schools and other controversial social issues.
“Once the peace referendum started, it was like, if you vote yes to this peace referendum, you vote to make your children gay, you vote against the nation. You vote against the idea of the nation and the family. And that includes things like women’s rights or access to reproductive rights,” said Dr. silver.
In Mexico, President Andrés Manuel López Obrador has fervently opposed the Mexican feminist movement, which he views as hostile resistance to his populist government. But after years of grassroots organization by the movement, the country’s Supreme Court decriminalized abortion in 2021.
Courts are the catch
But just as Roe’s passage and ability to resist opposition seemed to pave a path to abortion protection, the likely decline now points to a potential weakness of judicial protection: It inherently depends on the makeup of the courts. And over time, that may change.
In the United States, Republican voter opposition to abortion helped fuel a decades-long effort to appoint and elect conservative judges at all levels of the legal system. Today, the result is a conservative supermajority in the Supreme Court that is not only on the brink of overthrowing Roe, but has also swung sharply to the right on other issues, including voting rights.
In Poland, when the far-right nationalist government failed to pass a restrictive abortion law through parliament, it turned to the constitutional tribunal, which was packed with judges friendly to the ruling Law and Justice party. In October 2020, the tribunal effectively enshrined the failed legislation in constitutional law.
Sometimes a lawsuit just gets out of hand. In 2010, many thought that a challenge to Irish abortion restrictions at the European Court of Human Rights could become a Roe for Europe. But the court instead issued only a narrow procedural order.
In the end it can come down to activism. And a pattern has emerged around the world: successful campaigns are treating abortion as part of broader questions of national identity, and relying on sustainable organization by experienced activists.
In 2012, the death of a young woman named Savita Halappanavar in Ireland who had been denied a medically necessary abortion was a rallying cry for the abortion rights movement. In 2018, the country held a referendum to amend its constitution to legalize abortion, which was passed with more than 66 percent support.
As in Colombia, Irish activists tried to view the abortion issue as a matter of national and social identity. But this time, the dynamics were reversed: in Ireland, the most successful identity argument was advanced by the party that favor of abortion rights, with reproductive rights forming part of Ireland’s European identity.
“The frame around Ireland’s abortion rights campaign was about compassion and how Ireland should be the compassionate face of Europe,” said Marie Berry, a political scientist at the University of Denver who has studied the Irish campaign. “That it is more compassionate than the UK as the UK has become increasingly conservative, especially under the Tory government. Being in the EU represents a progressive Europe.”
But perhaps the key to the movement’s success was the combination of that compelling message with the organizational experience of more radical feminist groups. “What shocked me when I was researching there with activists was that actually the organizing knot of the entire abortion rights campaign ‘Repeal the 8th’ came from anarcho-feminist movements, which were more rooted in environmental movements than the liberal women’s rights movement,” he said. dr. Berry. “The bulk of the people who voted for it were obviously not affiliated with the more left-wing organizing nodes. But that was really the heart of the movement that made it possible.”
In Argentina, the Ni Una Menos (“Not one woman less”) movement also combined sustained, long-standing organization with a framework that placed abortion rights in the broader context of a just society, imagining the lack of access to safe, legal abortion. as only one part of the wider problem of violence against women. A 2018 bill to legalize the procedure failed, but in 2020 the country legalized abortion, making Argentina the largest country in Latin America to do so.
In the United States, on the other hand, legal abortion has been the status quo since the Roe decision in 1973, which made it a difficult target for that kind of persistent mass organization.
“I think the indigenous mobilizing, one of the more progressive kinds of racial justice, Occupy, all kinds of left-wing nodes within those movements, haven’t put abortion at the center of their advocacy because, constitutionally, it’s been more or less a solved problem for years. 70,” Berry said. And for other organizations that focus on the intersection of reproductive rights with race and class, “abortion has always been there, but it’s not the only requirement,” she said.
Centrist organizations and Democratic politicians, on the other hand, have often framed abortion as an issue of unfortunate but necessary health care that should be “safe, legal and rare,” and have focused activism on access issues. That was often vital for women in rural areas or states where the cumbersome regulations had made abortion virtually impossible in practice, but it didn’t generate the kind of massive identity-based attraction that has been effective in countries like Ireland.
And so today, with Roe apparently about to fall, American activists are considering what it would take to build their own mass movement in the style of Ni Una Menos — and what they can accomplish before it’s too late.