The perception in most circles is that the Supreme Court’s Roe precedent is the front line to reproductive rights. The perception is that, until Roe  is overturned — which many expect will eventually happen, thanks to the dogmatic misogyny of Supreme Court ideologues and sympathetic characters — women’s reproductive rights are safe. The perception is that if and when Roe  is overturned, that is when the battle begins.

But the war is already well underway. And battles are already being lost. The perceptions that the war has yet to start are wrong.

Today marks the onset of hearings to fill the Supreme Court. As I write this, the hearings have started, with the obligatory “thank yous” and self-inflation that mark such occasions. And then the games will begin.

And women’s lives will be on the line.

We’ve already been given notice that the purportedly pro-choice committee chair will not go against his party and ask Judge John Roberts about Roe. Will the Democrats? And will they go beyond questions and actually back up their concerns with their vote?

We’re accustomed to a lot of firm talk from Democrats lately. Sadly, we’re also accustomed to a lot of knuckling under after the speechifying is over. Will this be any different?

Will it matter?

Like the Maginot Line of WW2 that was supposed to defend France from German aggression, Roe has served as an image of defense of reproductive rights, an image of the front lines. But the enemy has flown over Roe and engaged battle state by state, and women are losing.

Women caught in TRAP laws

For years, the anti-abortion movement has pressed its case with noisy demonstrations that blocked clinics, with high-profile legislation that directly challenged the U.S. Supreme Court decision Roe v. Wade, and in some cases with violence, including the assassination of physicians. But 28 years after Roe, with public support of abortion rights running high, the movement has adopted what might be called a stealth strategy: to chip away at abortion rights, slowly and discreetly, with low-profile legislation and lawsuits that stop short of trying to outlaw the procedure.

The new tactic is to bombard providers with a barrage of costly rules. In addition to the civil-liability law, Louisiana has tried to slap abortion providers with extra-stringent building codes that regulate everything from the width of hallways in clinics to the angles and jet types for drinking fountains. Abortion opponents want to create small, expensive obstacles that cumulatively make it harder for clinics to offer services–or, in the words of one right-to-life leader, to create an environment “where abortion may indeed be perfectly legal, but no one can get one.” Not only does the tactic have the benefit of generating little public attention, but it also allows anti-abortion activists to couch the issue in terms of a woman’s welfare–for example, the right of a patient to sue her physician for unlimited sums.

States all over are passing TRAP laws. Louisiana has had one since 2001. A US District Court just upheld a 1998 Ohio trap law.

The new law requires that at least one parent give his or her consent to the abortion. Girls are still free to go to court to ask a judge for an
order to bypass that consent requirement, but the abuse defense can no
longer be used.

And how has it escaped people’s notice that Texas passed a law allowing execution of doctors who abort a pregnancy? The Operation Rescue agenda of executing doctors is now legally sanctioned.

These are not unique instances. TRAP laws are being enacted in many states.

And now House DemocratsDEMOCRATS! (who, by the way, dropped the ERA from their platform) — are about to introduce HR 748, which, among other things, prevents anyone, even a parent, from transporting a minor across state lines to have an abortion. Forget parental rights. Forget legal guardianship. When it comes to breeding, this bill gives the state sovereignty over the womb.

All the courts, not just the Supreme Court

Circuit courts and state courts are affecting people’s lives every day. For example:

In fact, abortion opponents have found that the courts are as powerful a tool as the state legislatures. In the past few years, clinics and doctors have been hit with a spate of lawsuits claiming that women didn’t give proper consent for an abortion or suffered psychological damage afterward. “A case will be brought against a provider that will most likely be thrown out,” says Mueller of the National Abortion Federation. “However, the physician still has to go through a lengthy court battle, and endure costs and publicity throughout the case.” Even the most far-fetched claims can hurt clinics. Anti-abortion lawyer John Kindley recently wrote a 21,000-word article in the Wisconsin Law Review suggesting that malpractice suits against abortion doctors “may serve an important role in raising public awareness” of the alleged abortion-breast cancer link. Kindley put that theory into practice in 1999, suing a Fargo, North Dakota, clinic for disputing the breast-cancer theory in a brochure. Even before the case has gone to trial, the Red River Women’s Clinic has been forced to pay $5,000 in legal fees. “Part of their strategy is to drag this out as much as possible,” says clinic administrator Jane Bovard. “They do everything they can to make us incur more expenses. I think their goal is to nickel away at us, to make it too expensive to provide services.”

This points up the importance of having judges who respect human rights on all courts, not just the Supreme Court. (Do you know how many Democrats of the Gang of 14 who compromised with Republicans to avoid a fillibuster showdown are “pro-life”? Does that shed any light, perhaps, on why they felt someone like Janice Rogers Brown would be okay?)

This is what happens when women’s reproductive rights are not considered “important shit.” This is what happens when women are sold up the river in the name of “party unity.” This is what happens when party politics trump morality.

Now is the time to take a stand

We’re hearing a lot of strong rhetoric from Democratic Senators today. They say they are showing their colors. They are talking a good game. But will they walk the walk?

Now is the time for all of us who care about gender equality and liberty to stand up for what we believe. Either that, or we can welcome coat hangers back into women’s healthcare, and I don’t believe anyone but the most rabid misogynist wants that.

[Distilled and expanded from a post on]

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