The U.S. Supreme Court’s decision allowing many states to end or sharply curtail abortion rights will have profoundly harmful effects on those who are forced to continue unwanted pregnancies and on democracy itself, says UC Berkeley legal scholar Khiara M. Bridges.
The court, carried by its conservative majority, voted 6-3 to overturn Roe v. Wade and Planned Parenthood v. Casey, historic decisions that enshrined the right to abortion over the past half-century. The decision will jeopardize the well-being of less-privileged people in red states, Bridges said, while representing a symbolic threat to women everywhere.
Roe and Casey didn’t just legalize abortion — they helped to drive profound changes in U.S. culture. The power to end unplanned or unwanted pregnancies offered new power in relationships and new opportunities at work. And the constitutional privacy provisions that supported abortion rights in time extended to LGBTQ+ people, as well.
But as Republicans systematically work to raise barriers to voting, Bridges says, voters may struggle to overturn unpopular law.
Bridges is a professor at Berkeley Law, and she has written extensively on race, class, reproductive rights and the intersection of the three.
This interview has been lightly edited for clarity.
Berkeley News: What was the court’s legal reasoning in coming to this decision, which was so different from the reasoning by an earlier Supreme Court in Roe v. Wade in 1973? And what do you make of the reasoning?
Khiara M. Bridges: The reasoning is simply that the right to an abortion is not supported by a constitutional text or the nation’s history and tradition. The majority opinion spends a lot of time justifying overturning Roe because there was a Supreme Court 49 years ago that believed the exact opposite, that the Constitution protects the right to an abortion. The difference between the court in 1973 and the court in 2022 is really just personnel.
The Republican Party has made it a priority to stack the federal judiciary, including the Supreme Court, with justices who would be willing to overturn Roe. The plan worked. We now have six justices who have been hostile to abortion rights.
Many of the conservative justices on the court embrace a particular method of interpreting the Constitution — originalism, which tries to divine what the framers were thinking when they were drafting the Constitution back in the 1700s. So, it’s just an entirely different interpretive method than what a majority of the court used in 1973. It’s so important, also, to remind people that the court back then ruled 7-2 on Roe. It wasn’t even close.
Now we have six justices who believe Roe was flat-out wrong — “egregiously wrong,” in their words —and they overturned it. So, it’s a different time we’re living in.
Are there particular groups of people, particular classes of people, who are going to be more profoundly affected or harmed by today’s decision? What kind of harms do you expect will flow from the decision?
I am fine, and people like me are fine. People who have some degree of class privilege, people who are living in blue states. We’re fine.
It’s unprivileged folks in red states where legislatures have been chomping at the bit to criminalize abortion or otherwise make abortion unavailable. Those folks are most profoundly affected by this decision.
For a lot of people, this will be a symbolic harm. For a lot of feminists, today’s decision is offensive because it symbolizes men telling women what to do with their bodies. It’s profoundly anti-feminist.
But I care more about the non-symbolic harm of today’s decision. I’m most concerned about those folks for whom this is a physical harm — this will affect them in their literal bodies because they’re going to have to carry a pregnancy to term that they otherwise would not.
And those are the unprivileged folks. Those are the folks who can’t travel to California. Those are the folks who can’t get away from an abusive partner long enough to get to a jurisdiction where they can have a safe and legal abortion. Those are young people, and undocumented people who can’t travel past the immigration checkpoints. Those are people with mental and physical disabilities.
Those folks are most profoundly affected — and by ‘most profoundly affected’ I mean they are actually affected, they are affected in their actual bodies and their actual lives.
The court’s ruling today is a legal decision, and the ruling is based on legal reasoning. But in your view, this desire or this imperative to control people’s reproductive choices — where does that come from? What drives it?
I think it’s very deeply embedded in our norms and values and expectations and beliefs around women’s place in society.
A large portion of our society believes that women, people with a capacity of pregnancy — but most have cis-women in mind — ought to be mothers. And being mothers, that’s their place, that’s their role. That if they have sex and they end up pregnant, well, of course you’re going to become a mother because what else are you supposed to do with your life?
But people on the anti-abortion side will tell you that they’re trying to save the unborn.
A lot of folks will tell you that they actually just care about fetuses. I just don’t believe that. I cannot believe that you care about a fetus if you do not care about the conditions under which a fetus will live once it becomes an actual baby.
Since 1973, anti-abortion folks should have been building a social safety net. They should have been making it so that kids can live in healthy environments with food and shelter and clothing and health care. They should have been working for the past 50 years to make it so that children would be breathing healthy air and living a decent life.
But they haven’t done that. They’ve been solely focused on making it impossible for people to terminate a pregnancy. It is the most inconsistent of practices to fight for the ability to criminalize abortion and not fight for a healthy environment in which children can be born. So, I just don’t believe them.
Obviously, this issue and the court’s decision today will generate intense passion, intense emotion. Given this historic reversal, how do you think this is going to shift or change politics and political orientation in the United States? And in particular, here, I’m thinking of the orientation of people who lose access to abortion.
The polls show that most Americans believe that abortion should be available in some circumstances. Very few Americans, only a minority, believe that abortion should never be available. And so, as the Supreme Court lays the foundation for states to make abortion unavailable altogether, the law will be misaligned with what the electorate desires.
And if that’s true, then maybe the electorate, the voters, will vote in new politicians. It’s possible that the reversal of Roe will create the circumstances under which people are motivated to elect officials who will represent their desires.
But that’s only if democracy is functioning. I think we all know that, of a piece with efforts to overturn Roe, the Republican Party has been engaging in widespread voter disenfranchisement, making it harder for marginalized people to vote. They’re making it harder for us to call the U.S. a democracy.