Alabama's abortion ban shows the chilling effect of Brett Kavanaugh's appointment

Jill Filipovic


There is a war on American women.

On Tuesday night, Alabama voted to outlaw abortion entirely. Doctors who perform the procedure could go to prison for 99 years, simply for providing healthcare that one in four American women obtains at some point in her life. The law offers no exception for rape or incest victims because, as the Republican lawmaker Clyde Chambliss said, “When God creates the miracle of life inside a woman’s womb, it is not our place as human beings to extinguish that life.”

Related: 'We're in the fight of our lives': Alabama abortion bill spurs lawsuits and protests

This is today’s “pro-life” movement: arguing that pre-teen girls who are raped and impregnated by their fathers must be legally forced to have a baby, because God wanted it that way.

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Alabama isn’t the only state where the same misogynist politicians who defend the right to own deadly weapons have set their crosshairs on women’s bodies, and where the same people who claim to value “life” have systematically cut services for poor children, medical care for pregnant women and affordable contraception for women who are trying to plan their pregnancies.

After years of anti-abortion efforts to chip away at a woman’s right to choose, the American “pro-life” movement has finally decided to go whole hog: they are introducing, and successfully passing, legislation across the country that outlaws abortion.

Many of these are “backdoor bans” on abortion, which outlaw the procedure after six weeks of pregnancy. That may sound reasonable enough – how can a woman be pregnant for six whole weeks and not realize it? – but they also prey on American ignorance about reproduction (you can thank the “pro-life” movement, and their efforts to cut sex education, for that, too).

Pregnancy isn’t measured from when a pregnancy actually begins (that is, when a fertilized egg implants in the uterus). It’s measured from a woman’s last menstrual period. So by the time your period is a week late, you’re considered five weeks pregnant. Don’t realize you’re late until two weeks have passed? You just missed your window for an abortion.

Bans on abortion after six weeks, also called “heartbeat bans”, were signed into law in Georgia, Kentucky, Ohio and Mississippi; North Dakota and Iowa have had similar bills blocked by the courts. In Louisiana, Missouri, South Carolina and Tennessee, at least one chamber has passed a similar law; politicians have introduced other similar measures in Maryland, Minnesota, New York, Texas and West Virginia.

All of these bans are flatly unconstitutional and in direct violation of Roe v Wade, which generally guarantees American women the right to end their pregnancies. The bans, as a result, should be struck down by the courts. Part of the point of these bans is for Republican politicians to throw red meat to their base – they may not be able to actually throw women in jail for abortion, but they can credibly say they try.

But a bigger reason we’re seeing so many of these bans now is that the anti-abortion movement is emboldened. They have a friend in the White House and control over a great number of state legislatures. Most importantly, after Republicans blocked Obama from appointing a supreme court justice to the seat vacated by Antonin Scalia, Trump has been able to choose – so far – two supreme court justices. He appointed men who he and his base believe are willing to overturn Roe.

For decades, the anti-abortion movement has moved relatively slowly. In 1992, the supreme court had an opportunity to overturn Roe, in a case called Planned Parenthood v Casey. They didn’t, but did open the door to restrictions and limitations on abortion, allowing states to restrict the procedure so long as those restrictions didn’t place an “undue burden” on a woman’s right to end a pregnancy before the fetus is viable.

Anti-abortion groups followed suit, pushing and often passing a flood of restrictions. While some anti-abortion advocates did push six-week bans even a few years back, it wasn’t a cornerstone of the movement’s strategy, and was in fact divisive – many anti-abortion groups thought clearly doomed attempts to outlaw abortion hurt their crusade, and insisted it was best to focus on incrementalism. The plan was to chip away at the ability to access abortion, until the promise of Roe was a hollow one.

That plan has changed because of Brett Kavanaugh.

Demonstrators protest at the steps of the US supreme court against the appointment of Brett Kavanaugh in Washington DC on 6 October 2018.

Demonstrators protest outside the US supreme court against the appointment of Brett Kavanaugh on 6 October 2018. Photograph: José Luis Magaña/AFP/Getty Images

Anti-abortion groups now seem united in the belief that today’s radical, activist, rightwing court will overturn Roe. And for the first time in my life, I think they’re right. So does Justice Stephen Breyer, who just last week used his dissent in a different case to sound the alarm about the willy-nilly overturning of long-held precedent: “It is one thing to overrule a case when it ‘def[ies] practical workability,’ when ‘related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine,’ or when ‘facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification’.”

He wrote: “It is far more dangerous to overrule a decision only because five members of a later court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the court will overrule next.”

Today’s decision can only cause one to wonder which cases the court will overrule next.

Would the rightwing justices on the court take a law like Alabama’s wholesale ban on abortion as an opportunity to do away with abortion rights for American women? Would they validate a law like the six-week bans, claiming to uphold the spirit of Roe? Either potentiality is, terrifyingly and suddenly, well within the realm of possibility.

Related: Alabama’s abortion ban is about keeping poor women down | Emma Brockes

Anti-abortion groups have long argued that they don’t want to hurt or punish women. That is a lie, as the proposed jail sentences for abortion reveal. They have claimed that they care about life, and that pro-choice claims that they are truly motivated by misogyny – animus toward women having sex for fun, a distaste for the various freedoms and opportunities that have been created for women since the 1960s – are fearmongering and untrue. And yet their proposed laws would also, for example, outlaw insurance coverage of many forms of birth control.

Anti-abortion groups also argue that they are primarily concerned about life, which is why they favor total bans, but will also settle for six-week ones – these bans are called “heartbeat bills” because they purport to outlaw abortion once a fetal heartbeat is detected. Anti-abortion groups say that life begins the moment a sperm fertilizes an egg. But those same groups don’t seem concerned about the fact that half of fertilized eggs naturally don’t implant in the uterus, instead getting flushed out with a woman’s normal cycle.

And if life does begin at conception, every woman should prepare to have her panties examined when she gets her period

Sure, this is natural, but so are all kinds of reasons human beings die – and if more than half of all infants were perishing after birth from natural causes, it’s safe to assume we would look into it. But when a majority of these same “babies” pro-lifers claim to care about die, it’s met with a shrug – their efforts are concentrated instead on making sure women are forced to continue pregnancies against their will.

In other words: not even the staunchest of “pro-life” advocates actually believes that life begins at conception.

And if life does begin at conception, every woman should prepare to have her panties examined when she gets her period. After all, there could be a dead person in there. Did you go skiing? Have a drink at a party? Smoke a cigarette? Perhaps you’re a murderer.

And what about the pregnancies of, say, undocumented immigrant women? If the conception happened in the United States, are they US citizens? One has a hard time imagining the supposedly “pro-life” Trump administration and its supporters in the Republican party extending American citizenship to embryos, but that’s only the logical extension of this ridiculous position. Do fetuses get their own social security cards? Will every miscarriage be investigated as a potential murder scene? That one isn’t as crazy as it sounds – where abortion is outlawed, women do indeed go to jail when they’re suspected of it, even if they just lose their pregnancies.

This is not about life. If “pro-life” legislators were concerned about dying babies, they would do something about the astounding rates of infant deaths in their states. And what do you know: the same states that are most aggressively outlawing abortion – Alabama, Georgia, Ohio, Kentucky, Mississippi – have some of the highest infant mortality rates in the country. Alabama’s infant mortality rate is on par with that of Sri Lanka and Albania. Maternal mortality rates in those states are also predictably, and horrifyingly, high. Where abortion laws are the strictest, women’s health is the worst.

That’s not surprising, given that these bans are indeed motivated by animus toward women, not by valuing life. After all, if life where the issue, these legislators would address their abhorrent rates of infant and maternal deaths before they start passing legislation that makes maternal death and injury rise. We know this from the rest of the world: unsafe abortion is a leading cause of maternal death, and abortion is unsafe where it is illegal. Outlawing abortion means women are injured. It means women die.

It’s not clear yet that as goes Alabama (and Georgia and Kentucky and Ohio and Mississippi and …) so goes the nation. But what is obvious is that anti-abortion forces don’t see any downside to these punitive, restrictive, barbaric laws. The most virulently anti-choice voters are motivated by their desire to narrow women’s options and circumscribe her life; the rest of the increasingly male Republican base is largely indifferent. For (again, largely male) Republican politicians, it’s a winning issue. For the conservative male justices on the supreme court, one of whom has been accused of sexual harassment and one of whom has been accused of attempted rape, it’s an opportunity to project their own misogynist politics on to American women.

And for the women who are affected, well – keeping them losing was the point all along.

• Jill Filipovic is the author of the The H-Spot: The Feminist Pursuit of Happiness