The United States Constitution guarantees “equality for all.” That is, unless you happen to be born female. Then, depending on the likely Supreme Court decision, a woman’s body and welfare could well belong to the state. Women have believed for five decades that they have a fundamental right to make decisions about their bodies. That right is now threatened. Women risk being told by a mostly male majority on the Supreme Court that they are second-class citizens.
How tragic that time seems to be running in reverse. Fifty years ago, U. S. women confronting an unexpected pregnancy had few choices. They could either bear an unplanned child (if unwed, “a bastard”) or somehow manage to obtain an abortion, an operation illegal in most U.S. states since the late 19th century. The law did not allow women control over their own bodies.
Before the Supreme Court’s Roe v Wade decision 1973, women wanting to end a pregnancy had the option of finding and paying an abortionist, likely an illegal practitioner. Or they could travel to a country where abortion was legal. In Washington, prior to voters approving Referendum 20 in 1970, that typically meant a flight to Japan. So many women made that trip that at least one Seattle travel agency made a killing. That firm got its start specializing in a four-day excursion: a tour of historic sites, opportunity to sample Japanese cuisine, followed by an overnight abortion and a return flight home. Many women took advantage of that expensive excursion ($1,500 in 1965).
I knew one young wife, mother of three children under six, who scraped up enough money for the abortion excursion and found a relative to tend her children. Although relieved afterwards at not having added to her family’s burden, she regretted that the expense had wiped out their meager savings. Then there was a student friend of mine in Chicago who found herself unwed, pregnant and faced with having to give up her scholarship and drop out of school. She heard a tip that she should contact “Jane,” an underground group that for a nominal price would pick you up on a designated corner and drive you to a back-alley office where you could obtain an abortion. Her call to the Jane Collective worked and she was able to continue her medical studies, vowing that she would use her training to help others.
Thousands of others, many poor and minority women, faced similar choices. Some resorted to self-abortions. There are ghastly stories told by hospital emergency workers who saw the result to those who attempted to end pregnancies by drinking lye or turpentine or using knitting needles or bent coat hangers. Many women who survived botched attempts would never be able to have children.
In the years before Washington legalized abortion, there were dozens of Seattle deaths each year. One particularly grisly one occurred in February, 1967. The body of 24-year-old Raisa Tryiak was found strangled and pregnant, in a Seattle garbage dump. It was the aftermath of a botched back-alley abortion.
How likely are we to go back to those bad old days? That sadly seems likely after Wednesday’s Supreme Court hearing of Dobbs v Jackson Women’s Health Organization, a Mississippi law that seeks to outlaw most abortions after 15 weeks of pregnancy. The fact that the case made it to the Supreme Court — not summarily struck down in light of the decades’ old Roe v Wade decision — is worrisome. Just as unsettling is the Supreme Court’s failure to stay a Texas law that outlaws abortion after six weeks and that relies on vigilante enforcement.
The Justices’ questions at last Wednesday’s oral arguments in Dobbs were hardly transparent. Despite the fact that some two thirds of Americans support keeping abortion legal, the conservative majority on the court seemed headed to overturning Roe outright or at least making it more difficult to obtain an abortion. The conservative bloc first listened to Justice Brett Kavanaugh’s speak about the Supreme Court’s history overturning decisions. The reversals he cited almost all increased individual liberties. Yet he advocates the opposite: “being neutral,” of leaving matters “to the people.” In other words: Leaving abortion law to the majority of states fully intent on taking away a fundamental right: a woman’s right to reproductive freedom. Justice’s Kavanaugh’s rationale is especially galling to those who recall that, during his confirmation, Kavanaugh had duplicitously assured senators that he considered Roe to be settled law.
Meanwhile, Chief Justice Roberts, formerly a swing vote on abortion rulings, seemed headed toward abandoning Roe’s allowing abortion before viability — the point (about 24 weeks) when the fetus can survive outside the womb. Roberts appeared searching for an excuse to justify a compromise –“why would 15 weeks be an inappropriate ban?”
However, the bloc of conservative justices appeared hellbent on overturning Roe entirely, shifting focus away from the courts and onto electoral politics. (Fundamental rights are meant to be so protected that they are not subject to legislative modifications.) They sounded ready to abandon issues of women’s rights to the states and the tumultuous legislatures. At present, that’s where nearly all laws around reproductive rights are made and where, in so many states, it is the only the loudest and most militantly coercive voices that have been heeded.
Should the court overturn Roe v Wade, it will trigger laws in more than 21 states to make abortion illegal. A minority of states, most clustered along the West Coast and Eastern seaboard states will be the only remaining providers. Once again there likely will be rich women who will be able to take advantage of traveling to obtain abortions while, tragically, thousands of poor and minority women will be even more adversely affected.
With the specter of Roe being overturned or severely altered as soon as June, Washington organizations and officials are bracing for an influx traveling to this state for abortions. Our state has some of the strongest laws protecting abortion in the country — no requirement for a 24- or 72-hour waiting period and no spousal or parental consent. Already, Washington providers have seen patients traveling here from Texas. And, if fears are confirmed, there will be an incursion from nearby Idaho and Montana, as well as more distant states.
Deprived of liberty, many women will be left with few options, although medical science has progressed, providing some help in the form of medications that can provide relatively safe home abortions during the 10-15 week period. An outfit called “Hey Jane” will deliver to one’s home an unmarked box of medications for around $250. And already groups of activists are forming post-Roe networks to help defray costs for those deprived of their rights.
For those who believe in liberty for all, it is heartrending that militant activists are so close to possibly overturning a nearly 50-year-old precedent. It is obvious they don’t mind branding the Supreme Court as a blatantly political institution. Justice Sonia Sotomayor warned of the danger, asking: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how that is possible.”