USA: Extremist Supreme Court’s lawless reversal denies freedom to reproductive healthcare and abortion

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John Lamparski / NurPhoto via AFP

An authoritarian jurisprudence of violence and control

New York, Paris. 24 June 2022 — Things that are inevitable may still be shocking. The Center for Constitutional Rights (CCR) and the International Federation of Human Rights (FIDH) are reeling from this Supreme Court’s retrograde decision in Dobbs v. Whole Women’s Health – from its arrogant dismissal of universally recognized principles of bodily autonomy, self-determination, and equality; its lawless disregard for generationally settled expectations of millions of people who order their lives around the freedom to access full reproductive healthcare, including abortion; and to the opinion’s broader authoritarian premises.

Our organisations fear what it portends concretely for people who can become pregnant – particularly poor and Black and Brown people – for trans people whom state legislatures will increasingly seek to control and degrade, and for the broader constitutional principles of equality and human dignity so wantonly threatened by this Court’s cruel, unchecked regressiveness. They are grieving what was lost and what is to come.

CCR, which is one of FIDH’s member organizations, was among the vanguard of pre-Roe feminist lawyers in the early 1970s who challenged abortion bans from the perspective of hundreds of impacted women, rather than from the then-dominant perspective of doctors or clinics, demonstrating how abortion laws were driven by paternalistic and archaic conceptions of pregnancy and motherhood, and how these enforced gender roles contributed to the repression and control of women, particularly poor and Black and Brown women, in myriad, documented ways, while arguing forcefully that the right to abortion is a fundamental right grounded in equality. And in Harris v. McRae, CCR challenged, unsuccessfully in the Supreme Court, the punishing, paternalising and religiously motivated restrictions imposed by the odious Hyde Amendment on using Medicaid for abortion medical services. In more recent years, it has supported expanded access to reproductive healthcare, including Plan B, while watching the right to abortion become increasingly vulnerable.

The Court’s 7-2 decision in Roe, though relatively uncontroversial in its immediate aftermath, set off an emboldened fundamentalist theocratic political movement which organized around the decision to advance reactionary attacks on racial and criminal justice, women’s freedom and equality, and the repression of queer liberation and sexual freedom more broadly. It manufactured a reactionary judicial philosophy labeled “originalism,” which is so tackily and instrumentally on display in Samuel Alito’s majority Dobbs opinion — and also bought and paid for an extremist right-wing 6-3 majority on the Supreme Court.

CCR and FIDH have never believed that people would find lasting liberation through the courts. But the threat this Court poses to liberty, equality, and the possibility of social progress through social movements is profound. This Court is ideologically committed to an authoritarian jurisprudence of violence and control rooted in 18th Century norms of exclusive, white, male, propertied entitlement. It is a jurisprudence soaked in the bloodlust of a spate of federal and state executions that also imagines constitutionally protected liberty in unbridled possession and use of deadly weapons; it honors wholesale disenfranchisement of Black and other voters of color in contravention of the Voting Rights Act and the Fifteenth Amendment; it elevates a shameful history of enslavement and exclusion, and proudly cosigns the grotesque desire by state legislatures to control women’s and trans persons sexuality, personhood, and freedom.

These six unaccountable ideologues are the empowered arm of a growing fascist movement, affirming the suspension of the Constitutional and human rights of the most vulnerable members of our community. The Court has planted seeds within the Dobbs opinion that threaten basic conceptions of liberty at the heart of previously settled decisions protecting sexual freedom, same-sex marriage, and contraception, and its bold re-imagination of the role of the state-versus-individual foretells a dangerous rollback in fundamental protections for criminal defendants, such as the provision of counsel, excluding unlawful evidence, and the right to remain silent, at the same time the Court is dismantling the wall between church and state.

CCR and FIDH are preparing for the mass criminalization of those who are working to protect the self-determination, bodily autonomy, and dignity of people who can get pregnant. They anticipate that state legislatures will move quickly to further restrict the right to seek and receive reproductive health care. But just as the U.S. does not stand alone in the world in its regressive experiment in regulating people’s bodies, neither do the movements that resist.

CCR and FIDH find inspiration in feminist movements across the world that have sought freedom for abortion within authoritarian or conservative, religiously-backed regimes; they trust in the courage and endurance of human rights defenders in the U.S. South, who have long provided life-affirming reproductive care despite the vicious effort to deprive Black, Brown, and poor communities of access. The government and the courts will deny that rights exist, but it is the people who locate rights.

It is the people who resist, and we stand proudly with the resisters.

Throughout this fight, CCR and FIDH will draw on our own living history of protecting criminalized and marginalized communities and activists from abusive state practices. Together with their movement partners around the world, these communities will build power and exchange strategies of resistance; they will continue to dismantle the vast architecture of white supremacy and gender oppression; and simultaneously channel energy and creativity toward building the world we deserve.

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