﻿SAVE ROE. SAVE ROE. SAVE ROE has been the rallying cry of the reproductive freedom movement for almost fifty years. Roe has been under relentless attack since the day it was born. It has been weakened but never toppled. But with three new Trump-branded Justices on the Supreme Court, we have entered a new, fervently anti-abortion era. The Supreme Court, the majority of the federal courts, and many state courts are no longer Roe’s friends. It is time for a new strategy.
Anyone who has embarked on strategic planning for companies or organizations—think endless meetings with Post-its and flip charts taped to walls— has been asked to set “big hairy audacious goals.” What in your wildest dreams would be the win you want? What does success look like? However clichéd this concept has become, it is time for the reproductive freedom movement to identify new, bolder ambitions that do not depend so heavily on the courts.
Here we pose questions to consider as you determine the path you and your allies will take, and we lay out some long-term moon shots to advance reproductive freedom. One of our favorites, which we detail below, is a new Gender Equity Amendment to the US Constitution. We are dreamers, but pragmatists too. Therefore, the following chapters contain more immediately achievable strategies as well, to make a wide range of reproductive needs—from abortion to contraception to maternal and infant health care and child care—more affordable and accessible.
Our movement’s future direction cannot be invented out of whole cloth. It must be informed by our history and build on the decades of hard-fought victories and excruciating losses. We are indebted to those who have been in the trenches fighting for reproductive freedom with vision and persistence. The activists, medical providers, lawyers, and academics who have been working on these issues for decades are some of the most accomplished and dedicated people out there. Similarly, the organizations working for a wide range of reproductive freedoms have done incredible work to safeguard our rights and introduce positive legislation in the face of relentless opposition. Thankfully, many of these groups are already working toward bolder, more inclusive models for expanding reproductive freedom and justice. The next wave of this movement gains from being far more inclusive than in the past and by continuing to follow and learn from each other.
Before we settle on new goals and strategies, we must ask whether they reflect the values of our movement. Does the strategy build toward elimination of systemic racism that limits bodily autonomy and the right to raise a child in a safe and sustainable community? Will the changes we push for include transgender and non-binary people and everyone else under the LGBTQ+ umbrella? Is the commitment to being inclusive reflected in the leadership of the coalition? Are the people most affected by the problem involved in designing solutions? Will the strategies not only help advance everyone’s right to control when, whether, and with whom they have children, but to realize those choices as well? Are we being asked to make compromises that will exclude or harm the most marginalized or vulnerable? If our goals reflect these core values, then achieving them will be a celebration of our commitment to human rights and dignity.
Models of other successful social justice activism inspire us and contain lessons relevant to winning reproductive freedom. The decades-long campaign for marriage equality reinforces the importance of dreaming big. Attorney Evan Wolfson set out his pioneering vision in a law school paper he wrote in the early 1980s, more than ten years after the Supreme Court had already refused to consider the issue. By the mid-1990s, the HIV/AIDS epidemic had forced some LGBTQ+ people out of the closet but also fueled the development of a vibrant community that engaged in politics and demanded more rights and engaged more allies, with creative direct action and street protests driving the movement for justice. There was resistance from some activists who saw marriage as a fool’s errand—or worse, a hetero-patriarchal trap. Because goals like enacting state anti-discrimination statutes or repealing laws that criminalized sex between LGBTQ+ people seemed almost in reach, there was significant resistance to chasing legal “I dos.”
When in 1993 Hawaii’s Supreme Court preliminarily ruled that prohibitions on same-sex marriage might violate the state constitution, LGBTQ+ activists were elated. Unfortunately, the backlash was swift. Hawaii passed a constitutional amendment banning same-sex marriage before anyone had a chance to walk down the aisle. At the federal level, President Clinton signed the Defense of Marriage Act: if same-sex couples won the right to marry in any state, the federal government would not have to honor those marriages.
But Wolfson and his allies envisioned the bigger-picture gains that marriage could bring and so created a road map to get there. They launched a nationwide campaign that would pursue marriage equality in as many states as possible before ultimately seeking rights at the federal level. A decade of legislative and referenda battles, community organizing, Pride marches, and more were bricks in the path that finally in 2015 led to the Supreme Court’s decision legalizing same-sex marriage nationwide in Obergefell v. Hodges. As President Obama, himself a late convert to supporting marriage equality, noted on the day that the Supreme Court legalized it, “sometimes there are days like this, when that slow, steady effort is rewarded with justice that arrives like a thunderbolt.” Indeed. But don’t mistake that thunderbolt for anything other than a result of hard work by countless activists who created the necessary barometric pressure.
Coalition is queen. As you look at the new goals, ask whether they can inspire a broader coalition of allies. Movement building across identities and issues is the lodestar. First, can we engage our allied activists who are working for gender equity—those toiling to end gender-based violence, gain equal pay and better work-life balance, increase the minimum wage, and elect more women to political office? And crucially, can the strategy build bridges to other social justice movements, including but not limited to those working for LGBTQ+ equality, racial and economic justice, rights and access for people with disabilities, voting rights, and immigration reform? Ask not what your coalition partners can do for you but what we can do for each other’s movements.
The recent efforts of Black Lives Matter (BLM) are a prime example of how a protest movement can build coalitions across a wide range of activists. What began in 2013 in response to the acquittal of George Zimmerman for fatally shooting an unarmed Trayvon Martin grew with the protests in Ferguson and St. Louis, Missouri, in 2014 into a robust and historic movement. Seeded as an online platform and organizing tool, the BLM hashtag created by three Black female organizers—Alicia Garza, Patrisse Cullors, and Opal Tometi—by 2020 had grown into a member-led network of more than forty chapters with millions of supporters across the globe, spurred to take action in the wake of the deaths of George Floyd, Breonna Taylor, and others at the hands of the police.
Black Lives Matter has accelerated the call for tangible policy reforms including oversight and accountability in policing, the end of mass incarceration and stop-and-frisk policies, and the reallocation of resources or defunding of police. Importantly, BLM and its allies have been able to unite people of different races, genders, and ages to protest injustice nationwide. Together these groups highlight and condemn systemic racism, made even more stark by the disproportionate and violent reaction of the police in major cities and the disparate health outcomes during the COVID-19 pandemic. The movement has made consistent demands at the local, state, and federal levels and before international human rights bodies, and it has spurred activists to organize politically and run for office.
As both the Freedom to Marry and BLM campaigns teach us, advancing goals in a wide range of settings improves your chance of success and enables you to tailor initiatives to local needs and options. Look for ways to make change via legislative reform, executive action, and litigation at the federal, state, and local level. Whatever forum provides the best chance of winning is where you want to be. Don’t overlook the private sector, such as corporations and the media, as a resource if not a genuine ally, or otherwise as a target of your activism. Remember that game of whack-a-mole that the Center played as it fought against the onslaught of abortion restrictions? It’s time for us to be the moles popping up all over the yard.
When we were at the Center, our colleagues at the Guttmacher Institute were outraged that their health insurance company refused to include birth control in their employee health policy. We realized that the Center’s policy excluded contraception as well. In response, we launched a campaign to ensure that all FDA-approved contraception would be included in public and private health insurance plans. We mapped out a combination of strategies: litigation, legislative reform, administrative action at the state and federal level, and corporate advocacy.
Launched in the mid-1990s, the strategy engaged partner organizations and activists nationwide, winning hard-fought incremental gains and changing the conversation around insurance coverage for contraception. It led women in particular to question why the medication they relied on daily was being excluded from the guest list. Finally, nearly fifteen years later, when Obamacare was being designed, reproductive health activists had a seat at the table and demanded that contraception be included—without copays—under Medicaid and in all insurance sold in federal and state insurance marketplaces.
When the ACA later came under attack by the Trump administration, activists in the states responded with legislative strategies they had spent years sowing. Protection for contraceptive and abortion care was shored up in Oregon in 2017 by the state’s Reproductive Health Equity Act, which mandated access to affordable reproductive health and preventative care in any state-regulated plan and expanded coverage to the undocumented immigrants shut out of the ACA.
A multidimensional campaign provides more avenues for victory and along the way creates broader engagement. It allows activists to move forward in their own way toward a common goal and not get too distracted by the opposition’s plans or resources. If you’ve seen that photo of Olympic medalist Michael Phelps butterflying past his archrival, Chad le Clos of South Africa, you know the importance of staying in your lane, eyes forward on the goal. The image of le Clos losing valuable time by glancing over to check Phelps’s progress floats over the slogan “Winners focus on winning; losers focus on winners.”
Can the reproductive freedom movement coalesce around one or more audacious goals that will meet many of these criteria? Absolutely. Our dream list includes goals that advance reproductive freedom directly but also those that create the proverbial rising tide to lift all boats. At the top of our wish list is what we have dubbed the Gender Equity Amendment, a supercharged constitutional addition that could provide heightened and enduring protection for reproductive freedom.
A NEW WAY, A NEW CONSTITUTION
It’s no surprise that as lawyers we look to legal strategies and constitutional reform as a central part of our long-term plans for social change. The US Constitution is the backbone that shapes the fundamentals of our country’s legal rights and political system. Overall, constitutions are more permanent than legislation or policy directives, and they provide mechanisms to hold our government accountable, enforce our human rights, and solidify our values with a government stamp of approval.
While protections against gender discrimination have increased dramatically in recent generations, there remains a long way to go. Our current Constitution is insufficient to take us there. Drafted by our so-called founding fathers, the Constitution reflects their times and their biases. As such, the US Constitution has never been a place that reproductive freedom can call home. Instead, reproductive rights have found shelter just outside, in the penumbra of rights that the Supreme Court first recognized to protect privacy or in a notion of substantive due process.