SCOTUS, Roe, Reproductive Rights, and All Our Freedoms: We must act

 

Politico, and now other outlets such as the NY Times,  have reported on a 98-page draft opinion from the Supreme Court that, in no uncertain terms, overturns both Roe v Wade and Casey and removes federal protection for abortion rights. While it is true that this is a draft and individual justices’ final decisions could change, the fact that 5 of the justices (Alito, who wrote it, Thomas, Gorsuch, Kavanaugh, and Coney Barrett) signed on to it makes it unlikely that the final decision will change. The only uncertain vote is that of Chief Justice Roberts, but he is no longer the swing vote he once was; the only difference is whether the vote to say that women have no Constitutional right to control their own bodies would be 6-3 or 5-4.

And, absolutely, let us be clear: that is what overturning the 50-year old Roe decision would mean, that the majority of the justices on the Supreme Court will have ruled that the control over a woman’s body, on whether she has to continue a pregnancy regardless of the circumstances, is in the hands of others. It may be Congress, state legislatures, governors, husbands or other relatives, churches that they may or may not belong to or believe in, petty pettifoggers, vicious misogynists, non-vicious misogynists (?), and folks with their own right-wing agendas, but not the women themselves. When Roe was decided, Justice Blackmun, who wrote the opinion, said abortion should be a decision made by a woman and her doctor. That was itself a bit paternalistic, but it was 50 years ago; I think the way that still should be read is “with adequate medical advice”, understanding the potential (or likely) risks involved in the decision that the woman makes. And ONLY the woman whose body involved should be able to make!

The majority of justices on the Supreme Court obviously do not believe this, along with a substantial minority – but definitely a minority – of the American people (most polls put support for Roe at about 70%). Their anti-abortion movement, well funded by multi-millionaires and billionaires, and supported by both the Catholic Church and many fundamentalist Protestant sects, seems to have finally won their cause after 50 years of reactionary fighting to impose their will on everyone else. It is a coup, be certain of that. It was, most immediately, made possible by the fact that Donald Trump got to name 3 Supreme Court justices, through the hypocritically evil behavior of Mitch McConnell the GOP Senate majority, which decided both to block President Obama’s appointment of Merrick Garland, not even holding hearings, 9 months before his term expired, and then approving Trump’s appointment of Amy Coney Barrett just weeks before the election he lost! This alone should be enough to make everyone who cares about reproductive rights, women’s rights, LGBTQ+ rights, voting rights, any rights, pull out all stops to make sure that the predicted Republican victory in November does NOT happen, that McConnell (and I make no analogies since anything you might compare him to would be insulted by the comparison) does NOT again become Majority Leader. The Democrats are far from perfect, but every justice who voted to repeal was appointed by a Republican, and it was the Republican majority in the Senate that facilitated the appointment of the last three. The SCOTUS opinion will say that the decision is Congress’ and there is no possibility that legislation maintaining women’s rights will get 60 votes in the Senate, or even 50 given Joe Manchin. The pundits and pollsters are all predicting a big INCREASE in GOP seats in November. Unless we do something about it.

Make no mistake: this SCOTUS decision is that the opinions of some people are worth more than the lives of others. No one who is opposed to abortion has ever been required to get one by the decision of Roe. Of course, there were many “mental disabled” people or others judged incompetent who were required to get them in the past, vicious abuse in itself. Ironically, the issue is that the same logic is now being applied to ALL women; they do not have the Constitutional right to make their own decisions about their own bodies.  As Susan Matthews in Slate writes, Justice Alito could not find a justification for the right to abortion in the Constitution because “The Constitution was not written for women”. It didn’t even give them the vote!

Although it does not change the core issue, the choice of words in the debate has been unfortunate; anti-abortion people use the term “murder” of “babies” while abortion rights advocates have used the term “choice”, as if it were a matter of convenience, or what color bedspread to get. It isn’t. It is about the decision to carry a pregnancy, something that is medically risky even in the lowest risk people (but a risk that most people who want to have a baby gladly accept), to give birth, to probably raise a child, to completely change their life, to possibly be unable to care for already-born children, to give birth to a child of a rapist (perhaps incestuous rapist), to give birth to a child already unable to survive because of genetic or other malformations occurring in utero, etc., etc., being only the right of the woman who is pregnant, and not that of anyone else. Consulting them – family, friends, doctors, is fine, but the decision needs to be that of the woman alone, not the state legislature.

This decision, if it stands, will not end abortion in the US, as it will send us back to pre-Roe times when the decision was left to the states (indeed, several states had legalized abortion before Roe). So, abortion will likely remain legal in states like NY, CA, MA, IL, etc. But other states, including of course TX and FL, which have already passed draconian restrictions on access to abortion, will almost undoubtedly make it illegal again, along with many others. It has been estimated that abortions will decrease by 14% (“only”) but if this is true, it has to be taken in the context of geographic access. Women with money from TX, FL, and other states that severely limit access to abortion may be able to travel to another state, but poor women, on whom the burden always falls the hardest, will find it much more difficult or impossible, as will teenagers, including those who are pregnant as a result of incestuous rape (see “Who gets abortions in America”, by Sanger-Katz, Miller and Bui, originally published in the NY Times Dec 21, 2021 and republished on May 3, 2022). Health and healthcare are already incredibly inequitable in the US, and this decision will make it much worse. Jill Filipovic, writing in Substack, provides a number of other concerning likely outcomes,  including that there will be a 21% increase in maternal mortality!

And if that were not enough – more than enough – to get your blood boiling,  get you out to the streets, the likelihood that this will end with abortion approaches zero. Many of the opponents of abortion rights also oppose other reproductive rights, including cheap and easy access to contraception and sex education in schools. This would be illogical if preventing abortions were truly their goal, as it is precisely access to these two factors that are universally associated with lower abortion rates – see ‘Scandinavia’. When abortions were illegal in countries such as Ireland, sex education and contraception were also severely restricted – and the abortion rate was higher than in say, Denmark. But the women receiving these abortions, illegally, were at much higher risk. These arguments, however, get little traction, since those who would restrict all reproductive rights are doing it for other reasons – maybe they hate sex, maybe they hate women, but they surely believe that they know better and freedom is not important to them. If this is hypocrisy – they will fight for the right to own and carry a gun or not wear a mask – hypocrisy is not important to them either.

And it will not end with reproductive rights and contraception. Certainly the rights of LGBT+ people will be even more infringed. And our rights to read books and have our children learn science and history. And our right to vote. Listen to the far-right carry on about restrictions on their freedoms, but think about the freedoms that are at the core of the US and on which we depend.

And most important, these are freedoms we can no longer can passively depend on. If you don’t fight for them, they won’t be there.

Contraception, women's health and dignity, teens, and stupid legislators

A bill before the Maine legislature would allow women to obtain a year’s worth of oral contraceptives at a time, rather than the previous 3-month limit. This is a good thing, as argued by its sponsors and supporters. Women typically take oral contraceptives for long periods of time, and the requirement that they return to refill their prescriptions every 3 months is at best an inconvenience and at worst a burden. It is a burden women should not have. Indeed, there is no good reason to require a prescription for oral contraceptives at all.

This does not mean that there are no reasons put forward by opponents; if there were none, there would be no opponents. Overall, the opposing arguments fall into 3 categories: money, control, and wacko paranoia. If women only have to fill prescriptions once a year there will be fewer prescriptions being filled, which could be a small hit to pharmacies. The bigger objection is from insurers, as addressed in an article in the Portland Press-Herald of April 19, who worry that it could become a “mandate” for coverage with no cost share for other contraceptives, particularly those that are more expensive for insurers.

Control is a big and insidious issue. The idea that women are incapable of making their own decisions, particularly with regard to their reproductive systems, is as outrageous as it is persistent. For generations women have fought and often won struggles to be considered legally as “people” (implicit definition: men); to have the vote, to own property, to divorce. But no area has been as fraught with (yes, “fraught” requires a preposition!) opposition as the entire area of women’s reproduction. From before the time of Margaret Sanger, every source of pressure – religious, economic, and legal – has been brought to bear against the idea that women should have control of their own bodies and particularly their reproduction. The struggle continues; abortion rights are the most vulnerable today, but as the opposition to the Maine bill illustrates, contraceptive rights are scarcely secure.

Even among the biggest supporters of contraception, there can be poor decisions. Nearly 20 years ago I sat on a Planned Parenthood advisory board, and many of its members were surprised that I strongly opposed a requirement that women have a Pap smear before receiving a contraceptive prescription. The logic of those who supported it was that the inducement of receiving contraceptives would encourage women to get their Pap, which was then recommended. My position was that the negative incentive of the Pap (and associated pelvic examination, see below) would keep women, especially young women and teens, from getting their contraceptives, and thus likely increase unwanted pregnancies. I am sure that that Planned Parenthood, and other contraceptive providers, no longer have such a requirement. Indeed, we no longer recommend Pap smears for women under the age of 21, and for others, they are recommended only every 3 years. Regarding the screening pelvic examination, it simply violates the first criterion for a screening test – there must be condition that can be screened for in an asymptomatic person. This has led the American College of Physicians, having reviewed the evidence, to recommend against it, while the US Preventive Services Task Force (USPSTF) somewhat incomprehensibly, gives it an “I” (evidence is insufficient to recommend for or against) recommendation. This is summarized in a recent review from the Agency for Health Research and Quality (AHRQ). The American College of Obstetricians and Gynecologists still basically advocates it, although it suggests the decision be made individually between the woman and her doctor, no real change from when I discussed it on July 3, 2014 (”The screening pelvic examination: not annual, not ever”).

Being a major provider of contraception does not save PP from the wrath of Congressional Republicans; indeed, while abortion is the flaming tip of the spear of conservative opposition, the right’s opposition to PP is also against those that do not do abortions, but mainly provide contraception and other women’s health services. The good news is that the GOP may be unable to attach defunding PP to the “health” bill (Obamacare repeal) because it is being done at a budget resolution. You might think that providing contraception would be seen as a good thing, since fewer unwanted pregnancies would lead to fewer abortions, but this is not their logic. [I think that they are, basically, anti-sex, at least that practiced by others, as demonstrated by all the patently false claims we hear constantly in school-based clinics that prescribing contraception will “encourage” sex.]

Of course, it does not. Hormones encourage sex, yes. Social pressure encourages sex, for sure. But not contraceptives; what they do is prevent pregnancy. Amazing. And if the whole campaign against PP, as well as opposition to allowing a year’s worth of OCPs, is grounded in a mindset that wants to control women, the issue for young women (and their partners) is far worse. They are seen as not only women, but immature and incapable of making wise decisions. There is some basis for the idea that they are immature, as parents know; the brain is not fully developed until at least the mid-20s and the last part to develop is the ability to make “executive decisions” – taking the information that you have, looking at it completely and objectively, and making a smart choice.  This is why teens and young adults make poor decisions in driving and, conversely, make the best soldiers.

But this is not a justification for restricting access to contraceptives, condoms, or other health services that might prevent bad outcomes. Because teens make not make the most mature decisions, and often regret them later, it doesn’t mean that they won’t make them. So we need to make it as easy as possible for them to not have long-lasting negative consequences, like STIs and unintended pregnancy. There need to be as few barriers as possible for young people to not get (or make another) pregnant, to not get preventable sexually-transmitted infections (STIs). These would include making oral contraceptives over the counter, making condoms in front of the counter, and preferably free. Should a young woman (or man) come to a clinic for care, invite them in, see them quickly, meet their needs. For goodness sake, don’t make it hard, don’t send them somewhere else to register as they’ll walk out the door!

The editorial in the New York Times, May 13, 2017, “The health care bill’s insults to women”, documents the degree to which women in rural and underserved areas, where more than half of PP’s clinics are, will lose if Medicaid doesn’t cover services at PP. It notes that in 105 counties, PP is the only provider of reproductive health services. The editorial starts with insensitive “sophomoric” quotes from several congressmen and senators, including one from Kansas Sen. Pat Roberts that “I wouldn’t want to lose my mammograms!”. Sen. Roberts would be well advised to identify which of the areas in Kansas, particularly in the very rural “Big First” district he once represented as a congressman, would be among those losing services. A lot, actually, especially since one OB/Gyn from Great Bend is now busy representing the district in Congress. Of course, Dr. Roger “the poor just don’t want health care” Marshall probably didn’t take care of many underserved folks.

This is not the way to go. Our goal must be to increase health as much as possible, not to create obstacles to it.