[[link removed]]

THE NEW ANTI-ABORTION ARGUMENT TAKES US BACK TO THE 19TH CENTURY  
[[link removed]]


 

Linda Greenhouse
November 18, 2024
New York Times
[[link removed]]


*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

_ Idaho, Kansas and Missouri in seeking to establish standing to
outlaw mifepristone argue cause "a loss in potential population or
potential population increase,” and that “decreased births” were
inflicting “a sovereign injury to the state itself. _

Jenny Hueston for The New York Times,

 

Although I’ve heard every argument about abortion, pro and con, over
the years, the anti-abortion case made by three Republican-led states
in a recent Federal District Court filing stopped me in my tracks.

The attorneys general of Idaho, Kansas and Missouri, seeking to
establish the states’ standing to challenge the federal
government’s liberalized rules for medication abortion, claim that
expanded access to abortion pills is “causing a loss in potential
population or potential population increase,” and that “decreased
births” were inflicting “a sovereign injury to the state
itself.” This remarkable assertion comes on Page 189 of the
states’ 199-page complaint
[[link removed]],
as astonishing a legal document as I have ever read.

Beyond this bold natalist argument, there is much to say about the
states’ complaint, which seeks to reignite a lawsuit against the
U.S. Food and Drug Administration that the Supreme Court
unanimously threw out
[[link removed]] five
months ago. The suit’s primary challenge is to the F.D.A.’s repeal
of the requirement for in-person dispensing of mifepristone, one
component of medication abortion’s two-pill regimen, in a clinic,
medical office or hospital, by or under the supervision of a doctor.
This has enabled women to terminate their pregnancies at home after
receiving the pills in the mail.

The states’ complaint is larded with provocative and irrelevant
photographs: someone carrying shopping bags said to contain abortion
pills; a pile of empty pill vials; a picture of an embryo, in reality
not more than an inch long, blown up to huge, baby-like proportions.
The states claim that the F.D.A.’s actions have caused
“immeasurable pain and suffering” and harmed “many women,”
assertions refuted by the facts on the ground. Serious complications
have been rare with the two-pill regimen of mifepristone and
misoprostol, which now accounts for nearly two-thirds of abortions.

The F.D.A. was initially sued by a group of anti-abortion
organizations and doctors who did not perform abortions themselves but
who claimed “conscience injury” from the widespread availability
of the medication. That claim failed the Supreme Court’s strict test
for standing, which requires an actual injury — “injury in fact”
is the operative phrase — suffered by a plaintiff and redressable by
a court. So the three states are now trying to show that unlike the
doctors, they do have a concrete injury, an injury to their
sovereignty by the F.D.A.’s enabling of a “50-state mail-order
abortion drug economy” that permits women, with ease, to have fewer
babies.

My surprise at the natalist argument against abortion is not because I
haven’t heard it before. To the contrary, it is because I have.
While I never expected to see it emerge in a legal document in 2024,
the argument is inextricably linked to the history of abortion in the
United States.

As the historian James Mohr documented in his authoritative book,
“Abortion in America: The Origins and Evolution of National
Policy,” abortion was common and broadly legal in the early decades
of the 19th century. It was so common, in fact, that it contributed to
dropping birthrates. More to the point, evidence began to accumulate
that abortions were being obtained in growing numbers not merely by
young single women “in trouble” but by respectable married women.
With immigration rising, the failure of the white, Protestant middle
class to reproduce itself in sufficient numbers was becoming in some
quarters an urgent concern.

While abortion was not the sole reason for the shrinking birthrate,
and population worries were not the only driver of abortion’s
criminalization, it’s clear that controlling women’s behavior,
rather than concern for fetal life, was the primary impetus for the
anti-abortion movement that began to sweep the country. The question
of how to keep women from terminating their pregnancies had a
convenient answer: outlaw abortion. By the early 1900s, abortion was
illegal in every state.

One would search in vain for this history in Justice Samuel Alito’s
long majority opinion in Dobbs v. Jackson Women’s Health
Organization
[[link removed]], the
2022 decision that erased the constitutional right to abortion. In
that religious tract
[[link removed]] disguised
as a judicial opinion, the fetus is the star. And so it may not come
naturally to see the link between the current pro-natal discourse —
whether Vice President-elect JD Vance’s crack about childless cat
ladies or Elon Musk’s fixation
[[link removed]] on
a coming population collapse — and the stranglehold that
anti-abortion politics maintains on American civic life. The great
replacement theory, a conspiracy theory often espoused by Christian
nationalists that sees the country being overrun by Jews and nonwhite
immigrants, has a claim on some of the same real estate.

In her book “When Abortion Was a Crime,” the historian Leslie
Reagan recounts that abortion was quite common during the Depression.
Doctors were increasingly willing to help their financially stressed
patients navigate the few exceptions to state abortion bans, and law
enforcement often looked the other way. But in the 1940s, this
semiofficial toleration yielded to a “push for maternity and
domesticity.” The Ladies’ Home Journal urged its readers to
“correct the mistakes of the 1920s and ’30s” by having babies.
Law enforcement became more aggressive. Doctors’ offices were raided
and women were arrested, forced to testify against abortion providers
on pain of contempt. Highly publicized prosecutions helped spur calls
for reform of the old laws.

The point is that although we often think about abortion as a
free-standing issue, it is deeply embedded in society’s expectations
about sex and reproduction and their consequences.

In the 1960s and early 1970s, the concern was about overpopulation and
the prospect of a world unable to feed itself, a fear that helped to
propel the early stirrings of abortion reform. In 1969, declaring that
“one of the most serious challenges to human destiny in the last
third of this century will be the growth of the population,”
President Richard Nixon called for a panel under the direction of John
D. Rockefeller III to study the issue and make recommendations. Nearly
three years later, the Rockefeller Commission, as it was
known, recommended
[[link removed]] expanding
access to contraception and decriminalizing abortion. Nixon, in the
midst of his 1972 re-election campaign, accepted the report warily and
declared his opposition to legalizing abortion. (The Yale law
professor Reva Siegel and I tell this fascinating, largely forgotten
story in “Before Roe v. Wade
[[link removed]]_,” _a
sourcebook available as a free download.)

So now we find ourselves in a new natalist moment when the top lawyers
of three states feel free to call openly on the federal courts for
help in making women have more babies. The judge they have chosen,
Matthew Kacsmaryk of the Northern District of Texas, is one of the
most openly anti-abortion judges on the bench. He may well grant their
wish and send them into the welcoming arms of the U.S. Court of
Appeals for the Fifth Circuit, where several judges appointed by
Donald Trump are busy running for the Supreme Court. As for the
Supreme Court itself, the justices might want to keep in mind Karl
Marx’s dictum that history repeats itself, the first time as tragedy
and the second time as farce.

_[LINDA GREENHOUSE was the recipient of a 1998 Pulitzer Prize,
reported on the Supreme Court for The Times from 1978 to 2008 and was
a contributing Opinion writer from 2009 to 2021.]_

* abortion
[[link removed]]
* anti-abortion
[[link removed]]
* abortion rights
[[link removed]]
* abortion restrictions
[[link removed]]
* Reproductive rights
[[link removed]]
* reproductive health
[[link removed]]
* women's health
[[link removed]]
* women's bodies
[[link removed]]
* Mifepristone
[[link removed]]
* abortion drugs
[[link removed]]
* Women
[[link removed]]
* war on women
[[link removed]]
* MAGA
[[link removed]]
* Supreme Court
[[link removed]]
* 2024 Elections
[[link removed]]
* Donald Trump
[[link removed]]

*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

 

 

 

INTERPRET THE WORLD AND CHANGE IT

 

 

Submit via web
[[link removed]]

Submit via email
Frequently asked questions
[[link removed]]
Manage subscription
[[link removed]]
Visit xxxxxx.org
[[link removed]]

Twitter [[link removed]]

Facebook [[link removed]]

 




[link removed]

To unsubscribe, click the following link:
[link removed]