Julie Thomas averts her eyes as she contemplates the future of women’s reproductive rights with John Roberts and Samuel Alito on the Supreme Court.
“I know it’s a when, not an if,” she said of the day that Roe v. Wade, the landmark 1973 Supreme Court decision that affirmed a woman’s right to an abortion, is no longer the law of the land.
Thomas, who works on women’s issues through a variety of groups and organizations in Bloomington and on the IU campus, helped organize the Jan. 22 rally at City Hall celebrating the Roe decision’s anniversary. She warns that the right to choose isn’t the only reproductive right at risk for American women under the “Roberts Court.”
With these two Robertson-Rove disciples on the Court there may well be greater losses in the decades ahead.
“It’s become a contraceptive issue,” Thomas said. “You’re going to be seeing unmarried women being told that they have no access to contraception.”
The Roe celebration drew a crowd of 150 and featured speeches from Thomas and a variety of women’s rights activists and politicians, including City Councilman Andy Ruff, State. Sen. Vi Simpson, and Mayor Mark Kruzan.
A few days after, Thomas shared her fears and hopes on post-Roe America over coffee at the Soma coffee shop. The trajectory of history, she said, suggests the end of Roe.
The erosion of a woman’s right to choose began almost immediately after the Roe decision, she said. In 1976, a law known as the “Hyde Amendment” outlawed the use of federal Medicaid funds to the poor for abortion services.
The last time that Roe withstood a direct challenge was 1992 in Planned Parenthood of Southeastern Pennsylvania v. Casey. In a splintered decision on a variety of issues, the court directly upheld Roe by a single-vote margin, 5-4.
According to papers from former Justice Harry Blackmun, Justice Anthony Kennedy initially voted to overturn Roe but changed his mind before the case was decided.
Alito was on the U.S. Court of Appeals that ruled on Casey. He voted to uphold the government’s power to force a woman to notify her spouse before receiving an abortion.
Sandra Day O’Connor, whom Alito will replace, voted with the Supreme Court majority in Casey, as she has in other 5-4 cases like a 2000 decision to overturn a Nebraska law banning “partial birth abortions.”
Roberts worked as a law clerk for former Chief Justice William Rehnquist, who twice voted against legal abortion, in the original Roe case and again in Casey. Roberts replaced Rehnquist on the court and is often compared to him.
In his first few weeks on the court, Roberts has aligned himself with overturn-Roe Justices Antonin Scalia and Clarence Thomas on a number of cases. Most notably, the trio dissented in the court’s recent 6-3 ruling that upheld Oregon’s assisted-suicide law.
Whether Roberts and Alito end up tipping the balance in many ways is anticlimactic, Thomas said. The erosion of a woman’s right to choose, especially that of the poor, has been implacable over the past three decades since the Hyde Amendment.
It’s not like there is much left to Roe anyway, she said. “The restrictions have been gradual, have come at the state level mostly. … And those state-level restrictions are the ones that have eroded rights to the point that Roe v. Wade is nearly dead. It’s in ICU, and it’s on its last legs. It’s just a sad, sad moment in history.”
That the anti-abortion forces will not stop with Roe v. Wade is also demonstrated by history and their rhetoric, Thomas said. What is little understood, she said, is that Roe was the culmination of years of legal struggles over broader issues of women’s reproductive rights.
Prior to Roe, the Supreme Court in 1965 struck down a Connecticut law that prohibited the use of contraceptives, specifically citing a “right to privacy.” In 1972, the court overturned a Massachusetts law that allowed the sale of contraceptives only to married couples.
“Those are all based on the same premise,” Thomas said. “You throw Roe v. Wade out, you’re throwing that out too. Now you’re saying nobody has the right to contraception. So what’s next, right?”
What surely is next will be continuing debate and legal wrangling over when life begins and at what point in the cycle interference becomes an abortion.
“If you look in a medical text, pregnancy doesn’t occur until the zygote attaches to the uterine wall,” Thomas said. But the anti-abortion movement believes that life begins with the zygote, which forms at conception. Contraceptives like the pill and intra-uterine device prevent the zygote from implanting.
“If they believe that life begins at zygote, they believe those to be a means of abortion,” Thomas said.
Given the historical trend and the apparent certainty that the Senate will seat Samuel Alito alongside Scalia, Thomas and Roberts, Julie Thomas said women’s rights activists are preparing for life in post-Roe America.
“This whole legal debate is really pointless because women are going to do it,” she said. “Women abort no matter what. The question is, ‘Are they going to do it safely?'”
Again, she points to history for guidance, some of it personal and recent, like stories she has heard about women ingesting poisons and introducing foreign objects into the uterus to miscarry pregnancies.
“I mean, women are doing this already,” Thomas said. “It’s not a question of whether it’s legal or not.”
One priority for women’s rights activists will be, as it was in the pre-Roe era, to inform women of their choices and to help them find “clean, sanitary, safe, affordable providers,” Thomas said, like the Abortion Counseling Service of Women’s Liberation, nicknamed “Jane,” did in the early 1970s before Roe.
“We’re going to see Jane, which was in Chicago, come back again,” Thomas said. “And we’re going to see it in every major city.”
But the obstacles will be significant, due to the restrictions that have been imposed through the years on abortion at the state level. The most likely outcome of overturning Roe will be legal abortions in some states and not in others.
“It’s about getting over the borders,” Thomas said. “But that takes money, especially if you’re talking about out of state and you’re talking about a few days time. Those states are going to have restrictions like waiting periods, and that means the women will have to be there a week. That’s a lot of time and money that a lot of women can’t afford.”
Thomas expects the imminent threats to Roe and women’s right to choose posed by Roberts and Alito and possible future Bush appointees will reinvigorate the women’s movement.
“People are outraged about abortion rights, but now that it’s really happening, people are really getting scared,” she said. ” I think the movement will shift into a new gear, I really do. It will be about making demands rather than saying, ‘Don’t touch it.’ We need actually to get back together and start on the offensive again.”
In addition to providing direct services to women Jane-like, Thomas said the movement will also become more political.
“Abortion has always been a political issue,” she said. “But I think it will bring it back up into a real forefront issue, not a corollary issue as it has been in federal and state elections. Not a lot of candidates talk about abortion at the state level. But I think they’re going to have to if Roe v. Wade is overturned. They’re going to have to.”
And picking up the offense will be a more seamless effort post-Roe because of the information base and political infrastructure that have evolved since the 1960s and 70s.
“I was at the million woman march,” Thomas said. “More than a million women, it was 1.1 million women in DC last April. That was just incredible. And for every woman there, there were a bunch that couldn’t make it.”
Thomas, a visiting lecturer at the IU Women’s Studies program, said today’s young women are key to the future. And though few realize it yet, they will be the ones who will ultimately be impacted the most when Roe is gone.
“I would say among the students it’s a sense of, ‘It can’t happen, it won’t happen,'” she said. “It’s a sense of denial.”
It’s a different story for those who have been through the fight, she added. “I would say for women who have been doing this for awhile, the mood is more like a struggle, and it’s a deep struggle, and it’s a real sense of urgency.”
That urgency, she hopes, will spawn a movement for a constitutional amendment that will encompass a range of medical right-to-privacy issues, not just the right to choose.
“I hope for a general amendment to the Constitution that grants individuals the right to make medical decisions, because that would cover so many issues–contraception, abortion, euthanasia, whatever, people’s right to deny feeding tubes if they’re in a coma,” she said. “All of this would fall under one neat little Constitutional Amendment.”