Abortion Activists Need to Win Back the Culture Before We Can Win Back the Court

Let’s face it: The legal strategy for saving abortion anywhere outside the bright blue states is over for now. Red-state legislatures are dominated by Republicans, and their districts are gerrymandered to keep it that way. Their attacks on Roe v. Wade have escalated from sniping to carpet-bombing. According to the Guttmacher Institute, of over 1,300 state restrictions since 1973, 44 percent were enacted in the last decade. More than 100 are from 2021, the most of any single year. In the first two months of 2022 alone, over 230 bills were filed in 39 legislatures.

An increasing number of state anti-abortion laws contain no exceptions for rape or incest. Utah may prohibit abortion even to save the mother’s life. Fetal homicide laws in 38 states could make abortion murder. If the 6-3 conservative majority on the Supreme Court endures, which it is likely to do, we cannot expect it to defend reproductive rights for the next 40 years.

This does not mean that the reproductive justice movement should wave the white flag and abandon the 33.6 million women of reproductive age, plus all those who will be born with uteruses, in the 26 states poised to ban abortion. It does not mean that we should quit passing laws to protect it — and let the other side waste its money challenging them.

It means we must rejoin the culture wars. We’ll know we have won when abortion is normal again.

Legislation is a major weapon of the anti-abortion movement — of any movement. Still, the opponents of abortion have long recognized what feminists once knew: Legislation follows cultural change. Laws encode the zeitgeist, but they don’t create it, and they’re enforced only so long as the culture endorses them. Justice Samuel Alito’s draft opinion overturning Roe v. Wade includes an appendix listing 51 abortion criminalization statutes, all but four dating to the mid-to-late 19th century and the latest passed in 1952 — approximately the end of history, as Alito sees it. But history — cultural change wrought by feminism — buried them all, even if they remained on the books. If they can now be disinterred and revivified, it is because the ground has been softened.

“If propaganda is as central to politics as I think, the opponents of legal abortion have been winning a psychological victory as important as their tangible goals,” wrote Ellen Willis in 1979, six years after the Roe v. Wade ruling. “Two years ago, abortion was almost always discussed in feminist terms—as a political issue affecting the condition of women,” she continued. Since then, increasingly, “the right-to-life movement has succeeded in getting the public and the media to see abortion as an abstract moral issue having solely to do with the rights of fetuses.”

In fact, Willis’s timeline starts a bit late. The National Right to Life Committee — then called the Right to Life League — was founded in 1967. By 1969 the movement had begun circulating its blood-and-gore pictures. One showed the product of a late-term abortion: a fetus at the bottom of a bucket, “curled against the metal as though in nasty parody of a newborn tucked inside its cradle,” writes Cynthia Gorney in “Articles of Faith: A Frontline History of the Abortion Wars.” Others were of the taut-skinned “candy-apple babies” of saline abortions or the severed fetal body parts extracted in suction procedures. In this first period of activism, the aim was to arouse disgust and pity — disgust at abortion doctors and their patients, pity for the fetuses they destroyed. “Nobody could look directly at these pictures and launch into a speech about the right of women to do what they wished with their bodies,” Gorney comments on the strategy.

The idea that fetuses were babies with a right to life also preceded Roe. In the 1971 case Rodgers v. Danforth, one of several legal actions challenging criminalization that would vie for Supreme Court review, the Missouri attorney general appointed a Catholic doctor as guardian ad litem for a class of infants the legal papers called “children presently in existence but unborn.” The group was rolled into one fictitious individual, Intervenor Defendant Infant Doe; the doctor’s role, when mentioned in the press, was to “defend the fetus.”

The images of butchery repelled at least as many people as they moved toward anti-abortion activism. But the adorable Infant Doe, endowed with a sensate body and a sensitive consciousness, would carry the movement to where it is today. In 1970, an Oregon urologist photographed a formaldehyde-preserved 10-week-old fetus, with only its minuscule feet poking out between seemingly gargantuan fingers. The “precious feet” became an international pro-life symbol in 1979; today the search term produces nearly 4,000 results on Etsy for gold and silver lapel pins, necklaces, and charms. “The Silent Scream,” a 1984 Right to Life film, claimed to document the fetus’s physical and emotional distress during abortion — at a stage long before it has a nervous system. “Partial-birth abortion,” coined in 1995, confounds a method of dilation and extraction used in second-trimester abortions with childbirth. Congress banned this medically approved procedure in 2003, and the Supreme Court upheld the law in 2007.

The “fetal heartbeat” — whose detection by ultrasound at around six weeks’ gestation marks the end of legal abortion in many states — performs a similar rhetorical function. Renaming an embryo a fetus and describing as a “heartbeat” what Dr. Saima Aftab, medical director of fetal care at Nicklaus Children’s Hospital in Miami, calls a “flutter in the area that will become the future heart of the baby,” the term turns a barely developed potential life into a recognizably babylike being. Whereas the “precious feet” signify something utterly dependent, “fetal heartbeat” conflates a sign of life with autonomous personhood. Since the leak of the draft Supreme Court opinion, abortion opponents have calmly entertained killing a mother to save a “baby” the size of a pomegranate seed. When they call this “pro-life,” they have hijacked the meanings of babies, killing, and human life itself.

For anyone not vigilantly resisting it, this language persuades. For instance, in a Pew poll released May 6, almost two-thirds of respondents said the statement “Human life begins at conception, so a fetus is a person with rights” described their views “not too well or not well at all.” In other words, Americans do not broadly believe that a fetus’s interests are equal to or exceed those of its mother. Yet only 4 in 10 agreed that “the decision to have an abortion should belong solely to the pregnant woman.”

To whom should the decision belong? The doctor? The father? Marjorie Taylor Greene? Pew did not ask. But this tepid support for women’s autonomy signals sympathy for the rising star of the drama: the fetus. Sympathetic or not, even Pew’s researchers were affected by the religious right’s disinformation. One question in the survey identifies six weeks’ gestation as “about when cardiac activity (sometimes called a fetal heartbeat) can be detected.”

Cultural change is always contested. But once established, a zeitgeist is not only what we feel or think consciously. It’s what we don’t notice: what is normal, what does not alert the skepticism of a fact-checker. One of the arguments against the abortion bans is that they are out of step with the mainstream. But as the stream is diverted, the left drifts to the center, the center to the right, and the right off the edge of the Earth. The radical becomes unremarkable.

This drift can be observed in Louisiana. After the Alito leak, a bill was introduced in the Legislature to amend the state criminal code to define abortion as homicide, punishable by execution. “No compromises,” declared the Baptist pastor who co-authored the bill with Republican Rep. Danny McCormick. But some in Louisiana’s anti-abortion community, while on board with the end, were queasy about the means. “Our longstanding policy,” read a press release from Right to Life Louisiana, “is that abortion-vulnerable women should not be treated as criminals.”

Advocates of choice found this hesitation encouraging. “I am relieved that Louisiana Right to Life and the Louisiana Family Forum think the criminalization of pregnancy is one step too far,” said Melissa Flournoy, board chair of the Coalition for Louisiana Progress and co-founder of 10,000 Women Louisiana. Only one step?

In fact, when it became clear that his bill would not survive floor debate intact, McCormick withdrew it. But no one had forfeited the prize. Louisiana’s trigger law, in place since 2006, bans abortion if Roe is overturned. And speaking of drift, that prohibition has only one exception: to save the mother’s life. The law was authored and signed by Democrats.

In 1973, with feminism in full flower, it felt as if the abortion wars were approaching an end, or at least a truce. But the religious right was mustering for more intense and wider combat, and when Ronald Reagan became president in 1981, it set about reshaping the culture in the image of the white, fundamentalist Christian, patriarchal family. At the same time, influential voices in the male left were denigrating the culture wars as a right-wing ruse to distract the working classes from the “real” economic issues. Everyday life — sexuality, reproduction, the family — was a boutique, “women’s” issue.

Paradoxically, the political struggle to claw back abortion rights and advance reproductive justice means extracting pregnancy from politics and returning it to everyday life. Abortion is a normal part of the sexual lives of both people with uteruses and those without (May 14 rally sign: “Men are responsible for 100% of unplanned pregnancies”). Pregnant mothers experience the fetuses inside them variously — as part of their bodies, beloved children, parasitic invaders, or all three — but it is their experience. For many centuries, these facts were self-evident. Pregnancy was women’s own business.

Recapturing the reasonable does not entail speaking from the middle, however. Our propaganda, as as the poet Amanda Gorman puts it, must “fight fire with feminism.” It must be as emotionally powerful as the words and images that have brought us to where we are. Already there are good examples. We will need many more. The Democratic Socialists of America have adopted the no-bullshit second-wave slogan “Free abortion on demand without apology.” Sean Tipton of the American Society for Reproductive Medicine calls the anti-abortion movement “the forced-birth movement.” Rise Up 4 Abortion Rights, which organized a big rally in New York City, is promoting the slogan “Forced Pregnancy is Female Enslavement.”

The first slogan demands what we want, not what we think we can get. The second calls out the hard, corporeal tyranny of abortion criminalization. And the third? When I’ve seen placards with similar messages at recent marches, the effect was simultaneously thrilling and discomfiting. In 1982, No More Nice Girls, a street theater group of which I was a member, padded our bellies, draped ourselves in black cloth and chains, and unfurled a banner reading “Forced pregnancy = Slavery.” Some feminists of color objected. They felt the words trivialized chattel slavery. We stopped using it.

Should we use it now? The more radical the religious right becomes, I think the more necessary it is to name what it is up to. The antis’ post-Roe dystopia is one in which women happily surrender self-determination to the cause of making and caring for babies. No one will chose to be childless. The ultimate goal, says Jeanne Mancini, president of the March for Life Education and Defense Fund, is “to make abortion unthinkable. To change hearts and minds so that women don’t want the right of an abortion — the so-called right of abortion.” This fantasy is oxymoronic: voluntary slavery. Let us call it what it is.

The late Pamela D. Bridgewater, an African American legal scholar and reproductive justice activist, suggests “slavery” is an apt description. In “Breeding a Nation: Reproductive Slavery, the Thirteenth Amendment, and the Pursuit of Freedom,” published in 2014, she argued that compelling people to carry and birth babies they don’t want constitutes “involuntary servitude.” Moreover, she claimed, in abolishing slavery, the 13th Amendment also abolished reproductive coercion, so fundamental was the practice of slave-breeding to the economy and human oppression of the institution. Under the 13th, therefore, state control over pregnancy and parenthood, including the criminalization of abortion, is unconstitutional. That contemporary reproductive abuses and injustices — substandard health care, disproportionate rates of maternal and infant morbidity and death, involuntary sterilization, criminalization of miscarriage, abortion bans — disproportionately afflict Black and brown people strengthens Bridgewater’s argument.

The anti-abortion movement has made the normal perverse and the perverse normal. To restore to public thought and emotion the once self-evident understanding that pregnancy belongs to the pregnant, and only to them, feminists must do the radical work and use the radical language that will make abortion unremarkable again.