The GOP’s War on Women: Using the justice system to roll back the clock on legal rights

In about six months, women in thirty Republican-controlled states will probably lose their right to get an abortion.

The Supreme Court and the Constitution don’t “grant” or “give” Americans rights: they recognize rights and define the extent to which they can be infringed upon by our government, theoretically balancing private rights against the public good.

That said, the Court can take away rights, although throughout their 240+ year history they have only done it in a big way once: in 1896 with their Plessy v Ferguson decision that, until they reversed it in 1954 in Brown v Board, took away the freedom and voting rights of African Americans for half a century.

In the case of Roe v Wade, the Court ruled in 1973 that women have both the 14th Amendment “liberty” right to control their own bodies and the 4th Amendment “privacy” right to keep it between themselves and their physicians.

Now, in a repeat of Plessy, it appears the Court is preparing to take away a constitutional right, this one being the right of women to autonomy over their own bodies.

But that is just the first of a series of ideas Republicans have to regulate women’s behavior and roll back the clock to the early 1960s when women could not get a credit card without their father’s or husband’s permission, had no legal right to birth control in some states, and faced fully legal discrimination in housing, education and employment.

Next up on the GOP’s agenda to strip women of political and economic power will be banning most forms of birth control used today, including birth control pills and the IUD.

Step one is to hyper-regulate “morning after pills.”

While Texas’s 100% GOP SB8 law that puts $10,000 bounties on friends of women who get abortions receives all the attention, that same week the Texas legislature passed SB4.

This particularly insidious law makes it a crime for women to be prescribed abortion-inducing Mifeprex (works up to 70 days after the last menstrual period), Cytotec (works up to the 13th week of pregnancy) and methotrexate (works up to the 9th week of pregnancy) any later than three weeks after missing a period.

The law specifically criminalizes physicians and healthcare institutions who prescribe or provide these drugs outside of that parameter. When reporter Lauren Windsor asked Texas Governor Greg Abbott straight up if he’d be able to ban birth all control pills in Texas he suggested it was still possible.

Which, of course, is step two in the GOP’s War on Women.

Republicans — most famously Rick Santorum — have run for president saying that states have the right to ban birth control pills, and multiple states are pushing so-called “personhood” bills that specify that human life begins at the moment of fertilization in the fallopian tubes.

“Personhood” bills that would define any birth control method that prevents the fertilized egg from implanting in the uterine wall — which includes IUDs and all birth control pills — have passed at least one legislative branch in Montana, Kansas, Virginia, Tennessee, North Dakota, Arkansas, and Mississippi and been introduced by Republicans in Ohio, Georgia, Maine, Texas, South Carolina, Oklahoma, Iowa and in the US Congress.

The Personhood Alliance has affiliates all across the country, and a huge network of activists: once Roe v Wade is dead next summer, expect an explosion of activity in this next level of the GOP’s War on Women. Many Catholic leaders and multiple hard-right white evangelical denominations are on board as well.

There’s a long history here. Among the earliest laws of the American Colonies were those putting power over women into the hands of men, as I documented in my book Unequal Protection: How Corporations Became “People” And How You Can Fight Back:

• A married woman was not allowed to make out a will; she was not allowed to own land or legally control anything else worthy of willing to another person.
• Any property she brought into the marriage became her husband’s at the moment of marriage, and would only revert to her if he died and she did not remarry.
• But even then, she’d only get one-third of her husband’s property, and what third that was and how she could use it were determined by a court-appointed male executor, who would supervise for the rest of her life (or until she remarried) how she used the third of her husband’s estate she “inherited.”
• When a widow died, the executor would either take the property for himself or else decide to whom it would pass: the woman had no say in the matter, because she had no right to sign a will.
• Women could not sue in a court of law, except by the weak procedures allowed to the mentally ill and children, supervised by men.
• If the man of a family household died, the executor would decide who would raise the wife’s children, and in what religion: she had no right to make those decisions and no say in such matters.
• If the woman was poor, it was a virtual certainty that her children would be taken from her.
• It was impossible in the new United States of America for a married woman to have legal responsibility for her children, control of her own property, buy or sell land, or even obtain an ordinary license.

And, as today’s “personhood” advocates will enthusiastically tell you, the roots of this situation are not recent:

• Pandora opened a box and humanity suffered; Eve ate the apple and her god has been angry with humans ever since.
• St. Paul wrote in his letter to the Ephesians, “wives be subject to your husbands,” a single phrase that became the foundation of British and American law for centuries.
• In the 4th century, St. Jerome, one of the most influential patriarchs of the early Roman Catholic Church wrote, “Woman is the gate of the devil, the path of wickedness, the sting of the serpent, in a word a perilous object.”
• Almost a thousand years later, Thomas Aquinas wrote that woman was “created to be man’s helpmeet, but her unique role is in conception…since for other purposes men would better be assisted by other men.”

Next summer it is safe to assume women will lose abortion rights in at last half of American states. If the personhood advocates in the GOP have their way, that could soon expand to birth control pills and extend across the entire nation.

And now the GOP’s Commission for the Promotion of Virtue and the Prevention of Vice is on its way. It is not as if we were not warned:

During Mike Pence’s first year as governor of Indiana, his state put a young woman in prison for having a miscarriage, alleging that she had taken an abortion-causing drug. Purvi Patel did not have a trace of such a drug in her system, but Pence’s state sentenced her to 20 years in prison anyway.

Just a few years earlier, Indiana had also held Bei Bei Shuai for 435 days in the brutal maximum security Marion County prison, facing 45 years to life for trying to kill herself and, in the process, causing the death of her 33-week fetus.

Utah charged 28-year-old Melissa Ann Rowland with murder because she refused a C-section, preferring vaginal birth for her twins, and one of them died.

Sixteen-year-old Rennie Gibbs was charged by the state of Mississippi with “depraved heart murder” when her baby was born dead because his umbilical cord was wrapped around his neck: her crime was that she had cocaine in her bloodstream, according to prosecutors.

Angela Carder was ordered to have a C-section to deliver her baby before she died of cancer; both she and the baby died from the procedure.

These cases have exploded in recent years, as the GOP and the nation’s law enforcement system have embraced the American “Christian” version of Sharia law which dictates that women are the property of men and their principal purpose for existence is reproduction.

According to Duke University’s Journal of Health Politics, Policy and Law, there were 413 documented—and probably thousands of lesser-known—cases of women being prosecuted for having miscarriages or attempting abortions between the time Roe v. Wade became the law of the land and 2005.

Between 2005 and 2014, the Guttmacher Institute documented another 380 cases.

Georgia just passed a law, signed by Republican Governor Brian Kemp, which puts any woman in that state who has a miscarriage at risk of 30 years in prison or even the death penalty. Other states are in line, and in those states, like Georgia, with the death penalty, many are proposing legislation to put women who have abortions to death.

And we know what happens when abortion is totally banned. Romania, with a population slightly smaller than Florida, banned abortion (although, unlike Alabama, they allowed a provision for rape, incest, and congenital abnormalities) in 1966.

While wealthy Romanian women were still able to get abortions by traveling to other nearby nations, that option was not available to poor women. At least 10,000 women died of botched illegal abortions (that is the official number; the real number is probably 10 times that) before Nicolae Ceaușescu was deposed and the law was repealed.

Few families were spared; maternal death was higher than any other country in Europe by a factor of ten and poverty exploded. When the country was opened to the world, over 170,000 children were found languishing in brutal orphanages, ignored, emaciated and handcuffed to cribs. Nobody knows how many died in the decades before that.

When Nicolae Ceaușescu was deposed in 1989, his own soldiers gleefully machine-gunned him and his wife to death. The same penalty Georgia would inflict on its women who get abortions.

Given that one out of four pregnancies ends in miscarriage (and new research suggests it may be as many as half of all pregnancies), laws like Georgia’s and Alabama’s may well require a substantial addition to our police systems.

Who is going to monitor all those pregnancies, and examine the women and the remains of their miscarriages to make sure there was not a drug or self-inflicted injury involved?

Who is going to make sure that women who are pregnant are immediately brought to the attention of the authorities if they’re reluctant to do so themselves?

When Governor Mike Pence proudly signed Indiana’s abortion restrictions in 2016, women across the state noted that it required that miscarried fetuses (along with aborted fetuses) be “interred [buried in a cemetery] or cremated,” no matter whether the pregnancy was six or sixteen weeks along when the miscarriage happened.

It led to a movement across the state called “Periods for Pence,” in which women tweeted or called the governor’s office to tell him when their periods had started and ended, so the state would not mistake a normal menstrual period for a miscarriage.

The press treated it as funny at the time; nobody’s laughing now.

The Republicans could borrow the name from Saudi Arabia for their police who scour the streets looking for badly behaving women; the “Commission for the Promotion of Virtue and the Prevention of Vice” would hire a few million upright “Christian” men who would each take responsibility for monitoring the menstrual cycles of 50 or 100 women.

Like in Saudi Arabia, it would be a real job-creator, boosting the economy while ensuring public morality.

Thanks to the internet, each woman who’s the ward of a particular commissioner could use modern technology to keep it all simple; like the Saudi Absher app that women use in that country to obtain a man’s permission to leave the house or date, American women could simply swipe “period started” and “period finished normally” when those events happen.

Just like actually happened during the Trump administration when Trump’s appointee to oversee our refugee shelters, Scott Lloyd, maintained a spreadsheet tracking the menstrual periods of every girl in his custody, some as young as 12, so he could flag pregnant girls and women to prevent them from getting abortions.

No doubt Facebook could help out with a handy algorithm based on women’s online activity.

The Supreme Court has already rolled back women’s protections in the workplace and with the current hard-right majority expect them to push even harder to take women back, at least, to the 1960s as mentioned at the opening of this rant.

In the 1960s, employers could fire women for getting pregnant, women had no legal right to a harassment-free workplace, were charged extra for health insurance, and could be legally raped by their husbands, among other indignities.

And this is just the start. Today the Court is hearing a case out of Maine that could require states to pay for the tuition of all students attending religious schools, using taxpayer money that normally funds public schools. This would include forcing states to pay for religious schools that openly discriminate against LGBTQ+ students and staff, and teach children that being gay is a sin.

Once Republicans are done with birth control they will be coming for gay marriage and, ultimately, broader civil rights laws themselves including, like in Hungary (their new role model), ending the rights to assembly, free-speech, and due process.

And if you think that is an over-the-top concern, consider: Just a few months ago, Ron DeSantis signed a bill into law that provides immunity to drivers who plow their cars into protesters, if those protestors are on a public street. They’re already going after our right of public assembly.

Winter is coming: next stop, Gilead.