The Supreme Court’s decision to overturn Roe v. Wade in Dobbs v. Jackson Women’s Health Organization is, first and foremost, a serious blow to the rights of women in the United States. It is not an exaggeration to say that women will die because of this decision. But it is also a serious attack on federally-protected civil rights.
Some see Dobbs as motivated primarily by right wing religious zeal and there is no question the religious-based anti-abortion movement sees the decision as a great victory. Dobbs is not, however, an expression of a culture war, but rather of class war. It is an assault on all working people by a ruling class that wants the federal government (and in particular, the federal judiciary) to abandon the role of protector of civil rights it has played since the end of World War II.
Rank and file evangelicals, conservatives, and even Trump voters are the cannon fodder in this class war, not the generals and commanding officers. Women, members of oppressed groups, and class conscious working people generally have no choice but to struggle with the far right at street level, but this is a war we will certainly lose if we don’t recognize it is the wealthy and powerful 1% giving the right wing its marching orders.
The importance of the Dobbs decision and the overturning of Roe v. Wade is threefold. First, it is the most serious attack on social progress since the end of World War II and will certainly threaten the lives of the millions of women who live in the twenty-six states that have banned or are expected to ban abortion. In many of these states access to abortion was already severely limited, but by removing the right to abortion from the protection of the United States Constitution it becomes possible for states to not only completely ban abortion but also use criminal prosecution to punish women and medical workers who defy these bans. In some instances, states have promised to engage in surveillance of women who are known to be pregnant in order to prevent them from accessing abortion clinics in states where the procedure is not illegal, or to criminally prosecute them if they do.
Just as it was before Roe v. Wade, state abortion bans will hit Black and Brown women as well as poor white women the hardest. The abortion that was difficult to obtain before may now become impossible, forcing women to rely on dangerous home remedies or treatment in “underground” medical clinics. And the impact on women’s access to health care is not limited to abortions. Only days after Dobbs, some rheumatology clinics have expressed fear over continuing to treat women patients with rheumatoid arthritis or lupus with methotrexate, a medication that increases the risk of miscarriage, due to possible criminal liability. Doctors treating cancer patients have observed that there are circumstances where they consider the option of terminating a pregnancy a necessary part of their patient’s treatment and express concerns they can no longer do so. Moreover, any woman who already is pregnant and is considering an abortion may have no choice but to avoid receiving professional health care that might cause her condition to be reported to authorities.
Wealthy women will – as they always have – be whisked off to private clinics whether in state, out of state or even outside the US to ensure their ability to terminate unwanted pregnancies or receive medical treatments that prioritize their health and well-being over the survival of their fetus. After all, in Canada, most of Europe, and China, abortion is available solely on the basis of a woman’s request, with no other requirements. In some nations, such as the UK, not only does a woman have access to abortion, but generally there is a national health service that provides medical treatment at low or no cost.
Working women who do get abortions – and the activists, social workers, and medical workers who assist them in either obtaining care in state or traveling out of state – will live under the fear of criminal prosecution, the destruction of personal lives and professional careers, and even prison sentences. In the most restrictive states, absent any federal limitations, abortion bans will consign most women to a permanent status of second class citizen whose fundamental right to any form of medical care, mental health counseling, or personal privacy may be subject to investigation or suspension at any time.
The Dobbs decision is also important because it is the first time in nearly eighty years that the Supreme Court has used its power to interpret the law to take away a well-established legal right. Further, it sets out a road map for the elimination of all federal rights not explicitly stated in the Constitution, while pointing further down the road at the end of all federal enforcement of rights as against the states. Justice Thomas, in his concurrence in Dobbs, urged his colleagues that “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” citing to the Supreme Court cases that, respectively, gave constitutional protection to contraception, same-sex intimate relationships, and same sex marriage. Implicit in Thomas’ statement is the conclusion that no right to personal privacy exists in the Constitution, opening the door for attacks on civil rights that go even further.
Cumulatively, the Constitutional right to privacy that Justice Thomas suggests no longer exists has, since Griswold v. Connecticut was decided in 1965, been a major factor in protecting the ability of people to make personal decisions about their sexuality, their access to health care, their intimate relationships, and their families Its surgical removal threatens families: inter-racial families, families led by single parents, families in which a same sex couple raise children, families in which a parent or child identifies as lesbian, gay, bisexual, transgender or non-binary, and families into which a child is adopted or fostered. If none of these are protected by a Constitutional right to privacy, then what, if any, are the limits on a state’s ability to dictate with whom we can have intimate relationships, with whom we can live, and how – or whether – we can raise children.
Finally, and as if the dangerous implications described above are not frightening enough, the Supreme Court’s decision in Dobbs is the most serious challenge to date of the role of the federal government as a protector of rights. Since at least 1954, when the Supreme Court ruled in Brown v. Board of Education that the 14th Amendment to the Constitution made racial segregation in public schools illegal, members of oppressed groups and people holding unpopular viewpoints have relied on the federal court system to protect civil rights when states would not do so. The narrow view of the Constitution and of rights that the majority of the Supreme Court now appears to embrace threatens to end this era.
Since some of the earliest debates in the US about slavery, the right wing has rallied around the slogan of “states’ rights” to justify everything from fugitive slave laws to racial segregation to attacks on workers, women, LGBTQ people, and immigrants. The Supreme Court has now opened the door for more aggressive state action on a host of issues by erasing entire categories of federal, Constitutionally-protected rights. Dobbs’ view of the Constitution and the scope of federal power predicts the carving up of the Bill of Rights to permit more state-based restrictions on speech, association, religion, civil due process, and the rights of the criminally accused. It is a clear message to state legislatures that challenges to long-standing legal precedents in the realm of federally-protected rights will be taken more seriously than has been the case in nearly a century.
That Dobbs itself, nor even Justice Thomas’ concurrence, does not go this far should not be a source of relief. In recent years, governors, state attorneys-general, state court judges and legislatures have not waited for the federal courts to approve their most crackpot ideas before trying to bring them into existence. In appealing to knee jerk populism, state officials have championed laws, for example, that would prohibit state courts from citing Islamic legal principles, mandate that teachers in public schools be armed, prevent the federal government from relocating refugees to their state, and require that parents of a self-identified transgender child be investigated as “unfit.” Future efforts to tear up the Bill of Rights or attack unpopular minorities may or may not survive Supreme Court muster, but Dobbs has given legislators more reason to hope than ever.
If Dobbs v. Jackson Women’s Health Organization disarms the federal government as a protector of rights and empowers state governments to set back a century of social progress, doesn’t that prove this is about a culture war of the radical right against their traditional enemies: feminist women, sexual minorities, racial minorities, and secularists? No doubt the radical right is emboldened by what Dobbs does and promises to do. But if this is a war, the question we should be asking is not who are the front line troops that champion these causes, but rather who are the generals with the power?
The Dobbs decision itself tells us a great deal about who is giving the orders. After all, this reactionary victory is not the result of religious zealots converting the majority of the population to their puritanical and misogynistic views, nor are there any prominent political figures (the ex-president notwithstanding) who brought this attack on women to fruition. Dobbs is a decision by the Supreme Court of the United States: a thoroughly undemocratic body of nine justices, almost all from wealthy backgrounds and with credentials from the most prestigious law schools in the country. These justices are appointed for life by a president who is not democratically elected by popular majority but by an electoral college, and their appointments are ratified by the members of the United States Senate, a body that since the 1890’s has been popularly known as “the Millionaires’ Club.” All of this, of course, occuring in a political system in which, in the last campaign cycle, the median amount of money raised by a sitting senator running for reelection was $13.2 million.
If we are in the throes of a culture war, as often portrayed by the Democratic Party leadership, against religious fanatics, uneducated rednecks, and right wing extremists, then who is bankrolling them? Is it solely well-known right wing funders like the Koch Brothers? The evidence suggests otherwise.
Take, for example, the tale of the far right One America News (OAN) media network, which championed Donald Trump even when Fox News was wavering. OAN was established in 2013 and claims to have as many as a half million viewers and a YouTube channel with one and a half million subscribers. OAN’s founder, Robert Herring Sr., testified in a deposition in 2020 that when he sought funding to create OAN he received a warm reception from Direct TV, a subsidiary of AT&T, because the company had already decided that there was a market for a television news station to the right of Fox News and that such a station would boost Direct TV’s marketing in semi-rural and rural areas. Funding was conditioned on a promise that OAN news would place Direct TV in a “positive light” in its news coverage. Herring also testified that, since 2013, 90% of the funding for OAN came from Direct TV and that, without its support, OAN would simply cease to exist.
It is scarcely surprising that a company, especially a media company, might want to invest in a news channel that promises friendly news coverage. But in this case, it is clear from Herring’s testimony that OAN was, for all intents and purposes, founded by and run with Direct TV’s money.
Yet its parent company, AT&T, prominently associates itself with progressive causes such as celebrating June as LGBTQ Pride Month. The corporation that kept OAN on the air for a decade promoting some of the worst and most vicious anti-LGBTQ bigotry also helps to fund and promote a crisis intervention and suicide prevention program for LGBTQ youth called The Trevor Project. If this is a culture war, why is AT&T funding both sides?
There is another inference that can be drawn from these instances of major corporations funding both sides in the so-called culture war. Simply put, what the media tells us is a culture war is really only a culture skirmish, a single battle in a war that is not about how you voted for president or whether you have been “born again.” That class war is about whether you are among the 99% of people living in the US who are struggling with high prices, low wages, job insecurity, and lack of access to necessities like health care, decent housing, education for yourself or your children, and the ability to retire before you have worked yourself to death, or among the 1% who profit from the conditions of exploitation for the rest.
One of the great battles of the women’s movement over the last fifty years has been to erase the wage gap between women and men – a series of wage gaps, really, where Black women are at the bottom and white men at the top. It’s not hard to see how, in those states that outlaw abortion and impose harsh criminal penalties, women will be stigmatized in ways that will help to keep them subordinate in the workplace. Similar short-term rollbacks in those states on the rights of other oppressed groups will help to keep them subordinate as well, and to keep the working class divided by maintaining the existing system of privilege for white men.
Moreover, it is the same system of federal protection for civil rights that ensured women’s right to abortion and that protect same sex marriage also made possible laws – and the enforcement of laws – that prohibit discrimination in the workplace and guarantee the right to a minimum wage, to a safe workplace, to a union, to equal access to education, to accommodations for disabilities, and that create a legal framework to challenge police brutality, disparities in criminal sentencing, and inhumane prison conditions in court. Yet it is the same undemocratic institution that ignored the will of the great majority of the American people in issuing its decision in Dobbs.
Yes, Dobbs is delighting that minority of the American people who believe in outlawing abortion. Yes, it is a big win for those who think they can turn back the clock to an utterly imaginary “good ol’ days” in which women “knew their place.” But the real victors in the battle over abortion rights are the wealthy few who benefit from every division and every form of oppression that exists in the working class. It remains for the future – and for the extent we learn to challenge the divisions created by America’s corporate masters – to say who will win this war.
Peter Goselin has practiced labor and employment law in the Hartford area for more than 25 years. He is a member of the Connecticut chapter of the National Lawyers Guild and a co-chair of the Green Party of Connecticut.
