The Supreme Court on Thursday allowed Texas to ban abortions at six weeks, before most pregnancies are detected. To enforce their compulsory childbirth law, the Texas legislature encourages anti-abortion activists to sue Texans who provide (or give themselves) abortions after six weeks.
To listen to the pundits, you’d think there’s nothing that can be done. But our reproductive freedom is not at the mercy of this unelected panel of anti-abortion justices. In fact, Congress could pass a law making abortion legal and available throughout the United States, and there’s not much the Supreme Court or the Texas legislature could do about it.
The Women’s Health Protection Act, which makes it illegal for states to restrict abortion before viability, has been introduced in Congress starting in 2013. The law is based on federal rights to regulate commerce and the liberties and equal protection clause of the 14th Amendment. Polls show 61 percent of people support it.
The anti-abortion right has long argued that there is no right to abortion in the US Constitution. And it’s true: when the Court decided Roe v. Wade in 1973, the justices detected abortion rights within the charter’s general rights to freedom from government interference. The Court found abortion rights there in response to an upsurge of women’s liberation organizing and lawsuits — and the very real possibility that abortion laws would be vacated by lower courts, leaving the country with no abortion restrictions at all.
But neither is there anything restricting abortion in the Constitution. In 1789, when the Bill of Rights was ratified, there were no laws against abortion until “quickening,” around eighteen or twenty weeks, when you can feel the fetus move. This is why anti-abortion groups have been trying for decades to get an abortion prohibition into the Constitution through a “human life” amendment.
At the urging of feminists, abortion rights have been codified in New York, California, Illinois, and several smaller blue states. But no legislation has been seriously attempted on the federal level.
Democrats in Congress could have pushed through a law codifying the right to abortion anytime they had a majority in the last few decades, but they never prioritized it. As abortion access winked out in state after state, the cry has been “Save Roe!” as though the Court were the only place these rights could be protected. “Remember the Supreme Court,” they told feminists every election year. That’s no longer a viable election strategy, as the Court is now six to three against abortion.
This puts establishment Democrats in an awkward position. As they sold out our welfare programs, health care, labor rights, schools, and even put Social Security and Medicare on the chopping block during the Clinton and Obama years, defense of abortion has become one of their last remaining unique selling propositions. If they don’t act now, they risk losing another constituency.
It’s possible the Court has overplayed its hand. In response to its actions, House Speaker Nancy Pelosi has pledged to bring up the Women’s Health Protection Act when Congress reconvenes in mid-September. Currently, every Democrat in the Senate is a cosponsor except Joe Manchin (West Virginia) and Bob Casey (Pennsylvania). Even Kyrsten Sinema (Arizona) supports the bill. No Republicans have signed on, though Susan Collins (Maine) and Lisa Murkowski (Alaska) nominally support abortion rights.
Could it pass? In the House, maybe, but never in the Senate, we’re told, because of the filibuster — the same reason we can’t win labor law reform, voting rights, a Green New Deal, a higher minimum wage, or universal health care.
Feminists must demand an end to the filibuster. The Right has no compunction about changing the rules when they think they can benefit: In 2017, they ended the filibuster for Supreme Court appointments, which is why the court is now packed with right-wingers.
There’s now a pile of important legislation blocked up behind the filibuster, and a lengthening list of constituencies who want it ended. The Court’s brash move on abortion could add a big constituency to that list if movement activists and political leaders make a strong case for it. A popular campaign to end the filibuster to pass the Women’s Health Protection Act is within reach right now. For example, New York senator Kristen Gillibrand called for exactly that in response to the Court’s decision.
Unless we force them to act, support for the Women’s Health Protection Act could become yet another empty gesture by Democrats. They can’t hide behind the Court anymore, but they can still hide behind the filibuster. A campaign to end the filibuster in order to actually pass the law would force Democrats to take a stand, and expose those who refuse as supporters of forced childbirth.
The Women’s March and several other feminist and reproductive justice groups have signed onto a mobilization on October 2, with marches in every state, just before the Supreme Court starts its fall term, with abortion on the docket. But the Court is not the right target at this point. Activists should turn our attention to Congress and take the planned mobilization as an occasion to pressure those who aren’t yet on board. And since the Women’s Health Protection Act does not address abortion funding, we should also clearly demand Medicare for All, which includes full payment for all abortion and birth control options.
Above all, we should remember that it was feminist agitation that won us the rights we have in the first place. No court gave them to us. They were secured in the context of a general upsurge on the Left. With the Court’s decision causing outrage across the nation, now is the time for another offensive, this time focused on ending the filibuster and codifying the right to abortion in law.