I have heard the steady drumbeat grow louder and faster over the past 3 decades. Roe Roe Roe… By the time I hit adulthood we were being warned. In law school, as I studied Roe v. Wade, 1973, I realized I had already lived through cases that initiated its unraveling: Rust v. Sullivan, 1991 and Planned Parenthood v. Casey, 1992. I became a woman and mother as the threat loomed. And now, here we are, it seems, at the final hour for Roe. And I just have to say something about what I think it all means, inchoate though my thoughts may be.
As someone who is always digging in the past, one of the things that most interests me about the anti-abortion movement is where and how it was born into U.S. political history. It wasn’t until the 1970s that abortion was sounded as a moral crisis among Protestants of the Bible Belt. Before that, Catholics were those largely associated with having taken a theological position against abortion, though even that position shifted over the course of time.
For generations, the Catholic Church cited “quickening” as the point when life began, and that was an amorphous term dependent on what the pregnant person felt and reported movement. It wasn’t until the second half of the 20th century that life, in Catholic theology, was inched backwards to the point of conception. When U.S. evangelicals began to organize against abortion, they were coming off an association with a backlash against the Civil Rights movement and were easing their way into hard-lining against feminism (specifically abortion) and the burgeoning gay rights movement with a new theological intensity.
Religious sects shift for political as well as ethical reasons all the time. So, while I find the timing telling, I wouldn’t doubt the theological beliefs of those who are against abortion. Moreover, I sincerely believe a heterogeneous society requires respect for varying positions, with the outer limit being those that harm members of our community. And the possibility that the Court will soon overturn Roe is where, for me, patriarchy and its commitments have become so very destructive. A great deal of harm is around the bend. Old harm, habitual harm.
First, let’s be clear. If Roe is overturned, it will not ban abortion. It will allow states to ban abortion. Meaning, it will allow state action to overrun what the Court had previously acknowledged as a fundamental right. It is not incidental that the history of discrimination law in this country has pivoted around whether states have the authority to deny constitutional rights to individuals. States have a long history of structuring inequality through limiting the scope of protected rights. The Court is marching toward not only affirming but encouraging that practice again.
Second, and this is very important: People do things regularly that they don’t have a legal right to do, and always have. What legal approval does, however, is provide a form of social protection. For example: Interracial sexual relationships between Black women and white men in the U.S. South were commonplace at the time interracial marriage was declared illegal in many states and interracial sex was criminalized. Denying the right to marry was a way of keeping the children Black women had with white men from inheriting property and achieving social recognition and legitimacy. When interracial sex was criminalized, it was not the white men who stood at the top of the social hierarchy who were punished. Rather, it was largely Black men. And, of course, there is a significant history of Black men being falsely accused of sexually assaulting white women as a justification for lynching, at the same time, during slavery and Jim Crow, that the sexual assault of Black women by white men was commonplace. Everyone knew these things were happening, and the law did not in fact prevent interracial intimacy. Rather, the prohibition of interracial intimacy became a mechanism for structuring where people sat in a social and class hierarchy.
My point, quite simply, is that prohibitions are almost never absolute rules. Prohibitions are mechanisms for punishment and control. We can see this also in the history of laws against same-gender sex and marriage. Same-gender relationships existed long before legal recognition, but they came with the risk of punishment. That risk and punishment was likewise unequally distributed to those who were most vulnerable in the society.
As with these other matters, abortion will still happen even if Roe is overturned. But the prohibition in many states, especially the poorest ones, will institute a punishment structure that will be aggressive, that will be felt most harshly by those who are already marginalized, and that will force reproductive labor on people who do not wish to perform it. The idea that their coercive circumstance could be easily resolved by adoption, as implied by Amy Coney Barrett’s line of questions in court, disregards the physical and emotional burden of bearing a child against one’s will.
And that moment reminded me of a news story I followed a few years ago about a doctor in rural Georgia named Thomas Hicks. In the 1950s and ’60s, he ran a clinic for unwed pregnant women. There, many of the mothers were told that their babies died in birth, when in fact they were spirited away. Hicks illegally sold babies to childless married couples. It is the kind of story that makes the skin crawl and the heart break.
The work of stratifying people rides on prohibition, shame, and secrecy. I remember when I first began to pull anti-miscegenation cases from late-19th- and early-20th-century southern courts. There was a particular sort that I was fascinated by: the ones in which white women were convicted of having sex with Black men, which carried sentences and exhortations of shame. In one rape trial, in which a white man was accused of raping a white woman, the defendant’s successful defense rested on the fact that the woman had worked as a “prostitute” and had serviced Black men. Therefore, she could not in fact have been raped.
It is well established that Black women were deemed “unrapeable”—during slavery due to their status as property, and later through the exclusion of Black people from juries and the prevalence of racist tropes in trials. But what I learned in case law is that this same logic of race and crime was at times also used to punish white women who betrayed the social order, and sat low enough in society’s hierarchy to be counted as though they weren’t white at all.
Horrors of the past. So too was the experience of Norma McCorvey, the woman behind the pseudonym Jane Roe. And it didn’t begin with the famous case, but when she was in elementary school and sent to a reform school because she was caught kissing a girl. There, in the reformatory, she reported she had lots of girlfriends and it was relatively nice. But when she got out, she was raped by her guardian, a family member. McCorvey lived a hard life. She was a domestic laborer without much education. And perhaps that was why, in the years when she tried to speak out and reveal herself in the midst of the pro-choice movement, she was at first pushed to the side by the movement’s leaders, marked—as she read it—as too unpolished and unreliable. And when she later renounced abortion, she was treated as a tool by an anti-abortion movement that inadequately respected her.
Between the Hicks babies, a history of racist sexual violence, and Norma McCorvey, you might say these are “bad old days” stories. But they are also right-now stories. We have been changed by the social and cultural transformations of the mid-20th century. Reproductive rights, gender liberation, and racial justice are mainstream ideals. But what we are fighting against are those who want to use such beliefs and the identities from which they spring as a basis of punishment. They seek to formally rank human beings, to mark some people as inside or outside the protected membership of our society. They want to make some of us available to be used, locked up, and cast aside, but neither respected nor included.
Every time we see some prominent evangelical pastor caught in a scandal related to something he has passionately preached against, we ought to remember this: They cannot erase what they call sin. And they know this. Their objective is to diminish others with the weapon of self-righteous moralizing, and that is true even as they desire some of those “others.” Look at the history of slave masters raping enslaved people if you need to understand the root of how desire and destruction coexist in the United States. Structuring oppression is as much about using people as it is about rejecting them. More so, really.
Forgive me if this is somewhat rambling. But I wanted to share a few thoughts of a sort I hadn’t yet read amid the brilliant and powerful range of voices speaking out about reproductive rights and health right now. I am grateful for the organizers and experts, and I’m listening to them. I’m grateful for testimonials and protest. Like many of you, I am distressed. And it seems like we will be for some time. Because just as abortion was by some political alchemy turned into a moral issue, vaccination and public health have now been as well. Just as civil-rights organizing was once described as a sign of social decline by retrograde forces, teaching civil rights has now been as well. I don’t know what it will take to turn the tide. But I know I cannot stand by as people try to formally reclassify me, a Black woman, as a second-class citizen. Too many have already died for the fraught and fragile citizenship that I grasp hold of.