Symposium | Trump Vs. Democracy

Rolling Back Reproductive Rights

By Michele Goodwin

Tagged DemocracyDonald TrumpReproductive RightsWomen

Beyond any doubt, women’s reproductive health care is in serious jeopardy domestically and abroad due to Trump-era platforms and policies. President Trump has stacked the courts with judges who show hostility to reproductive rights, including Supreme Court Justices Neil Gorsuch and Brett Kavanaugh. Agencies, under his leadership, have rolled back Obama-era protections for women and LGBTQ communities. Donald Trump has expanded religious exemptions that allow federal contractors to discriminate against women and LGBTQ families. He’s pandered to transphobic stereotypes, barring transgender individuals from serving in the military, claiming that they pose a risk to military safety.

President Trump’s assault on women’s constitutional rights and democratic norms extends from domestic platforms to international policies. Internationally, he reinstated the global gag rule and halted family planning funds abroad. Some of these policies are dog whistles that indirectly contribute to women being criminally targeted for miscarriages and incarcerated for having abortions. Through so many actions, including executive orders, pushing agencies to undermine constitutional rights, and refusing to enforce protections for women, Trump has undermined democratic norms and violated the Constitution.

Even before clinching the 2016 presidential election, the writing was on the wall. Candidate Trump urged the criminalization of abortion and the prosecution of women who obtain them, signaling an assault on a foundational constitutional protection for women. He successfully courted extremists who claim that their radical ideologies about women’s rights and racism are rooted in religious beliefs.

Reproductive rights advocates feared a Trump Administration would pose a serious threat to the preservation of reproductive health-care rights such as abortion and contraceptive health-care access. They were also concerned that a Trump presidency would undermine access to basic reproductive health-care access for the poor, such as testing for HIV, sexually transmitted diseases, breast and cervical cancer screenings, and other services provided by clinics that perform abortions.

They were right to be concerned. However, more was at stake than abortion. The threat to women’s rights and reproductive health was and continues to be an attack on our democracy, Constitution, and governing norms. Framing reproductive rights as isolated to abortion or only in the context of Roe v. Wade fails to take into account that legal principles related to bodily autonomy date back to the abolition of slavery and the rejection of eugenics. They are critical to American democracy and democratic participation.

The United States has a troubling past related to both slavery and eugenics—practices that were ensconced in and furthered by law and then later rejected. Slavery lasted for centuries in the United States, and eugenics resulted in a horrid twentieth-century practice whereby more than 60,000 people were sterilized against their will. Both were dark periods in our constitutional democracy. Indeed, Nazis celebrated American success with eugenics and borrowed from it in writing their own racist laws. Later, in defense of the Nazi regime at the Nuremberg trials, Third Reich doctors pointed to the United States as the model from which they learned.

In 1927, when the U.S. Supreme Court upheld a Virginia eugenics law, Justice Oliver Wendell Holmes claimed that “three generations of imbeciles are enough.” He asserted, “[t]he principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” He cruelly wrote, “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.” The law became an immediate target against people considered undesirable: poor whites, and then women of color.

Not long thereafter, the Nazis adopted—almost verbatim—the law upheld by the U.S. Supreme Court. Today, no one would debate that the Nazi regime was a threat to global—not just their national—democracy, constitutional values, and world order.

Lessons can still be drawn from this legacy.

By 1942, the U.S. Supreme Court revisited bodily autonomy and reproductive rights in Skinner v. Oklahoma—years before Roe v. Wade. In one of the most important cases of the twentieth century, the Court overturned an Oklahoma statute that mandated forced sterilization of “habitual criminals,” targeting petty thieves, but not white-collar criminals. This case involved a chicken thief who was charged twice with larceny. However, by this time, the United States had entered WWII and directly witnessed the atrocities carried out by Nazi Germany, including its eugenics program.

The Supreme Court found the law to be “fatal,” a form of “unmistakable discrimination” that was a fundamental constitutional threat, with “far-reaching and devastating effects.” The court called the law “reckless” and stated that it targeted specific groups for unconstitutional treatments. The Court emphasized that there was no redeemable value in the law.

In mid-September, reports emerged that women in immigration detention have been subjected to mass hysterectomies—a surgical operation that removes part or all of the uterus. It denies women the privacy, liberty, and autonomy to reproduce. It’s unclear why these procedures were done and whether the women gave informed consent for the procedures or if they were coercively performed—whereby the women hoped compliance would improve their chances for asylum.

In 1942, Justice William O. Douglas said forced sterilization forever deprives a person of “a basic liberty . . . in violation of the constitutional guaranty of just and equal laws.”

The Trump presidency is marked by a profound disregard for just and equal laws, constitutional rights, and democratic norms across many areas of our democracy—voting rights, criminal justice, environmental protection, and more. However, the attacks on women and children are marked by a particularly disturbing level of invidiousness. Decades before Roe v. Wade, Justice Douglas described the attacks on reproductive autonomy, including forced sterilizations like those reported at a private immigration detention center as “evil” and “reckless.” He was right.

From the Symposium

Trump Vs. Democracy

No President in our history has presented such a threat to the Constitution and our democracy as this one. In this special issue, we asked 35 contributors to describe different aspects of the assault. We could have asked twice that number.

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Read more about DemocracyDonald TrumpReproductive RightsWomen

Michele Goodwin is a Chancellor’s Professor at the University of California, Irvine and author of Policing The Womb: Invisible Women and the Criminalization of Motherhood.

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