by Ann Menasche
The opinion below is that of the author and does not necessarily represent those of Feminists in Struggle.
The contemporary anti-feminist backlash is reaching far back into our nation’s history – the mid to late 19th century – to revive horrible misogynist laws that should have been long dead and buried. These laws arose during an earlier backlash against the First Wave of Feminism, in response to women organizing against our oppression. That was a time when women still didn’t have the vote, and could not own property. However, the birthrate for white women had fallen to 3.5 child per couple from seven in 1800, with abortion commonplace and performed by women. This was of great concern to the white fathers running the country including those of the medical establishment just consolidating their power.
One such “zombie law” is Arizona’s draconian anti-abortion law which outlaws virtually all abortions, recently upheld by the Arizona Supreme Court. Under this law passed in 1864 anyone who provides supplies or administers an abortion or abortion drugs can be charged with a crime and if convicted, receive between 2 and 5 years in prison. The only exception is when the abortion is necessary to save the life of the woman.
Another “zombie law” is the 1873 Comstock Act against obscenity, a law that bans the use of mail to transport “lewd” materials. This law was used to imprison and deport lesbian Jewish radical leftist Eve Adams in the early twentieth Century for authoring a book containing lesbian love stories. She ended up dying in the Holocaust. The Comstock Act’s anti-abortion provisions are being resurrected by the Christian Right in the case against the FDA currently pending before the Supreme Court aimed at stopping the distribution of the abortion drug, mifepristone.
But it gets worse. The current backlash is impeding the ability to fight back effectively against this attack. The strongest argument for abortion rights especially post-Dobbs is the equality argument, i.e., that abortion bans and restrictions discriminate against women as a sex. This was recognized by Justice Ginsberg decades ago when she wrote, “Legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather they center on a woman’s autonomy to determine her life’s course and thus to enjoy equal citizenship stature.” It has been successfully argued in states that have state ERAs such as Pennsylvania where that state’s Supreme Court opined that pregnancy is a sex based condition and abortion restrictions impact women’s status. The sex equality approach to abortion rights would be even stronger if abortion advocates argued that the fully ratified national ERA should be treated as the law of the land and a strict scrutiny test utilized to challenge anti abortion laws as discriminatory against women.
Yet, abortion rights groups like Planned Parenthood, the National Abortion Federation and Trust Women are helping the enemy by disappearing women from the picture, talking about “pregnant people” and “birthing bodies.” To make matters worse, Trust Women recently force- teamed abortion rights with access to so-called “gender affirming care” the euphemism for the sterilization and mutilation of lesbian/gay and gender non-conforming adolescents and young people through puberty blockers, cross-sex hormones, double mastectomies, and genital surgeries. This is a kiss of death to the abortion rights struggle. As the Cass Report issued by the National Health Service in the UK documented, child transition is without a basis in scientific evidence and is far more harmful than helpful. It is causing untold harm to a generation of mostly lesbian and gay youth who have been indoctrinated to believe their body is “wrong” and in need of these drastic medical interventions to be themselves. “Gender affirming care” has nothing to do with the right to safe legal abortion which is essential for women’s freedom and is shown to save women’s lives.
Abortion is about the fundamental right of WOMEN to decide if and when they will bear a child. A feminist struggle is what won abortion rights to begin with and it is the only force that can win it back.