Just two years ago, as Roe v. Wade headed into its late thirties, it seemed to be losing its luster. States were hacking away at abortion rights, passing ninety-two new restrictions in 2011 alone—nearly triple the number of any other year on record. Americans appeared ready to tolerate all manner of barriers to abortion access, from parental notification laws and restrictions on late-term procedures to laws crippling the ability of clinics to provide care by subjecting them to absurd requirements (such as having five-foot-wide hallways, as one Virginia law demanded). These new burdens added to the weight of a decades-long and alarmingly successful campaign by the right to stigmatize women seeking abortions and to persecute abortion providers. As a result, 87 percent of US counties lack an abortion provider, and several states have only a clinic or two staffed by a doctor who flies in from another state. “It’s never been this frightening before,” one longtime clinic worker recently told The Washington Post.
What is taking shape looks increasingly like a patchwork system where the right to abortion applies only to women lucky enough to live in a state where the courts and legislature have not whittled it away. How, four decades after women celebrated the Supreme Court’s historic embrace of their privacy rights in Roe, has it come to this?
The short answer is that the piecemeal strategy of the anti-choice movement has paid off, and the Republicans’ ascendance at the state level has been a disaster for choice. Fetal personhood and other extreme measures may have been rejected at the polls in Mississippi and North Dakota, but voters in twenty-six states have elected conservative legislatures that seem to delight in dreaming up ever more devious ways to undermine women’s reproductive health. And right-wing courts can be counted on to approve: on January 11, for example, the Alabama Supreme Court interpreted the term “child” in the state’s Chemical Endangerment Act to apply to fertilized eggs and embryos, thereby allowing the prosecution of pregnant women for endangering their fetuses.
As Roe entered its fortieth year, however, signs emerged that this fight is still very much on. Protests against anti-choice measures broke out from Virginia to Michigan to Oklahoma to Idaho. In the 2012 elections, pro-choicers received a much-needed boost in Congress, adding twenty to their ranks in the House and two in the Senate, which now boasts nine women senators backed by the pro-choice powerhouse EMILY’s List. What had begun for Republicans as a punitive and frivolous congressional “investigation” of Planned Parenthood culminated in an electorally calamitous war on women that has tarnished the GOP’s name for a new generation of women voters. Americans may be wary of the “pro-choice” label, as Planned Parenthood has concluded (see Katha Pollitt, in this issue), but they still believe in the principle of Roe: that abortion is a decision best left to a pregnant woman and her doctor.
The movement to protect this basic right is sharpening its message as well as its strategy. In Washington, it just won new protections for military women, and the pressure is on President Obama to fill vacancies on the bench with judges who will protect women’s rights. In New York, a major push is being mounted to pass the ten-point Women’s Equality Act, a landmark bill that includes anti-discrimination and equal pay provisions as well as strong reproductive rights protections. It’s hard to imagine a more fitting birthday present for Roe.