Written by Steven Jonas   

The famous Roe v. Wade Supreme Court case was decided on Jan. 22, 1973. By a 7-2 majority the Supreme Court held that states could generally not regulate abortions in the first trimester, could undertake regulations that “promoted the health of the mother” in the second, and for the third trimester could regulate fairly extensively, except in cases involving the life or health of the mother.

The decision generally established the 24th week, generally considered to be the “time of viability” for a here-to-fore fetus, outside of the womb (assuming the usual care given to newborns. At that time care for premature babies arriving that early was very limited. It has developed rapidly and broadly since. But that is another matter). The case was decided under the Due Process Clause of the 14th Amendment which, the court held, extended the right to privacy for pregnant women.

While the Court could have invoked the Ninth Amendment, the one that Judge Robert Bork (you remember him, I’m sure, the one whose Supreme Court nomination was thankfully “Borked” after a bitter fight) characterized as “an inkblot on the Constitution,” which holds that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” it did not. (That Bork held such views — that parts of the Constitution he didn’t like should/could just be disposed of — was the basic reason why he was held to be not qualified to be elevated to the bench. There is no evidence that Bork, who died only in 2012, ever modified his views on the Constitution and what it means.)

If the Supreme Court has simply established that a woman’s right to choose, up to the time of viability, the outcome of her pregnancy, was an enumerated “right . . . retained by the people,” the pro-choice forces would have been that much better off and the anti-choice forces that much worse off. But they didn’t. The abortion wars have been underway ever since — especially in the matter of just what kinds of harassment of abortion-seekers and providers can be carried out in relation to second-trimester abortions under Roe v. Wade — and the pro-choice movement has been on the defensive ever since. In my view, it is time for that to change.

In 1980, I wrote a letter to the American Civil Liberties Union suggesting that the court-based strategy for protecting Roe v. Wade that they had been pursuing up to that time was bound to fail, eventually. I pointed out that the opponents of abortion rights were already moving into the political arena and making it into a political issue. Nixon had adopted the “Southern Strategy” to win the white racists (and a few black ones too — see the rare but-always-trotted-out — African-American Trump supporters) over to the Republican Party, where they have remained to this day as the Party religiously pursues racist policies.

Then Reagan followed, starting in the 1980 Presidential Campaign, making abortion rights and the Republican-led attack on them, a national political issue, which, of course, it is more-than-ever. Indeed, one cannot now be a viable Republican candidate for their Presidential nomination if one is not for criminalizing all (or almost all) abortions. A major policy requirement that Reagan placed on George H.W. Bush, who had been his principal opponent for the 1980 Republican Presidential nomination, if he were to be given the Vice-Presidential nomination, was that he and Barbara give up the seats on the Board of Directors of Texas Planned Parenthood that they had held for several decades.

Since that time, The Republican Party has hacked away at abortion rights, primarily at the state level, using that hacking, of course, for entirely political purposes, to bring to is side the anti-abortion-rights Christian Right. For decades they have been led into battle by describing themselves as “Pro-life” while by implication, the pro-choice movement is clearly “pro-death.” And the pro-choice movement has stayed primarily with the original, feminist, argument that the woman’s body is hers to control and that the choice of whether or not to have an abortion, within the accepted limits of Roe v. Wade (which prescriptions abortion-rights opponents have never themselves accepted), is based on the woman’s rights to choose. But this very limited strategy has failed over time.

The pro-choice movement continues to lose, primarily at the state level, but at the national level too — see the Repub. national attack, led by Ted Cruz by the way — on Federal funding for Planned Parenthood. Ironically, of course, as is well known, and must be even to its Republican attackers, Planned Parenthood spends no federal dollars on the provision of abortion services because that is prohibited by law, and in any case spends only about 3% of its annual budget on the provision of abortion services, while a goodly chunk of the rest of it is spent on preventing the need for abortion through family planning services.

But it is at the state level that the real damage is being done, with the wide variety of methods being adopted by Repub. state legislatures one-after-the-other, to make abortion services as rare as possible, as inconvenient as possible, as personally distasteful as possible, and as uncomfortable as possible. To say nothing of what the fanatics of the anti-abortion-rights crowd does to women in many states who are entering and leaving abortion centers.

And did you hear the one about poor women in some states being forced to sleep a car for three nights because they are required to make three visits to the abortion center before being able to have the procedure and cannot afford to stay in a hotel. Talk about punishing women seeking or having abortions. Yes, these hypocrites are being just that when they scream that they didn’t agree with Trump’s demand that women having abortions be “punished” by being sent to prison, while in many states abortion-seeking women are being punished aplenty already.

So while the anti-choice movement (the pro-choice movement years ago letting then have the term “pro-life” without a battle, when they are anything but), continues to rely on the feminist argument, the anti-choicers continue to win, because they are in the political arena, time-and-again mobilizing their Christian Rightist base. (“Evangelical” is the wrong term for this minority. Plenty of them are far from Rightists.) The pro-choicers also allow themselves to be characterized as “pro-abortion” when they are anything but. That would be like being “pro-appendectomy.” In fact it is the anti-contraception forces that are pro-abortion, but that is an argument for the most part not used as well.

Now, let me make it clear that I am firmly in favor of the “woman’s right to choose” and the “woman’s right to control her own body” arguments. But they are not politically-winning ones, and politically-winning ones is what our side desperately needs. What I am saying here that it is time (if it is not already too late) to vastly broaden the defense, in fact to go on the attack against the anti-choicers. This can be done using four words: “Republican Party; Religious Authoritarianism.”

This where the pro-choice movement must go, if in more-and-more states, abortion will become a practical impossibility, especially in the second trimester in which, given the language of Roe, states can choose to interfere. First of all, the anti-abortion forces’ definition of “life,” even from the moment of conception, is based on religious thought and principles. And they say it out loud. “It’s in the Bible” (and whether or not it is, is irrelevant). Fine. If that’s your interpretation of the Bible, then you shouldn’t have an abortion. But neither should you be allowed, in a nation governed by civil law (as the United States supposedly is, but as the forces of organized religion gain strength after strength on issue after issue, like allowable discrimination, one has to wonder), you force your view down my throat through the use of the criminal law.

Whether the penalties, were abortion to be formally criminalized, would fall on the person preforming the abortion or on the woman receiving it is irrelevant. The anti-abortion-rights forces are engaging in Religious Authoritarianism. They are using their religious beliefs as the foundation for their campaign to change the law governing everyone. Interestingly enough, the modern position of the Roman Catholic Church on abortion was established by Pope Pius IX as recently as 1869. He reversed the long-time Church position, established from the time of St. Augustine and reinforced by St. Thomas Aquinas, that abortion was OK up to the time of “quickening” (16-20 weeks). It was Pius IX who also established the Doctrine of Papal Infallibility.

But this is what the pro-choice forces must begin to hammer away on if the battle is not to be irretrievably lost. It is a matter of religious liberty, but not the “religious liberty” of the discriminators (a brand-new Republican argument). It is the religious liberty of everyone, including that of the abortion-seekers (and to be sure there are many) who are themselves quite religious (the same principle applies to contraceptive-users), that is at stake here. Of course, once that principle is recognized, then the battle — over whether religious authoritarianism is to become the basis of the law of the land, and who knows what’s next on the agenda of the Religious Right — a religious test for political office seekers, which violates Article VI of the Constitution already seems to be there.

Of course, in parallel with the battle over abortion rights as a matter of true religious freedom is the battle over the rights of the LGBT community, the opponents of those rights basing their opposition entirely on religious doctrine. They indeed are claiming a religious right to discriminate when many members of the LGBT community are themselves religious, just holding to a different doctrine. As I said in a column on the grievous Hobby Lobby decision:

“. . . what the Court has done here is to take one set of religious beliefs, that of the owners of a company incorporated under public law (and gaining the tax benefits of so doing), and placed them above the religious beliefs of their employees, all in the name of religious freedom. In pre-Enlightenment 16th and 17th century Europe, a time that [the late] Justice [Antonin] Scalia pined for in the past, Europeans of various countries slaughtered each other over similar questions of opposing religious doctrines. Back then it wasn’t over such matters as contraception (or even abortion . . .). People were burned at the stake for, for example, holding that the wine and the wafer offered at the end of services really were, or were really just symbolic of, the blood and body of Christ. People slaughtered each other over whether it was predestination or “good works” that determined whether or not one went to heaven.”

And the man who made the first English translation of the Bible, one William Tyndale, in 1536 was burned at the stake, in England, for having the temerity to do so. What the Republican Religious Right wants to do is right out of the 16th century: put the power of the State and the criminal law behind one particular set of religious doctrines.

The matter of what religious liberty really is in our nation is one that concerns everyone, male and female. For example, on the matter of contraception suppose that the “rubbers” of which Ted Cruz spoke so fondly were outlawed, on religious grounds (and using Republican reasoning on contraception for women — it should be denied, by cutting off funding for Planned Parenthood, according to Cruz) they certainly could be. Why then contraception becomes a concern for men as well as women.

And then the fight has to be taken to THE REPUBLICAN PARTY which, by putting religious authoritarianism at the center of its political doctrine, has become the enemy of freedom across the board in this country. The outcome of these policies is predictable. But this column has become much too long already. So that will be a matter for another time.