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Roe Was Always Weak: Six Steps For Feminists Moving Forward

Women in over half of the country are about to lose their freedom. We saw it coming, but is the next generation of activists ready?

Roe Was Always Weak: Six Steps For Feminists Moving Forward
Map of US states pending abortion laws, via NBC, overlaid with photo of The Handmaid's Tale by Victoria Pickering

The situation is surreal, unreal. In terms of abortion, women will soon be living either in a slave state or a free state—and, as a nation, we may also be facing another Civil War, perhaps another kind of Civil War, one in which we are already fully engaged, on both sides of the aisle aka the Great Culture Wars.

Many feminists with whom I’ve spoken in the last few days fear that if the privacy right or the fundamental personal liberty right enshrined in Roe is overturned, as seems likely, that so too, can the right to birth control, gay marriage, and interracial marriage be overthrown.

In 1973, feminists were not happy that Sarah Weddington, the lawyer who crafted Roe, had decided that abortion was included in the Constitution as a privacy right. Under Roe, the right to an abortion was viewed as protected by the due process clause of the Fifth Amendment, which restricts the federal government from encroaching upon a woman’s right to privacy—and by the Fourteenth Amendment, which restricts the states from violating the realm of personal liberty. This would apply if a woman were forced to bring a pregnancy to term against her will.

Fair enough. But a shaky ground. I kept saying, as did many, many others, that Roe should have been argued under the 13th Amendment which outlawed slavery and which states:

“Neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

It’s clear, at least to me, that a forced and unwanted pregnancy is a form of slavery with life-long medical, psychological, economic, and social consequences. Forced pregnancy also reminds me of African slavery in America in the sense that white Masters could rape their female slaves repeatedly, then keep or sell off their children as property. As the great Sojourner Truth said: “I’ve borne 13 children, and seen most all sold off to slavery, and when I cried out with my mother’s grief, none but Jesus heard me! And ain’t I a woman?”

But forced pregnancies also remind me of the fates of unmarried pregnant Caucasian girls in America and in Ireland, who were stigmatized for their pregnancies, denied abortions, forced to go through with that pregnancy, and then forced to surrender their child for adoption. Supreme Court Judge, Amy Comey Barrett, has suggested that pregnant women who are denied an abortion—just “woman up” and do likewise.

“In 1973, feminists were not happy that... abortion was included in the Constitution as a privacy right.”

But I have heard too many stories, interviewed too many adopted children, as well as too many birthmothers who were forced to give up their newborns, to believe that most adoptions have happy endings; some do, many do not. Perhaps the trauma of being separated from one’s birthmother actually contributes to life-long suffering for the adopted child, even if admirable adoptive parents are in the picture.

But back to our future. What’s next? Treating abortion as homicide, criminalizing it, jailing women for having one? Jailing those who assist them as well? Creating vigilante groups who will hunt down such criminals for money, like bounty hunters?

Such ideas and such pending legislation are actually in the works in what I’m calling the slave states. Ironically, coincidentally, unsurprisingly, so many of these modern-day slaves states were once enslavers of Africans, for example: Mississippi, Texas, Alabama, Florida, Kentucky, Louisiana, and Missouri.

Even as I’m writing this, legislative attempts are being made to restrict access to the “abortion pill” and to abortion counseling via telemedicine. Such a law was just signed by Governor Kristi Noem in South Dakota.

Really, what’s next? Burqas? Stoning? Are education and employment also to be forbidden to women?

My generation of feminists had it easy—we had an opening in history, a doorway through which we walked, Noras all, leaving our Doll Houses behind, and finding each other magically transformed into Wonder Women. Where had we been hiding all our lives?

We had it easy. For example, we did not have to struggle long and hard—let’s say, for one hundred years, the time it took to obtain votes for women in America. We came into our own in the mid-to-late-sixties. By 1970 abortion was legal in New York State and in 1973, it became the law of the land in Roe v. Wade.

However, probably the day after Roe passed, (if not sooner), our opposition girded its loins and never, ever stopped in its battle to remove reproductive freedom for women. Lawyers, pastors, priests, politicians, civilians, all fought non-stop to limit funding for poor women. Propaganda poured forth which depicted women who were having abortions, as well as their providers, as “killers, murderers, racists, Nazis, witches, and Satan’s spawn.” Fired up, funded, empowered, enabled, unleashed, True Believers issued death threats against doctors and providers; some even murdered doctors. Clinics were impoverished. Many were forced to close. Lawsuits galore were launched—and the most horrifying harassment of patients as they entered clinics got underway.

“Our bodies are our bodies. They don’t belong to the State of New York. They don’t belong to the United States of America. They don’t belong to the ayatollahs on the Supreme Court.”

I was an up-close-and-personal witness to the ugly tactics outside one abortion clinic in Queens, New York, founded by my friend Merle Hoffman in 1971. The scene was truly indescribable. It’s one thing to exercise one’s right to free speech—I favor more of that—but it’s quite another thing to intimidate, shame, bully, yell, curse, and invade a frightened patients’ personal space with twisted faces and warnings about damnation.

This is why volunteer escorts were needed to literally protect the patients from being on their own during such a traumatic moment, if not physically knocked right down.

This is not the worst of it. A former Attorney General of New York State finally brought a lawsuit against specific members of this Righteous Harassment Brigade. Everything was documented. It was clear that the holy harassers were breaking NYS law. Nevertheless, this lawsuit was lost essentially, as Hoffman says, “because the judge, a Republican appointee, was anti-abortion.” She tells me:

“How dare three judges who are sitting as a result of a flawed and partisan process tell millions of Americans what to do with their bodies? We will resist in any way possible. Even Roe is heavily oriented to doctors. It’s the doctor’s choice as much as the woman’s. The government shouldn’t regulate what doctors decide is best for the patient. It is a woman’s right to control her own life, to determine her life’s course.”

Former Congresswoman Elizabeth Holtzman, Esq., at a Mother’s Day rally said:

“We’re not going back to the 16th century. We’re not going back to the time that women were the property of their husbands…Our bodies are our bodies. They don’t belong to the State of New York. They don’t belong to the United States of America. They don’t belong to the ayatollahs on the Supreme Court.”

Both sides have powerful bottom-line points about which they are very passionate. The Right-to-Lifers honestly, truly believe that abortion is murder—or at least, the murder of a precious, God-given potential human life. A sonogram of a three month old fetus looks recognizably human. But Lifers care more about a pre-born fetus than they do about the child once it is born—or about the lives or deaths of the women who choose to make such a wrenching but independent choice.

The pro-abortion aka pro-choice side knows that if abortion is illegal or very difficult to obtain that many women will be maimed or will die as they did in the past; and that without the right to control our bodies, we cannot control or plan any other aspect of our lives. It would be back to the kitchen, the nursery, and the “traditional male dominated family”—the very institution that many Lifers fear is being lost, but the very institution that feminists have exposed as sometimes fraught with domestic violence, rape, incest, and all manner of child neglect and abuse.

Frances Beale, the author of the pioneering 1969 pamphlet “Double Jeopardy: To Be Black and Female” said it clearly: “The overthrow of Roe v. Wade equals the murder and assassination of women and that’s something that I feel in my heart will happen again.”

Going forward, what is to be done?

First, while I respect demonstrations and rallies, I honestly do, and have participated in my fair share of them—if they command anything less than the number of people that Black Lives Matter was able to muster; and if they only take place for a few days, not for many months, it will be a mere blip on the screen of national consciousness.

Second, we must settle in for a very long haul of raising funds to help elect politicians at the state level, as well as to Congress and the Senate, who are absolutely committed to women’s abortion rights and, for that matter, to the Equal Rights Amendment as well. This is trench/grunge work. It is not “sexy.” It is not necessarily “enjoyable.” One expresses oneself through long-term service to the cause, not by expressing ourselves joyfully, angrily, at a rally, and then going home.

Majority Leader Chuck Schumer has confirmed that the Senate will be voting this week on the Women’s Health Protection Act “to protect abortion rights.” According to The Feminist Majority, the House has already “passed (this Act) which codifies Roe v. Wade and makes abortion legal nationwide.”

“We must raise funds to cover the transportation and lodging costs for women who must travel from a slave state to a free state.”

I somehow doubt that Schumer will be able to muster the necessary votes but I’d be happy to be wrong.

Third, we—you—the younger generations—must also settle in and raise funds for countless, endless lawsuits to counter of pre-empt the legislation in the wings waiting to strike down women’s freedom even further.

For example, New York State Assembly Member, Linda Rosenthal, has just introduced two pieces of legislation A.9687 and A.9718 which will “protect any medical provider who, acting in compliance with New York State law and within their scope of practice, provides an abortion or reproductive services to a person traveling from a state where abortion is illegal, against any medical malpractice claims or professional discipline related to such services.” Rosenthal says:

“(Although abortion is legal in NYS) abortion and health care providers remain vulnerable to attack from extremist state houses so hell-bent on controlling women’s bodies that they are reaching far beyond their state borders to criminalize abortion and punish those who perform or undergo one.”

NYS Governor Kathy Hochul, stated that: “We want people to feel like this is a safe harbor. Come to New York. This is the birthplace of the women’s rights movement. We fully anticipate that people will travel here.”

New York State Attorney General Leticia James and other state lawmakers just introduced legislation to create a new program within the state Health Department to increase funding to abortion providers. James well understands that out-of-staters seeking abortion services is “expected to skyrocket.”

Such elected officials in every state should follow these leads. They will all need our support. Many of us should become them.

Fourth, we must raise funds to cover the transportation and lodging costs for women who must travel from a slave state to a free state. We must also organize to offer our homes to such women.

Fifth, we might consider the pros and cons of making monthly visits to our doctors for what we called, back in the day, “menstrual extractions.” We would be rid of many days of menstrual bleeding—and if, by chance, we were pregnant, we would never even know it.

Sixth, I always liked Dutch doctor, Rebecca Gomperts’ idea, of Women on the Waves. Gomperts founded a fully-outfitted hospital ship floating beyond territorial waters in the vast, blue sea, and where (illegal) abortions could be performed by competent doctors. I don’t know where she is now—but I am imagining just such a ship dropping anchor off the requisite number of miles off the coast of Louisiana or Mississippi.

I am such a romantic.

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