Starting from Luccock’s citation, “when and if fascism comes to America, it will not be labeled ‘made in Germany’, it will not be marked with a swastika, it will not even be called fascism; it will be called, of course, ‘americanism’” (Luccock, 1938). The most recent judicial procedures regarding abortion rights in the USA show that with each day that passes, the American dream is more and more fascist and antifeminist.
To understand the history of American legislation concerning abortion rights, the concept of “fetus viability” must be defined, since this is the topic surrounded by all the polemics on this theme. However, the best way to comprehend this conceptualization is through the analysis of Roe v. Wade.
In 1970, Norma McCorvey, with the fictional name of “Roe” to protect her identity, started a judicial action against the district procurator from Dallas city, Wade, to argue that she deserved the right to abort since her pregnancy resulted from a rape situation, later denied by Roe herself. Wade represented the state of Texas, which was denying the legalization of abortion. Consequently, the judicial case went from court to court until it arrived at the Supreme Court that, on January 22nd, 1973, decided that it would completely change democracy in the US. With seven votes in favor and two votes against, the court stated that any woman, disregarding the reason behind her decision, has the right to voluntarily interrupt her pregnancy, until the fetus has become viable. Therefore, it was established that the viability of a fetus is “such a stage of [fetus] development [in which it is] capable of living, under normal conditions, outside the uterus” (Webster, 1996, p.1590). In other words, around 24 gestational weeks. At the time, the White House was under the republican administration of President Nixon, and this case completely divided the country into two movements: pro-Roe (pro-choice) and anti-Roe (pro-life). The Roe v. Wade decision forced all states to alter their state laws that restricted and/or forbade abortion.
However, it did not take too much time until Roe’s decision was confronted by “democratic forces”. In 1982, the Pennsylvania Abortion Control Act imposed “informed consent” and a reflection period of 24 hours for any woman that desired to do an abortion. By doing this, the conservatives brought, again, the abortion rights topic to the Supreme Court. Between 1973 and 1992, the Supreme Court radically changed from a more progressive judges’ distribution to a conservative majority. The new majority perceived the judicial Planned Parenthood of Southeastern Pennsylvania v. Casey (Casey case) as an opportunity to overturn Roe’s decision. Despite not revoking abortion rights due to the diversity of opinions, the Casey case legitimated the limitation of such rights. From that moment on, with the argument that they were protecting the undefendable unborn child’s future life, states acquired the right to forbid abortion if a fetus is viable (Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992). The pandora box was opened and it started the obscure path in the direction of the “americanism” that Luccock was warning about.
Despite not revoking abortion rights due to the diversity of opinions, the Casey case legitimated the limitation of such rights.
Consequently, since the 1990s, there have been more and more state attempts to pass more restrictive legislation regarding abortion rights. Although, in 2021, 71% of the American population is in favor of abortion, and, in 2019, there were only registered 630 thousand voluntary pregnancy interruptions (Statista, 2021), states ignore citizen’s voices and pursue their ideologically conservative vision at all costs, even if that implies the eradication of minorities’ rights.
However, these states are not alone in the fight for objectification and patriarchal and misogynist control of feminine bodies, because they have been receiving intense support from the ex-president of the USA, Donald Trump.
During his mandate, Trump had always manifested himself in favor of the pro-life movement. He was able to reduce the fundings for medical clinics and organizations that inform and perform abortions and to forbid both the health and planning of family budgets to be directed towards such agencies (Abortion: How do Trump and Biden’s policies compare?, 2020). Trump has never been afraid of showing his sexist, misogynist, and sickening personality and this is seen by the well-known expression “grab’em by the pussy”, and in his interview with MSNBC in which he both reveals that he is in favor of abortion illegalization, except in rape, incest, and danger to the mother, and says that if abortion becomes illegal, women that abort should be punished (Glenza, 2016). Additionally, since 2016, Trump has been saying that we would do the necessary to introduce three new conservative judges, with the last being Amy Coney Barrett that replaced Ruth Bader Ginsburg. Therefore, by positioning “America first and only America first”, Trump was a crucial element so that the antifeminist americanism rooted in the deepness of the conservative population could “legitimately” emerge without any shame.
In fact, Trump’s ignobility and his successive attacks against democratic values legitimized the more conservative states to restrict more and more the right to abortion, for instance, through the 2018 Mississippi Gestational Act (House Bill 1510) that forbids abortion after 15 weeks since conception, except in cases of severe fetus deficiency or medical emergency (Hansson, 2021). Henceforth, this legislative norm has become a direct attack against Roe’s decision.
Consequently, the debate about abortion rights has returned to the Supreme Court with the Dobbs v, Jackson Women’s Health Organization case. Dobbs represents the Mississippi state’s interests, and the Jackson Women’s Health Organization is the only women health’s clinic legally authorized to realize voluntary pregnancy interruptions in the state of Mississippi. Now, the clinic’s activists are starting a judicial case against their state because they consider the Gestational Age Act a fundamental violation of abortion rights. In spite of not getting international audiences’ attention, this case is the biggest impeller of the most recent and more restrictive anti-abortion measures that are being contested not only in the US, but across all democratic societies (Hassan, 2021). The foundation of Western liberal democracies is now even more corrupted due to sexism, male chauvinism, misogyny, and the patriarchal American system.
In fact, Western societies are becoming more and more shocked by measures such as the Texas anti-abortion law (SB8) which is a true affront to Roe’s decision by forbidding any abortion after six weeks of gestation, even in rape situations. Contextualizing, six weeks is only two weeks after a missed menstruation, which means that the large majority of women do not have any idea that they are pregnant, and if they discover after that date they can no longer abort. Besides, the law incites citizens to apply it by denouncing all the people that help women get “illegal” abortions in the state of Texas. Therefore, SB8 promotes the mobilization of the popular conservative masses to concretize their traditionally religious duty through the persecution of the “internal enemies” of the state which are those who help women abort (Astor, 2021). There is a defense of patriarchal values to detriment of the democratic values, which perpetuates a woman’s subordination as a reproductive object with the right to give birth as their only right.
Therefore, it is urgent to know what the current democratic actors think of the situation and the implications that laws such as House Bill 1510 and SB8 can have in the future.
On the one hand, nowadays the Supreme Court has a large conservative majority that was built throughout the past republican mandates (Giansiracusa, 2021), and that has been causing serious repercussions to abortion rights. Since the moment the SB8 was launched, the Supreme Court has authorized, for four times, the continuous application of the law, even though there is no final statement by the Court concerning the judicial case (Liptak, 2022b). Besides, people do not know when the Supreme Court is going to take the final decision and, until then, there are thousands of women who are being forced to continue with their undesired and potentially harmful pregnancies. Furthermore, the Supreme Court is a historically “masculine” institution that nowadays has only three women (Liptak, 2022a). This is a patriarchal and elitist “democratic” institution. Despite all of these problems, the biggest of all is that the Supreme Court lacks legitimacy. Throughout Trump’s mandate, there was more and more Presidential control over the Supreme Court because Trump was the one choosing which judges would be appointed to the judicial institution. Nowadays, the Supreme Court is composed of “politicians” instead of impartial judges, and that delegitimate the American justice service (Liptak, 2021).
Despite all of these problems, the biggest of all is that the Supreme Court lacks legitimacy.
On the other hand, the Biden Administration, which announces itself as a defender of the rights of all women over their bodies, has become incapable of doing what is necessary to stop the situation. In his first year as president, Biden seemed indifferent, and that has only changed after the intensification of the protests and the new dimension that the problem gained with SB8 (Lerer, 2021; Texas abortion: Biden vows ‘whole-of-government’ response to new law, 2021). As the US President, Biden could increase the number of judges in the Supreme Court and elect “democrat” judges that would guarantee women’s rights. However, if he does that, nothing would stop the next republican president to react and re-establish a conservative majority in the judicial institution. More recently, the Biden Administration has announced that, by the celebration of the 49th Anniversary of Roe’s decision, they would re-assure their compromise to the protection of women’s rights to their bodies (Vice President Kamala Harris, 2022). Remains to be seen if they pass from the saying to action and ensure that the inertia of the current administration does not bring any more negative consequences for both women and the American democratic society as a whole.
Henceforth, it is clearer than ever that the line that separates democracy from authoritarianism is extremely thin, and, considering that the US has already abandoned democratic values, everything indicates that “americanism” has come to stay.
Despite seeming a problem that only affects abortion rights and women’s freedoms, this situation can have implications for other fundamental rights (Glenza, 2021). At the American level, people’s rights need to be written in the Constitution, or they can be achieved through judicial cases in the Supreme Court. Exemplifying, the right to abortion was acquired due to the constitutional right to privacy (Roe v. Wade, 1973). However, if the abortion right is overturned, there would be no guarantee that other rights achieved in the same way would not be also overturned. Consequently, any right acquired through the Supreme Court and not written in the Constitution could be revoked, such as the right to gay marriage and the right to contraception (Abrams & Carlisle, 2021).
[...] if the abortion right is overturned, there would be no guarantee that other rights achieved in the same way would not be also overturned.
Summing up, American democracy is degraded and is going through its darkest phase, which has more and more consequences not only at the internal level, due to the division betwixt those who defend democracy and those who want to abolish it, but also at the international level because Western states are losing both the democratic foundation that was crucial for their reconstruction in the post-Second World War and the hegemonic leader in the fight for human rights. American liberalism has revealed itself as the best way towards fascism and antifeminism, and Luccock’s prevision seems, now more than ever, correct. Remains to be seen whether the international community and the unsatisfied American citizens will do anything against the current ‘americanism’.
Bibliographical References:
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About the author:
Daniel Ramos dos Santos, natural from Porto and student in the second year of the International Relations Degree at the University of Coimbra. Interested in politics and human rights. Voluntary member at Dezanove, portuguese website about the LGBTQI+ problematic.