By Peter Montague, SEHN Fellow

In 2022, in a case known as Dobbs, the Supreme Court of the United States (SCOTUS) overturned Roe v. Wade (1973), thus revoking women’s constitutional right to terminate a pregnancy.

Dobbs is the first time in U.S. history that an established liberty right has been taken away. Dobbs stripped women of their bodily autonomy. Now politicians control women’s bodies.

Energized by their victory over Roe, men spurring the anti-choice movement are now pursuing two further goals: to ban abortion nationwide, even in states where it is now legal, and make birth control difficult or impossible for most women to get.

To achieve both goals, anti-choice extremists may try to use a federal law that is already on the books: the so-called Comstock Act. Enacted by Congress in 1873, the Comstock Act made it a federal crime to deliver through the mail any item that might be used for abortion or birth control. Today, SCOTUS might interpret the current version of Comstock to ban from interstate commerce all medicines, instruments, or supplies needed to perform abortions or for birth control.

Enforcing Comstock would not require an act of Congress. The President, acting alone, could order the Justice Department to enforce Comstock. There is little doubt that SCOTUS could invent a legal excuse to rubber stamp the deal.

The plan to limit birth control

SCOTUS established the constitutional right of married couples to use birth control in 1965 in a case known as Griswold. The Court extended that same right to non-married people in 1972 in Eisenstadt.

In deciding both Griswold and Eisenstadt, SCOTUS relied on the same legal logic they used to decide Roe in 1973—a constitutional right to privacy based in the 14th amendment. Now that SCOTUS has reversed Roe, Griswold and Eisenstadt are ripe for reversal too. In fact, in writing his Roe opinion, Justice Clarence Thomas specifically targeted Griswold and Eisenstadt for reversal. Notably, Thomas went even further, saying SCOTUS should also reverse Lawrence v. Texas (2003), which established a right to same-sex relationships, and Obergefell (2015), which established a right to same-sex marriage. Clearly, reversing Roe was only a first step.

The rights of women and of LGBTQIA+ people are both now on the chopping block, with a cruel Supreme Court ready to execute.

Anti-choice extremists have at least six reasons for wanting to ban abortion and birth control:

#1. Economics: A larger population creates a larger economy and, of course, everyone knows that “growth is good,” even when growth is destroying the natural world. Worshipping economic growth is a nearly-universal American religion.

#2. In 1800, the average U.S. woman gave birth to seven or eight children. By 1900, that number had dropped to about three and today it’s less than two, thanks in no small part to aborti0n and birth control. Some within the anti-choice movement hope that banning abortion and birth control will keep more women pregnant more often, returning women to their traditional subordinate roles as only mothers and housekeepers. Call it the anti-feminist strategy.

#3. Abortion and birth control enable premarital sex, which some people consider sinful, although premarital sex has been common in the U.S. since the 18th century.

#4. In 1588, Roman Catholic doctrine declared that both abortion and artificial birth control were murder, and little has changed since then. As a result, Catholic women have tended to produce larger families than Protestant women.

As immigrants to the U.S. from Catholic countries rose from 5 percent of the U.S. population in the 1830s to 16 percent in 1905 [Carlson, Godly Seed (2012)], Protestant men grew fearful that they were being replaced.

For example, Theodore Roosevelt wrote in 1902 that, by using birth control and abortion, Protestants were committing “race suicide.” Roosevelt’s era developed a kind of hysteria from fear that white Protestants were allowing themselves to be crowded out by Blacks, Asians, Latinos, and immigrant Catholics. By banning abortion and birth control, some white Protestant men hoped to produce more white Protestant babies, to retain their traditional social domination.

As noted above, the Roman Catholic church has long been a major opponent of abortion and birth control. In this context, it is worth noting that six of the nine current SCOTUS justices are Catholic—Roberts, Alito, Kavanaugh, Barrett, Thomas and Sotomayor. In addition, Justice Gorsuch was raised Catholic though today he professes Episcopalianism. Creation of a Catholic majority within SCOTUS was engineered by Leonard Leo, long-time leader of the right-wing Federalist Society, himself a Catholic. Some have argued that the court should be reformed in various ways to make it more diverse, and representative of, the U.S. population. More than 60 percent of Americans disagree with the Dobbs decision that overturned Roe.

#5. Banning abortion and birth control cannot prevent wealthy women from accessing abortion and birth control. They can travel to places where both are legal, including much of the world outside the U.S. (The right to abortion has been declared a human right by numerous international frameworks, which are honored in many countries, though not the U.S.) Abortion bans will only deprive disadvantaged women of access, so they will either seek more dangerous alternatives, or they will bear more children that they can afford to raise.

Thus, disadvantaged women will tend to become burdened with larger families than they can successfully manage, which will produce a cascade of ill effects in their lives for many years thereafter. In the U.S., birthing a child is 14 times more life-threatening to women than having an abortion, so physical harm is the first disadvantage. Furthermore, extensive study reveals that women who are denied an abortion live with more chronic pain, and rate their overall health far worse than women who abort. Women who are denied an abortion, and their families, have a fourfold increase in the odds that they will fall below the federal poverty line. They experience more debt, lower credit scores, and worse financial security for years after the pregnancy, compared to women who abort. Women denied abortions are less likely to achieve higher education. Children of mothers who have an abortion benefit from increased financial security and better maternal bonding than children born because a woman was denied an abortion.

Keeping poor people burdened with family obligations, pain, poverty, debt, and depression may provide an effective form of social control, or so cruel elites may hope.

#6. Birth control prevents the need for abortions. Why, then, would anti-abortion extremists oppose birth control? At bottom, banning abortion and birth control is little more than a way to control women. It keeps them tied up at home tending to children, which allows men to pursue their business, social, and political lives free from competition by “the fairer sex.”

What the future holds

Although pressuring the President to enforce the Comstock Act is an obvious way to severely restrict abortion and birth control nationwide, the anti-choice movement is not putting all its eggs in that basket. To eliminate abortion and restrict birth control, they are pursuing a strategy of death by a thousand cuts.

Here are six tactics anti-choice radicals are using now to make abortion and birth control difficult or impossible for most women to get:

#1. Anti-choice extremists have created a pseudoscientific argument that birth control is a form of abortion.

To conflate birth control with abortion, they are changing the definition of when pregnancy begins. Here’s the biology: After a sperm cell and an egg cell meet, they create a single cell called a zygote (a fertilized egg cell). About 9 or 10 days after fertilization, the zygote may have traveled through a fallopian tube to the uterus where it may (or may not) “implant” in the wall of the uterus. According to 12 medical science organizations, this is when a pregnancy begins—at the time of implantation, not 9 or 10 days earlier at fertilization.

Ignoring the science, anti-choice activists insist that certain forms of birth control, such as emergency contraception (“morning after” pills and intra-uterine devices, or IUDs) terminate a pregnancy, which is the definition of abortion. This is nonsense. “Morning after” pills prevent production of an egg cell, preventing fertilization. Most IUDs obstruct healthy sperm cells from meeting egg cells, preventing fertilization. Some IUDs prevent implantation, thus preventing pregnancy as defined by medical science.

#2. Fetal Personhood: In recent years a new anti-abortion, anti-birth control, anti-woman movement has invented the idea of “fetal personhood,” insisting that a zygote cell is a human child. This is bonkers, according to medical science. But fetal personhood fiction allows anti-woman extremists to harass, persecute and even imprison women in the name of protecting unborn children. It’s all about cruel control.

Here’s the thing: Only about 25 to 30 percent of fertilized egg cells (zygotes) survive to become a blastocyst, then an embryo, then a fetus, then a live birth. Yes, 70 to 75 percent of zygotes fail to thrive in the woman’s body. This raises an interesting legal question. If, as “fetal personhood” extremists argue, a single zygote cell is already a human child, and 70 to 75 percent of all zygotes die during subsequent changes, killed by the woman’s body, anyone who creates the conditions in which a sperm might fertilize an egg is creating a substantial risk of killing a child. Such an act, if we accept fetal personhood, would seem to warrant a criminal charge of reckless endangerment, or even negligent involuntary manslaughter. This is where the logic of “fetal personhood” ends up.

#3. Spreading medical misinformation about birth control: activists and influencers aligned with anti-abortion groups promote false or exaggerated claims about the risks of birth control. They may assert that hormonal contraceptives lead to weight gain, diminished sex drive, emotional disorders, dangerous bleeding, cancer, stroke, and mental health issues—despite scientific evidence that side effects are exceedingly rare with the proper choice of modern birth control medicines. They intend to frighten women into abandoning birth control—and there’s some evidence it’s working.

#4. Targeting medical institutions and professionals: Some anti-abortion lawmakers are enacting laws and regulations that restrict the speech and practices of healthcare providers. For example, doctors may be legally required to provide women false or incomplete information about contraception or may be prohibited from referring patients to abortion clinics. In states with anti-abortion laws, doctors may stop treating miscarriages for f ear they will be prosecuted because the procedure resembles abortion. Some doctors are choosing to leave states with such laws, making those states even more hostile to women’s health, depriving some women in those states of reliable information and treatment.

The number of affected women is not small. In the U.S., some 23 million (one-third of all women aged 15-49) already live in the 18 states where abortion has been banned since Roe v. Wade was overturned in 2022.

#5. Funding “crisis pregnancy centers” (CPCs): Crisis pregnancy centers, often run by religious or anti-abortion ideologues, offer bogus information about abortion and birth control to frighten women into sustaining unintended pregnancies. CPCs often set up shop adjacent to abortion clinics, then pose as medical clinics although they typically do not employ any doctors. In 18 states, CPCs are now funded with public money provided by male-dominated legislatures.

#6. Create legal and financial barriers to birth control: Some anti-choice lawmakers and organizations are pursuing legal challenges to contraceptive access. They attempt to block federal funding for organizations that help women obtain birth control (Planned Parenthood, for example) or they propose legislation that limits access to birth control methods they falsely claim cause abortions.

In sum, women’s rights in the United States are under sustained assault by a devious, unprincipled social movement spurred by men aiming to turn back the clock to about 1880 when women were entirely subordinate in every realm of life. Their goal, as they see it, is to make America great again.

The solution—probably the only permanent solution—is the vote.

To secure women’s rights, we can inform ourselves and vote!

Vote!

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