The Journal of Unpopular Opinions (Ch. 3)

Shockwaves continue to move across the landscape after the not-unexpected Supreme Court decision that there is no constitutional right to abortion, so the states must decide individually what they'll allow. 

But all is not lost in this battle, and pro-choice politicians - primarily Democrats - have a variety of opportunities to make a difference, and, of course, to make a horrible mess of things.

I look to the Notorious RBG for motivation here, and what she teaches us about Roe: that it was the right decision, wrongly justified. She believed, and stated more than once, that Roe should have been decided as an equality issue, not a privacy issue, as Amy Frieder noted in a Salon article this past May.

She elaborated on this in her dissent in Gonzales v. Carhart:  "[L]egal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature." (Emphasis added.)

Because of that, Frieder continued, "Advocates must argue that the government has a legitimate interest in protecting already-existing human lives subjected to oppression that stems from state action based on impermissible sex stereotyping in an unequal society. To put that in plain language, abortion is necessary so long as sex inequality in society persists." 

And, she included in the article,

"When abortion-restrictive regulation is analyzed as state action compelling motherhood, it presents equal protection concerns that Roe's physiological reasoning obscures," according to constitutional law scholar Reva Siegel. Equal protection should preclude state coercion of motherhood. 

The Dems and their pro-choice allies should use the discriminatory and unequal arguments as their primary tactic to challenge state laws, or at least legislate corrections to them.

• Forcing motherhood on a pregnant woman is discriminatory and unequal, because fatherhood is not being forced on the man. 

• Forcing parenthood on a pregnant woman is discriminatory and unequal, because parenthood is not forced on any other women (or men). These laws unfairly favor 'pre-born' children over living children who are parentless in homes, shelters, and state-run institutions.

• Declaring that life begins at fertilization imposes a faith-based decision on all citizens, favors one set of beliefs over all others, and denies pregnant women the right to practice their religion, as guaranteed under the First Amendment. 

• Allowing rape or incest exceptions for the pregnancy being 'outside the woman's control' is discriminatory, as abortions aren't similarly available to women who get pregnant due to a contraceptive failure, equally outside her control. 

• Allowing rape or incest exceptions for any other reasons is purely arbitrary, creates a separate class of pregnancy, and is therefore discriminatory. There can be no exceptions based on how the pregnancy occurred.

• Allowing destruction of embryos created outside the womb, but not allowing destruction of embryos created inside the womb, creates a separate class of 'pre-born children' and is discriminatory. 

• Allowing dependent tax deductions and other financial advantages for living children but not for 'pre-born' children is discriminatory. 

• Companies providing a benefit for women to travel to receive medical care, but not providing that same benefit to all employees, is discriminatory. 

• Period- and location-tracking apps, and similar technologies, are private and cannot be used against any woman seeking a legal abortion. Laws must be put in place, before the abortion law goes into effect, making use of these technologies for this or any similar purpose a crime.

• Any state banning abortion must provide health insurance coverage for all pre-natal, maternity, and post-partum care. Regulations providing the benefits, and confirmation that they're available, must be in place the abortion law goes into effect. 

• Any state banning abortion must provide paid time off from work for all necessary care and treatment, including maternal/child bonding if the woman is keeping the child. If the woman is enrolled in any level of school, special provisions, including tutoring if needed, must be made available. 

• Any state banning abortion must provide housing, nutritional, transportation and/or other assistance to any pregnant woman requesting it; the state must prove the capability to provide this assistance for the anticipated population before the abortion ban can go into effect.

• Using Medicaid or other generally accepted 'access-to-care' metrics, any state that bans abortion must prove there is sufficient access for the projected population to receive appropriate care throughout the pregnancy, and after. If the access is not available, the state must develop, fund, and implement programs to provide it before the abortion ban can go into effect.

Believe me, I realize some of those might be distasteful, particularly the ones challenging widely-supported abortion exceptions and IVF; hence the tag of 'unpopular' opinions. But not fighting discrimination that we agree with is wrong. 

And that leads us to messaging, something at which the Dems are frequently inept. Here' are some of the things they should be saying, consistently, in all jurisdictions:

• Unequal treatment of men and women is against the law, and won't be tolerated.

• Discrimination is against the law, especially when we understand - and even support - the reason for it. We would not want you or anyone you love to face this type of discrimination.

• Religious freedom is constitutionally protected. One set of religious beliefs cannot be imposed on everyone. It's wrong, and it's against the law.

• We cannot allow non-medical, non-scientific decisions to dictate when life begins, to drive access to medical care, and to impose limitations on personal autonomy and economic freedom.

• The government cannot force citizens to take on significant personal or economic burden without providing adequate support for them.

• Whether we personally believe in a woman's right to choose, or would avail ourselves of that right is irrelevant. We cannot ignore the discriminatory aspects of these laws, and we must fight to have them repealed.

• Importantly, nothing in our position demands that abortion be available through the entirety of a woman's pregnancy. We support the right of states to have scientifically-based, medically-accepted definitions for fetal viability, fetal or maternal conditions of pregnancy that can endanger the life of the mother, and so on, and we support these definitions being incorporated into each state's laws.

None of this will be easy, but it's worth it, to prove that abortion rights are human rights, and constitutional rights; that abortion bans are unconstitutional; and that being pro-choice is being anti-discrimination.

Fight it with whatever goal you want, but fight it, together. Because we all win if even one of those arguments is successful.