After Dobbs, Women Have Been Pushed Out of the Legal Debate on Abortion
On Friday night, in an unprecedented ruling, U.S. District Judge Matthew Kacsmaryk suspended the Food and Drug Administration’s approval of mifepristone, one of two drugs used in medication abortions. A competing opinion from U.S. District Judge Thomas Rice — who ordered the FDA to preserve the status quo regarding mifepristone — created uncertainty as the Biden administration moved swiftly to appeal Kacsmaryk’s ruling.
Strikingly, Kacsmaryk used the language of the antiabortion movement throughout his opinion, including claiming that mifepristone “starves” the gestating being “to death.” Kacsmaryk also refused to use the word “fetus” because it refers to only one of several stages of development during pregnancy, and instead employed “unborn human” and “unborn child.”
The judge cited scientifically dubious claims about the potential for side effects and trauma for those who use mifepristone for abortions. Yet, Kacsmaryk emphasized the rights of those “unborn humans” and the interests and perspectives of physicians, while generally shunting the lives — and especially the preferences — of those who might be pregnant to the margins of his reasoning. This focus fits into an increasingly prominent theme in abortion politics since the Supreme Court revoked the constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization.
The debate over abortion has returned to the assumptions that guided it before the Supreme Court’s 1973 decision in Roe v. Wade recognized the right to abortion. In that pre-Roe period, both sides often ignored women and focused on the rights of medical professionals. Justice Harry Blackmun’s opinion in Roe reoriented the focus of debate to emphasize pregnant women and their lives. But Dobbs has returned us to the past. Studying how women and their advocates fought their way onto center stage, and the immediate pushback they engendered, help clarify what’s at stake in today’s erasures — and how proponents of abortion rights can redirect the conversation once again.
Before the late 1960s, abortion litigation primarily consisted of criminal defense work for professionals charged with performing or abetting abortions. That all changed due to activists in the grass roots women’s movement, who treated abortion restrictions as proof of sex-based discrimination. Their thinking spurred social-change-oriented lawyers to see the potential for an affirmative litigation strategy that went beyond defending doctors charged with abortion-related crimes and instead asserted the constitutional rights of abortion seekers. In 1969, advocates filed the first federal court case — Abramowicz v. Lefkowitz — in which they claimed that the right to have an abortion was a crucial component of equal rights for women.
Feminist attorney Nancy Stearns and four co-counsels argued that New York’s highly restrictive abortion law violated the rights of female citizens. The plaintiffs were women from all walks of life — married and unmarried, parenting and childless, those who had had abortions in the United States or abroad and those who had not had abortions when they wanted or felt they needed them.