Portside

I can still feel the painful blow Justice Clarence Thomas struck in his Dobbs concurrence. After the conservative majority had already stripped away a half-century-old right protecting bodily autonomy (with the weakest of legal arguments, I might add), Thomas just couldn’t let the win sit. 

He called for open season on other modern rights, with past decisions like Obergefell v. Hodges (legalized same-sex marriage), Lawrence v. Texas (decriminalizing consensual sex among same-sex partners) and Griswold v. Connecticut (protecting access to contraception) explicitly in his sights. It was like being jumped, only to have the meanest kid kick you while you’re down and say, “We’ll be back.” 

They are in fact back. Last week, the U.S. Supreme Court considered whether the Food and Drug Administration’s rules governing the abortion medication mifepristone were legal. Mifepristone has been state-sanctioned, legally prescribed and safely and effectively used for decades. As we learned with Roe v. Wade, however, longevity is no shield when it comes to this Court. But more to the point, regardless of the outcome here, this case marks the beginning of a new assault on reproductive freedom and our fundamental rights. 

In the years before Dobbs, the conservative strategy for restricting abortion access was piecemeal: waiting periods after appointments then hospital admitting privileges followed by hallway size mandates (you read that correctly) then transvaginal ultrasounds and, throughout, misleading abortion “counseling.” 

On the way to overturning Roe, conservatives made it both harder for doctors to provide abortions and for patients to feasibly access them. Never mind that these policies were shown to drastically increase maternal mortality and infant death because of how they hampered access to reproductive health care, especially for people of color. Conservatives never cared and pressed on, chipping away at access and destabilizing the legal basis of universal abortion access. 

That’s where we are now with contraception. Mifepristone is one medication used along the continuum of reproductive care. Destabilize the authorities and processes associated with its distribution and you’ve begun to pave the path for attacks on other reproductive medications: First, mifepristone, then Plan B, then the pill.

If this all seems like hyperbole, remember that at every step along the road to Dobbs, abortion advocates sounded the warning call: The fall of Roe not only was a realistic possibility, but it would not mark the end of the anti-abortion movement. Because the goal has never been just to give power back to the states, but to place a woman’s reproductive functions back under state control. 

It’s high time we heed that warning. Now that conservatives have overturned Roe, they have no reason to stop — especially with the courts on their side.  

Remember, the only reason this mifepristone case reached the Supreme Court is because of Trump-appointed judges like Matthew Kacsmaryk, James Ho and Cory Wilson, all of whom had clear anti-abortion bona fides when they were confirmed to the bench. Indeed, it was their anti-Roe credentials that made them prime judicial candidates. So it’s no wonder that, after Dobbs, those judges and their conservative allies immediately seized the jurisprudential momentum to further restrict access to abortion. That is what they were put there to do.

As long as someone, anywhere in the United States, can receive a legal abortion — by procedure or medication — the campaign against reproductive freedom will continue, with the courts serving as the conservatives’ primary battleground. That’s the reality we have to reckon with, particularly after hearing Justices Thomas and Samuel Alito express willingness to resurrect the Comstock Act — an archaic 1873 “chastity law” that prohibited the mailing of “obscene materials,” including tools or drugs that could be used in an abortion — during oral arguments.

For all these reasons and more, it is therefore essential that we prioritize judges in much the same way the right has for decades. As I said at a Reproductive Freedom for All luncheon two weeks ago, we must tell President Joe Biden and our senators to nominate and confirm lawyers who have fought for reproductive freedom. 

We know what a difference they could make given all they did to preserve Roe against relentless assault for nearly five decades! While Trump judges like Kacsmaryk, Ho and Wilson are on the attack, imagine a set of reproductive freedom movement lawyers leading the resistance by protecting our rights the way judges are supposed to do.

Sadly, today, there are only two on the federal bench: Julie Rikelman (1st U.S. Circuit Court of Appeals), who argued Dobbs as a lawyer for the Center for Reproductive Rights and Nicole Berner (4th U.S. Circuit Court of Appeals), formerly general counsel for the service workers’ union SEIU, who began her career at Planned Parenthood. While their voices are welcome, we need more like them nationwide. We need more champions of reproductive freedom shouting down these attacks on the U.S. Constitution and the rights of pregnant people everywhere.

It can get so much worse, and the consequences for all pregnancies will only grow as was demonstrated in a recent report about pregnancy care in Louisiana. The fact that anti-abortion policy has been less politically popular since Dobbs provides us no comfort. Conservatives will not stop. If we want to preserve what we have left — let alone win back any ground — we have to acknowledge the very real and present threat and demand champions who will fight back.

Rakim Brooks is a public interest appellate lawyer and the president of Alliance for Justice. As a contributor to Democracy Docket, Brooks writes about issues relating to our state and federal courts as well as reforms to our judicial systems.

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