When you poke a beehive, you’ll meet a few angry bees—but when you smash one, you get swarmed.
That’s the best advice I can offer the anti-abortion lawmakers pushing draconian bans on reproductive rights through state legislatures. They may not realize it, but they’re about to get swarmed, too.
Alabama’s extreme anti-abortion ban, the most far-reaching in the country, was passed by 25 older white men. Anti-abortion laws in states like Georgia, Louisiana, Missouri, Indiana and Ohio are similarly popular with a similar crowd.
These aren’t the first attempts by state lawmakers to limit abortion access, but they take the effort to new lows. These laws criminalize abortion, and some punish doctors while others punish patients. Some would require mandatory spousal consent to have an abortion. Some would bar insurance coverage for birth control and abortion. Some would even ban in vitro fertilization or restrict contraception access.
This is bigger than a war on Roe. This is a war on women—part of a culture war to control women’s bodies and force them to carry unwanted pregnancies to term.
This assault on women’s freedom that is not consistent with the wishes of the American people, a majority of whom support abortion. That support crosses party and border lines—there is no single state where a majority of voters do not support abortion rights. It’s also an assault we can not, and will not, allow to continue. The pushback against these laws has been furious and full of fervor: Feminists took to the streets to #StopTheBans; lawmakers at the local, state and national level are fighting back, too.
This fight is meant to head to the courts. Alabama’s anti-abortion law isn’t set to take effect until 2020, but legal challenges brought by numerous groups—the ACLU, Planned Parenthood and NARAL among them—could mean it never comes to pass.
The lower courts will most likely strike down the measure, because it is plainly unconstitutional in the wake of Roe. Should the case be heard in district court, or move up on appeal to the circuit court, or even head to the Supreme Court, at every point those on the bench would decide whether to weigh in on that initial ruling or take a pass. Because of how extreme the latest slew of anti-abortion laws are, it is likely that higher courts will pass—which will mean a lower court ruling barring the law from going into effect would stand.
In this best-case scenario, the women of Alabama would have reprieve from this latest attack on their reproductive rights. But that wouldn’t mark the end of this fight.
While numerous state legislatures continue introducing anti-abortion laws, over 20 cases concerning such measures are also wending their way in the court system—all the way up to the Supreme Court. Anti-abortion lawmakers know exactly what they’re doing: They’re putting legislation in place to stage a challenge to Roe while the Supreme Court is stacked with anti-abortion justices.
Right-wing ideologues know that now is the moment they have been plotting and planning for since 1973. These same right-wing lawmakers, individuals and organizations have been pushing for nearly half a century since to get anti-abortion justices elected and appointed as part of their plan, and in 2016 they voted for Donald Trump—who rewarded them by nominating Neil Gorsuch and Brett Kavanaugh, both known to be anti-abortion, to the nation’s highest court, and filling lower vacancies with similarly right-wing judges.
This is their big chance to defeat Roe—and along with it, the privacy rights of women. But the privacy rights of men are at risk, too.
There is technically no right to privacy written into the language of our Constitution. When Roe was decided, the court inferred a right to privacy—and in its legal reasoning, the Justices attempted to balance a personal right to privacy for women against the interests of the state, one which evolves as a pregnancy advances.
It’s a shame that the Founding Fathers did not identify a right to privacy, along with equality and freedom, for every person into our Constitution. Luckily, there is another way to interpret the Constitution that could make the case for privacy rights even better, and it hinges on one of its most popular claims: “Liberty.”
Some state constitutions have determined that liberty includes bodily self-determination. In a recent 6-1 ruling, the Kansas Supreme Court declared that a woman’s right to an abortion is guaranteed based on the state’s Bill of Rights, ruling that the right to “life, liberty and the pursuit of happiness…allows a woman to make her own decisions regarding her body, health, family formation and family life.”
This logic could become a roadmap for the future: if state courts interpret the life, liberty and pursuit of happiness clause of their state constitutions to include privacy and self-determination over one’s personal decisions about their own bodies, abortion becomes a settled law twice over.
But there’s another roadmap forward—one that ends with a more certain victory. Efforts to force women’s personal choices to conform to laws and intrusions that are not consistent with personal needs will be met with furious resistance. Feminists must show up in the streets and make ourselves heard, and we must turn out in huge numbers next fall to vote out lawmakers intent on eroding women’s rights.
Anti-abortion lawmakers are doggedly poking holes in our rights. They’re insistent on smashing the legal frameworks that guarantee us our freedom. Our only option is to come together in a swarm and fight back.
