US-JUSTICE-COURT
Abortion rights activists cheer after the U.S. Supreme Court struck down a Texas law placing restrictions on abortion clinics on June 27, 2016. (Mandel Ngan / AFP / Getty Images)

By HEATHER BRADFORD

According to Planned Parenthood, in 2019 there were over 300 abortion restrictions filed across 47 states. Some of these were the strictest since the passage of Roe v. Wade. The most alarming were restrictions, such as the one passed in Alabama on May 15, 2019, which made abortion illegal at all stages and without exceptions for incest or rape. These restrictions were made even more terrifying by the threat of 99 years of imprisonment for abortion providers.

Restrictive laws, like those passed in Alabama and six week abortion bans or “heartbeat bills” passed in Georgia, Ohio, Kentucky, Missouri (eight weeks), and Mississippi have been blocked or delayed by federal judges. But, their aggressive nature sets the tone for the struggle ahead as reproductive rights activists enter a new year and new decade.

An early set-back for reproductive rights this year was the passage of a minor consent law in Florida on Feb. 21. The Florida law requires minors under the age of 18 to obtain written and notarized consent from a parent in order to seek an abortion. It also requires government-issued identification and proof of guardianship or parentage and makes no exceptions for cases of rape, incest, or trafficked youth. The consent requirement can be bypassed by a judge, who can determine if the minor is mature enough to have an abortion. The previous law already required parental notification, but not consent.

Parental consent, notification, or both is required in 37 states. Consent and parental notification laws put youth at risk of illegal abortions, parental abuse, denies their right to bodily autonomy, and creates barriers for youth whose parents may be absent or deceased. It disproportionately impacts immigrants and racial minorities, as consent and notification laws require documentation, such as birth certificates and identification cards. Despite the barriers consent and notification laws impose upon youth, Florida Democrats were divided over the law. Democratic representatives James Bush, Kimberly Daniels, Al Jacquet, and Anika Omphroy voted to support the bill.

Another concerning development in the struggle for reproductive rights is June Medical Services v. Gee and Gee v. June Medical Services. There are two issues at the heart of these cases, which the Supreme Court will hear in March. The first is the issue of admitting privileges, which is part of larger TRAP laws. TRAP laws, or targeted restrictions on abortion providers, are laws passed under the guise of patient safety, but meant to curtail abortion access by imposing unnecessary regulations on abortion providers.

Admitting privileges mean that abortion doctors must be able to admit patients into a hospital near the abortion clinic. Because many hospitals are religious, profit driven, and do not wish to be tied to the controversy around abortion, it can be difficult for abortion doctors to obtain admitting privileges to local hospitals. For instance, doctors at the only abortion clinic in Mississippi were unable to obtain admitting privileges because seven local hospitals refused. Requiring admitting privileges effectively shuts down abortion clinics. The Supreme Court already struck down the requirement of admitting privileges in Whole Woman’s Health v. Hellerstedt because abortion complications are so exceedingly rare (.025% of cases) that admitting privileges are not necessary for patient health and impose a significant obstacle to access. June Medical Services v. Gee revisits the question of whether admitting privileges are constitutional.

The second issue at the heart of these cases is third party standing. Currently, lawsuits against abortion restrictions can be filed by third parties. In 1976, Singleton v. Wulf granted abortion doctors legal standing in challenging abortion restrictions. This has expanded the circumstances under which restrictions can be challenged. For instance, when an Idaho woman named Jennie Linn McCormack filed a lawsuit against the state over its 20-week abortion ban and restriction against self administered abortion, it was determined that because she was not pregnant she did not have the legal standing to do so (even though she was arrested for illegally taking RU 486). However, the lawsuit was able to move forward when brought forth by Dr. Richard Hearn, who as a doctor had standing, and the Ninth Circuit court decided that the criminal charges against abortion patients was unconstitutional. Without third party legal standing, the lawsuit would not have moved forward.

Lawsuits by third parties has been one of the tools that reproductive rights advocates have relied upon to challenge abortion restrictions. Like the recent parental consent law in Florida, Democrats are complicit in this recent challenge to abortion rights. The Unsafe Abortion Protection Act, the Louisiana law at the center of the Supreme Court hearings, was sponsored by Senator Katrina Jackson, a Democrat who is anti-abortion.

Both capitalist parties hostile to women’s rights

Following a tumultuous year of abortion restrictions, President Trump attended the March of Life on Jan. 24, 2020, where he gave a speech in which he claimed that he was the White House’s best defender of the unborn. He was the first sitting president to attend the event. But, in the shell game of U.S. politics, Trump once declared himself pro-choice, even calling himself very pro-choice in 1999 and stating that the issue hadn’t been important to him on the Howard Stern show in 2013. While it is unlikely that he has convictions beyond courting anti-abortion voters, the Trump administration has been undeniably aggressive in its attacks on abortion.

A particularly alarming strategy to reproductive rights activists has been the fact that one in four lifetime seats of federal appellate court judges have been filled with individuals hostile to choice. With standing potentially under attack by the Supreme Court, the strategy of challenging abortion laws in courts may become increasingly limited. But, this should not be the onus of activist strategies to begin with. The lifelong tenure of federal judges and Supreme Court justices should have no place in a democratic society. It generates a sense of dependency on the good will and judgement of powerful individuals and places false hope in electing a Democratic Party president so the positions can be filled with pro-choice judges.

Aside from the aforementioned examples of parental consent laws in Florida and TRAP laws in Louisiana, electing Democrats has not ensured abortion access. Bill Clinton ran for president with the slogan that abortion should be safe, legal, and rare. Hilary Clinton also said, “by rare, I mean rare.” Obama also said he wanted to reduce the number of abortions. Over 1200 abortion restrictions have been passed since Roe v. Wade, each seeking to make abortion rare through restriction. The decades of limits to abortion were not passed by Republicans alone.

Despite the ongoing attacks on abortion access, 2019 also saw the passage of pro-choice protections. In 2019, 29 states and Washington, D.C., introduced 143 bills to improve abortion access. Illinois, New York, Rhode Island, and Vermont passed laws that codified abortion as a fundamental right. Nevada removed pre-Roe laws that criminalized abortion and it also decriminalized self managed abortion. Maine guaranteed that both private and public insurance would have to cover abortion. Massachusetts lawmakers are working to pass the ROE Act, which would guarantee abortion no matter one’s income or immigration status and improve youth access to abortion (ACLU).

It is also important to remember that in response to abortion bans passed in May 2019, thousands of activists took to the streets in protest. Across the U.S., more than 400 events were held on National Day of Action on Tuesday, May 21, with other events spread out across that week. More than 50 organizations were involved with organizing the nationwide events against the abortion bans, which at that time, had passed in Ohio, Mississippi, and Alabama and were being considered in Louisiana and Missouri. While judges are often credited with halting these bans, mass action gives momentum to lawsuits, raises public awareness, shifts discourse, pressures politicians and judges, and is important practice for broader, bolder, revolutionary actions.

Mass action around the world

Abortion victories elsewhere in the world attest to the power of mass action. Between 2000 and 2017, 27 countries broadened the legal grounds for abortion. In 2019, Oaxaca, Mexico, Northern Ireland, and New South Wales, Australia decriminalized abortion.

Another success was in South Korea, where the Supreme Court struck down the country’s 66-year-old abortion ban as unconstitutional. Under the longstanding ban, abortion seekers faced one year in prison and a $1780 fine. Although the laws were over six decades old, they were not enforced until 2005 and this was a specific government response to demographic decline. The fertility in 2005 rate was 1.08, the lowest in the world. This demonstrates the economic function of abortion restrictions in capitalism, which is to force the births necessary for a new generation of workers.

The overturn of these laws was won through the efforts of coalition called the Joint Action for Reproductive Justice (Joint Action), which was established in 2017 and brought together feminist, medical, disability rights, youth, labor, LGBT+, and religious groups. The coalition published materials, told stories, and hosted educational events, which all culminated in the first mass protest in Seoul on Oct. 15, 2016.

When thousands of Polish activists united in Black Protests for abortion rights, Korean activists hosted their own “Black Protest Korea.” Joint Action lobbied politicians and government agencies to take the matter to the Constitutional Court. In 2017, 235,000 people signed a petition to legalize abortion. They also organized a large rally attended by 5000 activists in July 2018. Joint Action also held a daily one person protest outside of the court building. They also held a press conference outside the Argentine Embassy to support legal abortion in Argentina. Another large protest was organized in March 2019 before the court decision. Uniting in a variety of organizations and activists, including labor, international solidarity, and protest combined with legal work helped to make legal abortion a reality in South Korea.

In 2018, hundreds of thousands of women took to the streets of Argentina to demand that the Senate pass an abortion bill. Abortion is illegal in Argentina and can result in a prison sentence. The Argentine government estimates that 350,000 illegal abortions occur in the country each year. The bill narrowly lost, but the activists continue to fight to make legal abortion a reality.

Tens of thousands of abortion rights activists in Argentina protested on Feb. 19, 2020, to once again demand legal abortion for Green Action Day. Events, wherein activists wore green scarves to represent the demand for abortion, were hosted in over 80 locations across Argentina.

The most recent push for legal abortion in Argentina began in 2015, with the anti-femicide movement Ni Una Menos, which mobilized hundreds of thousands of women against violence (including illegal abortion). In 2017, 30 women in Argentina were reported to have died from illegal abortions, so the issue is absolutely a matter of femicide. In March 2019, an 11-year-old girl and rape victim named “Lucia” was forced to give birth via cesarian section after Argentine officials denied her to the right to abortion. She was raped by her grandmother’s boyfriend. A similar situation occurred earlier in 2019 in which a 12 year old girl was also forced to give birth to a baby that later died several days later. Doctors refused to perform an abortion, even though the strict abortion laws in Argentina allow for abortion in the case of rape or potential death of the mother. The green bandanas were also worn during the elections last October to spotlight their demand.

President Alberto Fernandez has vowed to legalize abortion on the basis of public health. Undoubtedly, it would not have been possible for a centrist politician to put abortion on the agenda without the efforts of abortion activists. Likewise, without the demands and efforts of U.S. activists, politicians like Bernie Sanders would not frame abortion as health care nor would Elizabeth Warren claim she would wear a Planned Parenthood scarf to her inauguration. This support of reproductive rights and retreat from the discourse of abortion “rarity” would not be possible without the millions of women who marched in women’s marches or thousands who came out last spring against abortion bans.

The February 1917 revolution, which began with striking women at the Aivaz factory in St. Petersburg and International Women’s Day protests over WWI and the high cost of food, overturned three hundred years of Romanov rule. But, the Provisional Government would not grant women the right to vote nor exit the war. In response, Alexandra Kollontai told women that their rights would not be handed to them. In the summer of 1917, women’s suffrage was won after a march of 40,000 protestors. Another revolution was necessary to secure such things abortion rights, the right to divorce, civil marriage, property rights, public kitchens, day cares, public laundries, maternity leave, and an end to the war. Over one hundred years later, many of these things have not yet been won in the United States.

But, as Alexandra Kollontai advised, our rights will not be handed to us. Neither by judges nor Democrats will these rights be won. They will be won by the strength of the people united in strikes and protest and secured only by revolution. That is the lesson of February, October, International Women’s Day, Black Protests, the Green movement, and the history of all our struggles and victories.