I originally wrote this post as a Twitter thread. You can go over there and read it there if you want to.
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One of the things that I think a lot of people are missing when they focus on the 'abortion rights' portion of the concept of 'overturning Roe v. Wade' is that the Roe v. Wade decision wasn't legally centered on the question of abortion per se but on the right to privacy.
(Before everyone crawls up my ass: I was, until my salpingectomy in 2019, a non-binary person capable of becoming pregnant. I have been pregnant 13 times, had multiple D&Cs as a result of spontaneous abortions (aka miscarriages), and had one live birth. I shouldn't have to present my fucking bona fides in order to talk about this stuff, but I'm gonna, in order to make it clear that yes, I know abortion is important, but we need to not miss the other things this can impact, and (I think) is planned to impact.)
The main argument of Roe v. Wade hinged on the right to privacy under the 4th amendment, namely the idea that a private individual has the right to engage in such medical decisions as they see fit without the state getting involved. It also hinged on the 14th Amendment's 'due process' clause. So basically, the idea here is that without 'due process,' you cannot be deprived of your liberty to make medical decisions for yourself, nor can you be deprived of your right to privacy about those decisions.
This Britannica article does a pretty good job of explaining the high-level overview of the case itself, the legal arguments made, and what parts of the Constitution they depend upon.
And if you're saying 'okay, yeah, but it's really about abortion,' maybe it is. But you know what else depends upon the constitutional right to privacy? How about the case which established that right to privacy, Griswold v. CT, which guaranteed married couples the right to legal contraception?
And if you're convinced (as I am) that the attack on abortion is not just a white supremacist attempt to solve the 'birth dearth' and make sure the US has more white babies than brown babies (more on that in a second) but an attempt to narrow our privacy expectations and protections under the law, there's a lot here to be concerned about if Roe v. Wade's Constitutional privacy protections disappear in a puff of 'but the babiesssss'. This Cornell page explains multiple cases which depend on that privacy right.
Eisenstadt v. Baird (which established that access to contraception must be legal regardless of marital status) relied upon Griswold's right to privacy, and extended that right to privacy under the Equal Protection Clause. So basically, this right was established in Griswold for married couples, and then it was extended to unmarried individuals bc the state has no "rational basis" for excluding unmarried individuals from it. But again, if we have no medical right to make our own decisions and the state's "compelling interest" can be found to extend to abortion, it can be found to extend to contraception, since these decisions are all tied together. And if you think 'oh that can't happen,' I invite you to look at the last 5 years of our legal history.
Any fucking out-there bullshit that you think couldn't possibly happen because it's just too ridiculous? It could happen with this Court, I assure you, because Trump's appointees are making decisions on ideology & not law. But wait! There's more! (Of course there's more.)
Let's consult the Legal Information Institute again. What OTHER decision relies upon this right to privacy? If you guessed 'Lawrence v. Texas,' which struck down that state's sodomy laws that essentially made queerness illegal, you're right! (And you should read the details of that case, it's pretty fucked up, actually, in that it's a case of someone's ex-boyfriend weaponizing the police against two other queer men.)
Not only do I think that this is a very deliberate target of this entire attack on our very literal freedom to decide how we live our lives and what we want to do with our bodies, who we love, etc., but I think the cases to challenge these decisions are already being set up. If these arrests aren't intended to pipe upward to the Supreme Court and challenge Lawrence v. Texas, I will be very, very surprised.
And if those arrests in particular were not planned that way, I guarantee you someone else is figuring out how to challenge it. I guarantee it. That's how this works. You have to set up a challenge to the law somehow, you can't just ask the court to overturn a precedent.
If the Supreme Court finds that the state's interest vis a vis Roe v. Wade falls the other way now -- that the state's interest IS in regulating private medical decisions -- then it can easily find that the state can regulate personal sexual decisions. And we're not just talking about abortion when we talk about personal medical decisions.
We're talking about the right to medical transition, both HRT and surgical intervention. We're talking about the right of disabled people to not be forcibly sterilized by the state. We're talking about the right to not be experimented upon without our consent, or the right to not have 'practice' pelvic exams done on us by medical students while we're asleep for surgery, or the right to end our own lives if we so choose.
If you're thinking that no dude out there right now is thinking 'but what if we could establish the legal right to experiment on prisoners again and give them new drugs though?' then you are far less cynical than I am, just saying. We have done all of those things before and some of them we still do (you can google that pelvic exam thing if you have the stomach) & the enshrining of our right to privacy is the closest thing we get to a right to bodily autonomy, which is not a phrase the Court uses often.
If we lose the right to privacy, we may lose the right to equal marriage, bc if that right to decide who we have sex with isn't a private decision but something the state has the right to regulate, the state may say 'we can't be asked to enshrine protections for illegal sex.'
Again, you can think I'm alarmist as much as you fucking want to, and I'll just point you back at the last five years of our judicial and legislative history. It's ALL under attack. This is just where it starts.
I promised we'd come back to why the abortion debate is a white supremacist issue, and I'm going to start with a video. Please watch this and then come back.
The person whose interview is being quoted in that TikTok is Jane Elliott, and I'm going to just link to her website bc you really just need to go listen to her talk and read the things she's written in general. If you read the racist encoding of the book she's talking about from its NYT review from 1987, it becomes very very clear that this is exactly what the book is talking about, if you needed any more backup for that. The people who agree with the premise of the book note that 'Western' birth rates are dropping, while other people in the article say that 'immigration' will solve the population issue.
It isn't enough for these people to have 'enough babies to be consumers.' They need to be white babies, the argument goes, because otherwise white supremacy over the country will end! So we have to end abortion and stop immigration from Central America.
And if you think I'm being facetious about the concept of concern over having 'enough babies to be consumers,' I assure you that I absolutely am not being facetious whatsoever.
So we've got an attack on the right to privacy, which amounts to a desire to force white people who can give birth to do so so there are more consumers. Rich white people will always find a way to get abortions quietly and legally -- they did so before Roe v. Wade. This means more poor white babies to prey upon as consumers and wage slaves, which suits the ideologues just fine: that's what they prefer.
Sick, right? Yeah, well. Yeah.
It also means being able to push queer people out of public life and hopefully (to them) out of existence.
It means giving the state the ability to legislate what the people who don't have the money to be able to buy their way out of whatever laws are enacted do with their bodies, in a world where Amazon already puts their drivers in situations where they have to piss in bottles.
The right to privacy is where a lot of our human dignity protected under law comes from. If you don't have the right to medical privacy and to decide what you do with your body, you lose a lot of human dignity and choice.
(I know it's a little late to say this but I swear to fuck if any anti-vaxxers come in here with their bullshit I will launch you out of a rocket into the sun. Carrying a communicable disease around and making OTHER people ill is not comparable to any of this. Shut up.)
Also, this is part of why I get so fucking angry and spun up over the way the queer community is so fucking fractured right now. Like, I really don't care what you think about the colors of a flag or the label someone else uses. I don't. All of that stuff, from kink at Pride to trying to split us trans folx off from the rest of the queer community to the intra-lesbian wars, is part of a deliberate attempt of anti-queer right-wingers to weaken our community. They've said that part out loud. It absolutely is.
So what can we do about it? Well, short of communist revolution granting control of our lives to the people living them, we can fund the people fighting the good fight. We can BE the people willing to fight the good fight.
We can be part of mutual aid societies assisting those who need to access medical care today. (Feel free to link those below.) We can fund organizations like ACLU and Lambda Legal who fight the fights in court. We can push to enshrine those rights in law so they're not contingent upon court decisions, but written out in explicit text.
[Image: Henry Rollins says, "This is not a time to be dismayed, this is punk rock time. This is what Joe Strummer trained you for." End ID.]
I can also see how easily the medical privacy connection can be made to trans rights, and how likely it is that conservatives will be trying to meet in the middle from both of those angles.
Thank you! I usually use the image description field instead of describing it below the image these days. :)
