Gordon Campbell on the Roe v Wade aftermath

Abortion rights image

Now that the right of US women to abortion (formerly protected by Roe v Wade) has been abolished, the important role of medication-induced abortion will come even more to the fore. Already, research by the Guttmacher Institute reproductive rights centre shows that over half of US abortions are obtained by medication.

According to the US Food and Drug Administration and the World Health Organisation, the abortion pills can be safely self-administered at home within the first ten weeks of pregnancy, rather than via a surgical procedure carried out in a bricks-and-mortar abortion clinic. Obviously, this medication option improves access to abortion for women living in remote areas chronically short of abortion providers – and also for women unable to take time off from work, or who otherwise cannot afford the expense involved in travelling to where the procedure is legal and available.

Briefly… During those first nine or ten weeks of pregnancy, a combination of mifepristone (aka RU-486) and misoprostol has been found to result in the safe termination of pregnancy. Beyond 12 weeks, the WHO recommends that medical abortions be supervised by a GP or specialist.

The US states that had draft anti-abortion laws waiting in the wings for the Supreme Court ruling can be expected to pass new laws to outlaw medication abortion entirely, or to severely restrict the availability of the pills. So… Will US women (a) be allowed to travel to procure an abortion in states where abortion remains legal, and (b) will they be allowed to have the abortion pills mailed to them from out of state?

At this point, the rights of women to travel will not be affected by last week’s Supreme Court decision, which was written for the majority by Samuel Alito. In his concurring decision, Brett Kavanaugh said that the travel rights of US women seeking an abortion inter-state will not be impeded. (However, that remains to be seen.)

As for mailing the pills… Reportedly, the law that prevails is the one in the state receiving the mail. i.e. it would be illegal to mail abortion pills into a state where abortion is outlawed. However, it is likely the pregnant woman would still (legally) be able to travel into a state where abortion is legal, have a tele-medical consultation there, and have the pills mailed to her at an address within the same state.

This rigmarole of compliance for a tele-medical abortion is outrageous, of course. Yet it might help to reduce the pressure of demand that is now going to inevitably fall on abortion clinicians in the minority of states (eg New York, California) where abortion will remain legal.

Footnote: In New Zealand, the access to medication-induced abortion was widened in October 2021, in line with Treaty obligations to remove some of the identified barriers of timely access to abortion services for Maori, for those on low incomes, and for those living in rural areas.

Among the advances: Since early October 2021, GPs and nurses have been allowed to dispense abortion pills; the requirement for an ultrasound check on gestational age has been scrapped, making it more possible for women to get the abortion pills in time; and people can now refer themselves to an abortion provider. Beforehand, they had needed to be referred by medical practitioners.

Moreover… In April, the new decide.org.nz national abortion telehealth service went live, and this helpline site has expanded the public’s access to advice and to referral information about abortion providers by region, including – for example – this very useful comparison sheet about the pros and cons involved in choosing between surgical and medication abortion procedures.

In passing, it should be noted that the assurances currently being given by Christopher Luxon that an incoming National government would not revisit the 2020 laws that de-criminalised abortion does not necessarily extend to the measures I’ve just outlined. These measures have been put in place after Parliament last addressed the abortion laws in 2020, and they have been adopted to remove some of the subsequently discovered barriers of access to information, and to abortion procedures.

Would, for instance, a National government want to revisit the ability of nurses and GPs to prescribe abortion pills introduced last October? Would it want to re-institute the mandatory ultrasound measure of gestational age? Is National happy with the current content and role of the decide.org.nz website or will it be reviewing its content, with a view to including more explicit anti-abortion and adoption service messaging?

After all, it is worth keeping in mind that the majority of the MPs that comprise the National caucus strongly opposed the 2020 de-criminalisation of abortion. Nineteen MPs in the National caucus voted for de-criminalisation, but 35 voted against it, with one MP absent. (Labour : 37 voted for, and 19 against.)

Given that only three years ago, this conscience vote motivated nearly two thirds of the National caucus to vote in favour of continuing to treat abortion as a crime, can we really have any confidence that National would refuse to act as conscience dictates, should voters ever give National the power to put things “right”?

The abortion “ dilemma”

Abortion is commonly depicted as posing a complex moral dilemma. Arguably, this is the case only if one treats the issue as being to do with ‘life’ in the abstract, and where the rights and concrete experience of the woman bearing the fetus are reduced or ignored. As the late social critic Ellen Willis wrote over 30 years ago, “Public concern over abortion focusses almost exclusively on the rights of fetuses; women and their bodies are merely the stage on which the drama of fetal life and death takes place.”

The abortion “ dilemma” also happens to be a relatively recent phenomenon, especially in a debate that has become dominated by what was or wasn’t in the minds of the 55 men who wrote the US Constitution in 1787, and who had it ratified at gatherings comprised overwhelmingly of men.

Yet for the historical record, it is worth noting that the Pope did not come out publicly in support of fetal rights until 1869, and even then he condemned abortion not at conception, but only after “ ensoulment” had taken place – which, supposedly, took place after 40 days gestation for male fetuses, and eighty days for females.

Moreover, as the US journalist Laura Flanders pointed out years ago in The Nation…. Between 1860 and 1920, the majority of US physicians commonly preferred to perform a craniotomy that involved the crushing of the fetal head, rather than risk a Caesarean section, in situations where the life of the mother was at stake. Not much sign of a moral “dilemma” evident in that decision process.

In fact, much of the 19th century impetus for the anti-abortion movement had come from (a) Protestants wishing to combat the high rates of reproduction fearfully observed among Irish Catholic migrants and (b) from the desire of an insecure US medical profession to cement its status by displacing midwives (who had commonly helped women to procure abortions) from the delivery of healthcare. In short, the history of abortion is not one of a timeless moral dilemma that has been debated down the ages, but of an untidy swirl of changing socio-political priorities and medical fashions.

No doubt, fetuses are alive, and are biologically human. But as Willis added, fetal rights can only be treated as paramount if these accumulating cells in a fertilised egg are treated as having equal – or superior – rights to the bodily autonomy of a woman with feelings, self-consciousness, a personal history and social bonds.

Therefore, the place for the moral debate to start, Willis suggested, was not with life in the abstract, but with the concrete fact that a fertilised egg develops into an infant inside the body of the woman who shelters, nourishes and expels it – and with all of the physical and emotional demands that this entails along the way.

For any society that claims to respect the rights of the individual, Willis argued, the key question is whether it can be moral under any circumstances to force a woman to bear a child against her will. Her conclusion was that no individual – and certainly no fetus – has an ‘essential right’ to make use of someone else’s body (let alone in such an all-encompassing fashion) without that person’s consent.

In its wisdom though, a 6-3 majority of the US Supreme Court has just decided the exact opposite. A court that refused to allow Big Government to enforce the wearing of masks during a pandemic has ruled that state legislatures must be granted the power to force women to allow their bodies to be taken over and utilised against their will, for the purposes of procreation. (In essence, the Court wants no US woman to be allowed to have sex, unless she is also willing to procreate.)

Under such reasoning, it would plainly be deemed intolerable for women to ever be allowed (a) to decide what lives they will harbour and (b) what lives they will be welcome into the world, and into their primary care for the next couple of decades. If it were men who were being asked to sacrifice to the same degree in the name of life in the abstract, the fetus wouldn’t stand a chance. Not for a heartbeat.

If women cannot have free access to contraception and to abortion, Willis concluded, “We can never be free, because biology makes us constantly vulnerable. Simply because we are female, our physical integrity can be violated, our lives disrupted and transformed at any time. Our ability to act in the world is hopelessly compromised….”

The Supremes verdict:

Samuel Alito’s rationale for scrapping Roe v Wade rests on two false premises (a) that there is no explicit mention of abortion rights in the US Constitution, so therefore the Roe v Wade reliance on abortion being an implied privacy right conveyed by article 14 of the Constitution was always in error and also (b) to qualify for constitutional protection, abortion would have had to have been grounded in US practices and traditions.

In Alito’s view, it wasn’t. He’s wrong about that. As I’ve set out above, abortion has always been a significant thread in American lives, laws and traditions. Even as the US Constitution was being written and ratified in 1787, a very popular medical almanac of the day – Culpepper’s The English Physician – was featuring a range of abortifacients for the edification and the benefit of its readers. Abortion was always there. Men just didn’t notice it, or take it seriously.

In reality, Roe v Wade was carefully argued by Justice Harry Blackmun in his 1973 majority opinion. The right to abortion was found to be consistent with other rights developed in the past 150 years, and worthy of similar constitutional protections, under article 14. Blackmun also found the right to abortion to be consistent with other contemporary precedents, such as the Griswold ruling of 1965 that established the right of Americans to buy and use contraceptives.

True, such rights were not overtly mentioned by the group of 55 men who wrote and set the ratification process in train for the US Constitution 250 years ago. The social climate for women’s rights and interests was little better in the early 1870s, when article 14 was being ratified.

All of the subsequent and related rights – to contraception, to same sex marriage, to sexual preference, to interracial marriage, and to de-segregated schooling- now have to be regarded as being in peril, thanks to Alito’s line of reasoning. The Supreme Court majority, as Bloomberg News columnist Noah Feldman wrote on the weekend, “has repudiated the very idea that America’s highest court exists to protect people’s fundamental liberties from legislative majorities that would infringe on them…”

The legitimacy of the modern court depends on its capacity to protect the vulnerable by limiting how the majority can infringe on basic rights to liberty and equality.The Dobbs majority not only takes the court out of that business. It holds that the court should never have expanded the protection of liberty and equality in the first place.

True. Yet let’s face it, the Supreme Court has been hurtling down this path for over a decade. Its overt politicisation goes back at least to when Antonin Scalia swayed the court to interpret the election outcome in Florida in a way intended to throw the 2000 election to George W. Bush.

Rather than intervene as a check and balance to protect minority rights, the Roberts-era Supreme Court has been systematically stripping those rights away – by gutting the 1965 Voting Rights Act, by endorsing Republican gerrymandering, by repeatedly ruling to erase the distinctions between church and state, and by removing the fetters on Corporate America’s ability to buy elections. The past 70 years of accumulated checks upon majoritarian power are now being targeted, and demolished by an extremist court.

Footnote Two: Ironically, the “originalist” ideology that Alito and his colleagues have used to justify the current Court’s rulings was actually developed by Scalia and his acolytes as a check on the alleged judicial excess by liberal activist judges. The “ originalist” impulse – hey, if it’s not explicit in the Constitution, it shouldn’t exist – is now being used as a club by activist conservatives to beat minority rights to a pulp. It is worth repeating just how bizarre it is for any modern Court and society to adopt such an ideology:

The original Constitution, written by white men, did not provide for the right to vote for women or black people, or the right to marry across race or gender lines, or the right to obtain and use contraception, or a child’s right to go to equal schools.

In 1787, none of that malarkey existed. So, let’s dial the clock back to the time of the Founding Fathers. Let’s Make America Great Again!

Footnote Three: Originalism – and Alito’s rationale for scrapping Roe v Wadewould have been alien to many of the Supreme Court’s greatest minds, such as Oliver Wendell Holmes Jr (1841-1935)

As a justice of the U.S. Supreme Court, Holmes rejected the argument that the text of the Constitution should be applied directly to cases that came before the court, as if it were a statute. He shared with most of his fellow judges the belief that the Constitution carried forward principles derived from the common law, principles that continued to evolve in American courts.

Meaning, therefore:

The text of the Constitution itself, as originally understood, was not a set of rules, but only a directive to courts to consider the body of the common law when deciding cases that arose under the Constitution. It followed that constitutional principles adopted from the common law were evolving, as the law itself evolved: “A word [in the Constitution] is not a crystal, transparent and unchanged, it is the skin of a living thought…

Roe v Wade was entirely in line with the evolution of the common law that Holmes had in mind. Just how far back Alito and pals now aim to go remains to be seen – but contraception and same sex marriage seem (initially) to be the rights now most in peril. For now, we can only look on in horror. Yet there is little to stop a future centre- right government in New Zealand from enacting restrictions on abortion, once it has been elected.

Those changes would not necessarily involve changes to the existing abortion law. What about the rules on parental consent, on medical privacy (eg the confidentiality between say, a pregnant teen and their GP) on abortion information and on access to abortion procedure? How might these be managed by a future National government? That could be a quite different story. After all, we already know that a thumping majority of the National caucus feel conscious-driven to still want to treat abortion as a crime. The rest of us do not. Except in the exceptional circumstances of very late term abortions, most New Zealanders feel that abortion should be treated as a private health matter to be dictated by the woman’s personal choices.

Thus, there is a legitimate concern about what a possible change of government might herald for abortion rights in this country. In the light of that lopsided 2020 vote by National’s parliamentary caucus, a Health Ministry headed by Dr Shane Reti would seem much more likely to act to restrict women’s access to this vital health service, rather than take any steps to expand it.