It’s been a long time coming, but the moment feels imminent.
Following former President Donald Trump’s appointment of three very conservative Supreme Court justices in four years, the court decided in May to hear a case involving a Mississippi law that bans nearly all abortions after 15 weeks. That likely means the court will soon overrule, or seriously weaken, Roe v. Wade, allowing states to completely outlaw abortion.
If Roe is discarded, at least a handful of states will surely do so, many by imposing criminal penalties on doctors who perform abortions—and even on women who obtain them.
The abortion rights debate has been relatively muted recently, a kind of calm before the Roe-reversal storm. This is in part because, despite significant erosion of abortion access by the courts, the procedure remains relatively available—albeit only to women who live in states with comparably unfettered access, or who have the means to jump through the hoops needed to get an abortion and can pay for it either out of pocket or with private insurance.
Controlling Women, a new book by Kathryn Kolbert and Julie F. Kay, two leading legal authorities on reproductive rights, aims to revive robust discussion of reproductive rights—and not a moment too soon—by making clear just how much is at stake in whether abortion remains legal.
Kolbert and Kay describe the abortion debate as “an embodiment of the conflict between traditional and more modern concepts of gender roles.” Noting that the debate has historically been framed by anti-abortion advocates, the book argues persuasively that it is not really about women’s rights versus fetal rights or women’s health or even preservation of life, as those advocates purport.
For example, abortion foes typically oppose the Affordable Care Act, which expanded reproductive, prenatal and maternal health care; they also often favor capital punishment, which is anything but “pro-life.”
Instead, as the title page of this book aptly announces, opposition to abortion is, at its core, about controlling women, specifically “controlling when and with whom sex is appropriate, and when and with whom one has babies.” The consequences of this view are profound: They include cutting off access to safe abortion and even birth control, which can result not only in unwanted births but also in limited employment and other opportunities. All of this falls most harshly on poor women and women of color.
This article originally appears in the Summer 2021 issue of Ms. Become a member today to read more reporting like this in print and through our app.
It’s a sign of our times that Controlling Women takes as a given that Roe will soon be overruled or completely gutted.
Though the book went to print before the court accepted the Mississippi case, there is widespread recognition in legal circles and in the press that the 15-week ban at issue will most likely be upheld. Whether the court scuttles Roe in that case or in a subsequent one, we should be terrified of the even more draconian restrictions and total abortion bans—with criminal penalties—that hostile state legislatures and future Congresses will be able to enact once Roe is overruled.
Kolbert and Kay have been preparing for this moment for decades. Most people know that the courts have steadily eroded access to abortion by upholding partial restrictions, but many do not know that for decades, beginning in the Reagan administration, the Supreme Court has regularly been asked to reverse Roe outright. Kolbert personally argued two of those cases: Thornburgh v. American College of Obstetricians & Gynecologists in 1986 and Planned Parenthood v. Casey in 1992. She and Kay, together with their renowned colleague Janet Benshoof, helped preserve in those and other cases the core right to abortion recognized in Roe.
But as courts have increasingly upheld laws that make abortion less accessible, they also have begun thinking about strategies to pursue if Roe were overturned. The heart of this book is the detailed menu of legal and policy changes that Kolbert and Kay propose to help secure women’s reproductive rights in a world without Roe—ranging from a constitutional gender equity amendment to strategies for persuading hesitant state legislators to vote against anti-abortion bills.
Controlling Women seeks to motivate the supermajority of Americans who support Roe to appreciate the imminent threat to abortion rights and, more important, to get them actively involved in restoring universal access to safe, legal and affordable abortion—as Roe intended.
Make no mistake: By withdrawing constitutional protection for abortion and allowing states to outlaw it completely, the courts are poised to fail American women, a failure that will have serious implications for broader gender equality efforts. The road map for abortion activism that Kolbert and Kay provide is one that all of us must follow—with urgency.