There was a political and legal earthquake in the United States this week, in the form of a leaked draft of a majority opinion of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization. The opinion, written by conservative Justice Samuel Alito, would, if ultimately officially issued by the Court, overturn the constitutional right to abortion and send the issue back to legislatures. It would permit any state in the United States (and possibly even the federal government) to ban abortion entirely or to impose severe restrictions on its availability.
Obviously, this would be a major sea change in American law, where women have had a right to a safe and legal abortion since the Court’s Roe v. Wade decision in 1973. And while correlation is not causation, that 49-year period has been a time span that has seen the acceptance of women into every sort of workplace, a dramatic rise in the popularity of women’s sports, and the ongoing liberalization of sexual norms. America is a very different place in 2022 than it was when abortions were often illegal and sometimes hard to obtain.
Roe v. Wade backstopped women as they eschewed the narrow choices of marriage and motherhood that were foisted on previous generations. It provided an insurance policy for women who took advantage of the new opportunities afforded by the sexual revolution: they could now seek sexual partners outside of marriage, and openly have sex for pleasure without having to worry that they would be, in President Obama’s phrase, “punished with a baby.”
This is obviously the major story here. While it was well known that the Republican Party, whose presidents had appointed six of the nine justices on the Court, had deliberately inculcated and selected judges who were likely to seek to overturn Roe, and liberals had long warned that the Court would seek to do this if the opportunity arose, there was something far more real and jarring about actually reading the written words of a Supreme Court Justice, presumably speaking for himself and four of his colleagues, a majority, announcing that Roe would, in fact, be overturned.
And yet, weirdly, the public discussion of this leaked opinion, especially online and on social media, quickly veered off from the upcoming radical societal changes called for by Justice Alito, to other collateral matters. The discourse is just not comfortable discussing abortion.
For instance, you would think that the Right might be celebrating, at least in a low-key way, what looks to be their side’s achievement of one of its central political goals, a whale that their movement has been chasing and attempting to harpoon for decades. But, in point of fact, Fox News and other conservative outlets spent as much time, perhaps more, discussing how outrageous it was that the draft opinion was leaked as they did describing what the draft contained.
To be sure, guessing the leaker is a favorite parlor game of Washington journalists whenever a big leak like this happens and, perhaps because of Twitter, all of us now get to participate in the speculation. Nonetheless, why would conservative media be particularly concerned about this, especially given not only the impending right-wing victory on the merits of the case but also the fact that there is some informed speculation that, actually, a conservative may have improperly leaked the draft opinion?
But it’s not only conservatives who are changing the subject. Over on the Left, facing a generational threat to women’s rights, American liberals wanted to talk about birth control and gay and interracial marriage. This, they said, was just the beginning. Justice Alito and the conservatives on the Supreme Court will not stop at abortion. They are going to ban birth control next and overturn the Obergefell case that required states to recognize same-sex marriages, and even junk Loving v. Virginia, the 55-year-old case that recognized a constitutional right to marry a person of a different race. (This last claim was particularly ridiculous, given that one of the conservatives who signed on to Justice Alito’s draft, Justice Clarence Thomas, is a black man married to a white woman. Apparently, Justice Thomas stands ready to vote to potentially invalidate his own marriage.)
Why does nobody want to talk about abortion? My thoughts immediately landed upon Judd Apatow’s screwball comedy Knocked Up, in which he satirized the trepidation of creators of mass entertainment to even discuss abortion by having Jonah Hill say to a pregnant Katherine Heigl: “I won’t say the A-word, but it rhymes with smashmortion.”
In fact, while, in general, there have been great advances in women’s rights since Roe was decided, in terms of public discussion and depiction of the abortion issue, we went backward. In 1972, the hit sitcom Maude’s titular character had an abortion; the series’ creator, Norman Lear, specifically told the press that he refused to script a less controversial ending, such as having the character have a miscarriage, because he strongly believed a woman in Maude’s position would have an abortion. In 1982, nine years after Roe, Amy Heckerling made Fast Times at Ridgemont High, a comedy about teenage sex that was a huge hit and launched the careers of, among others, Sean Penn. In Fast Times, the main character, a high schooler named Stacy, facing both peer pressure and pressure from her date, has an extremely unsatisfying experience losing her virginity with a guy she barely knows, finds herself pregnant, and chooses to abort.
More recently, however, the dramatic options that were available to Lear and Heckerling have been taken away. There are still many unplanned pregnancy plotlines in mass entertainment, but these pregnancies seem to almost never end in abortion. In Knocked Up, of course, she not only has the baby but also gets the guy in the end. The titular character in Juno, a teenager who, just like Stacy in Fast Times, faces enormous obstacles in having her baby, nonetheless carries the pregnancy to term. In 1991, the title character in Murphy Brown (a 45-year-old star network news anchor who had shown no interest at all in children) got pregnant, and, lo and behold, she had the baby. (Tellingly, the only prominent criticism of this plot arc came from the Right: conservative Vice President Dan Quayle said that it “mocked the importance of fathers” because Murphy chose to have her baby as a single mother.)
We have become really squeamish about discussing abortion. Why might that be? Well, one obvious reason is because discussing abortion requires discussing sex and the reasons women have it. While America has progressed a lot on both sexual liberation and women’s rights, it is a country with Puritan roots. Slut-shaming is still a thing. Indeed, while abortion rights generally poll very well in the United States, the differing responses to specific questions show that judgments about the reason women are having sex are not far from the surface. In a 2018 Gallup Poll, large majorities (up to 83 percent) supported legal abortions when a woman’s life is endangered, the fetus will be born with a mental disability or life-threatening illness, or the pregnancy is the result of rape or incest. But for “when the woman does not want the child for any reason,” 53 percent of the public said they thought abortion should not be legal and only 45 percent said it should be legal. Americans divide the world of abortion patients into virtuous and less virtuous women and sympathize more with women who need abortion services for the “right” reasons. Those poll results show that some people might indeed want to, in President Obama’s phrase, punish women with a baby.
Now, to give the Right its due, obviously one reason abortion is such a controversial issue is because many people sincerely believe the procedure takes a human life. And while there are some absolutists on the Right (including some who would even prohibit abortion if the woman’s life were in danger or she had been raped), many who identify as “pro-life” are making an argument that, while an abortion in some extreme circumstance may be justified, one should not take human life casually or without an extremely compelling reason.
Nonetheless, I don’t think that fully explains the squeamishness of Americans to discuss abortion. When, in an earlier controversy, conservative groups attacked the mandate that insurance companies pay for contraception contained in the “Obamacare” health care law passed and signed in 2010, liberals in the reproductive rights movement responded by promoting all the other reasons, besides preventing pregnancy, why Americans use birth control: regulating periods, preventing cysts, etc. While, of course, I would never deny that some women do take the pill for these reasons, the fear of the Left, a movement of people who presumably believe in sexual freedom, to openly defend women who take birth control pills so they can have sex says something very profound about the country. If we can’t even talk about that, how can we talk about abortion?
There are also some other specific reasons for the conservative and liberal reactions to the leak of the Alito draft. On the conservative side, there is simply the fact that Roe is popular, and the abortion bans that will take effect in over 20 states if the Court overturns Roe are not. Engaging in a game of “Whodunit” thus allowed conservatives to avoid telling their audiences that American women might be on the cusp of losing important rights.
And on the Left, there is clearly a visceral fear, which liberals come by honestly, that the Right is capable of anything. After all, we didn’t think influential members of one of America’s two major parties would attempt to change the result of a presidential election through forceful means. And, more to the point, there is a belief that the Supreme Court is capable of anything. This has been brewing for some time: in 2000, five justices installed George W. Bush as president and stopped the recount of a contested election based on reasoning that those justices would have never accepted in other cases. In recent times, we’ve seen the Court invalidate the emergency measures intended by President Biden to save people’s lives during the pandemic.
But we must talk about abortion. The threat right now isn’t Supreme Court leaks or a supposed plan to ban birth control or gay marriage in the future. The lives of American women, and the progress that they have made over the last 49 years, are in jeopardy now. And a society that doesn’t like to confront the fact that women want to enjoy their sex lives, that sometimes accidents happen, and that fetuses are sometimes conceived that women neither desire to carry to term nor are in a position to rear, will need to discuss openly whether it really wants to punish women, for the sin of being women, with babies.