Kathryn Kolbert and Julie F. Kay's Controlling Women: What We Must Do Now to Save Reproductive Freedom was published in 2021 by Hachette.
To Take Back Abortion Rights, Ditch the Courts
Are We Ready to Fight?
If You Want Real Actions to “Save Reproductive Freedom,” You Won’t Find Them Here
Saying Goodbye to Roe and So Much Else
Julie F. Kay and Kathryn Kolbert
Short Takes: Provocations on Public Feminism, an open-access feature of Signs: Journal of Women in Culture and Society, offers brief comments from prominent feminists about a book that has shaped popular conversations about feminist issues. Short Takes is part of the Feminist Public Intellectuals Project.
To Take Back Abortion Rights, Ditch the Courts
Martha F. Davis
In July 2021, the State of Mississippi filed their opening Supreme Court brief in Dobbs v. Jackson Women’s Health Organization, the case challenging Mississippi’s law banning abortions prior to viability, after fifteen weeks of pregnancy.
With a boldness that is usually reserved for low-stakes amicus briefs rather than the parties’ own briefings, the state argued that both Roe v. Wade and Planned Parenthood v. Casey are “egregiously wrong” and should be overruled on the way to upholding the Mississippi law.
Given the current composition of the Court, we already know that there will be some takers. Possibly the state will even gain the magic five votes needed for its position to prevail, though such disregard for prudential constraints like stare decisis would expose the Court as just another political branch.
But whether the Court takes up the gauntlet now or proceeds through a series of incremental moves stretching over several terms, there’s little doubt what’s coming. And in Controlling Women: What We Must Do Now to Save Reproductive Freedom, authors Kathryn (“Kitty”) Kolbert and Julie Kay say out loud what many have been feeling for a long time: the courts are no place to secure abortion rights.“Whether the Court takes up the gauntlet now or proceeds through a series of incremental moves stretching over several terms, there’s little doubt what’s coming.”Click To Tweet
While the message is not so surprising, the messengers are. Kolbert was the litigator who argued Casey before the Supreme Court and cofounded the Center for Reproductive Rights (CRR), a leading legal organization working on these issues. For her part, Kay served as a staff attorney at CRR before moving on to a diverse career promoting gender equality that included challenging Ireland’s abortion restrictions before the European Court of Human Rights. Kolbert and Kay are two accomplished reproductive rights lawyers who actually prevailed in the courts. Yet now they argue that the courts are a dead end for protecting these rights.
Great lawyers that they are, they make a compelling case. Sure, surveys show that a majority of the public support access to abortion, but after recent appointments to the Supreme Court, most justices seem disposed to strip abortion of its status as a constitutional right and send the issue back to the states. Some state courts have recognized abortion as an equality issue under their own state constitutions, and some state legislatures have taken steps to assure availability of abortion should the Supreme Court reverse Roe and Casey. But many have not, and such a patchwork approach would undermine individual autonomy while surely leaving many without access to reproductive choices.
Instead of hoping that the justices will change their stripes, a rare occurrence, Kolbert and Kay argue for new framings and new tactics outside of the courts. As they note, a vigorous social movement with political clout will, incidentally, have an impact on the courts as well; the campaign for marriage equality is a case in point. Kolbert and Kay also urge a reframing of abortion as a human rights issue, connecting it more directly to intersectional issues of race and equality that have broader public resonance.
The role of litigation in social movements has always been fraught, as courtroom maneuvers tend to suck the energy out of other social change initiatives. Though lawyers are playing an important role in Dobbs and similar cases pending around the country, their efforts should not be mistaken for movement building. Reproductive freedom – federally or in the states -- will be saved by individual and collective actions outside of the courts, if at all.
Martha F. Davis is University Distinguished Professor at Northeastern University School of Law and an erstwhile women’s rights litigator.
Are We Ready to Fight?
Historically, pandemics have forced humans to break with the past and imagine their world anew. This one is no different. It is a portal, a gateway between one world and the next. We can choose to walk through it, dragging the carcasses of our prejudice and hatred, our avarice, our data banks and dead ideas, our dead rivers and smoky skies behind us. Or we can walk through lightly, with little luggage, ready to imagine another world. And ready to fight for it.
—Arundhati Roy, “The Pandemic Is a Portal”
While the time we are currently living in has been marked by hardship and isolation, we are finding new ways of solving problems, delivering health care, and supporting families and communities. In fact, we’ve already started to see all around us innovative and powerful adaptations and realizations in our world—evictions and federal student loan payments have been halted, streets and parking spaces have been taken over by cafes, medical abortion is being provided by telehealth, mail, and online. In addition, vast numbers of people have gone to the streets to challenge police brutality and many organizations have begun to examine power and privilege, proclaiming that Black Lives Matter and that we are not going back. Local governments are beginning to consider what it would look like to invest in communities’ well-being rather than policing. We have finally begun to lay bare issues of inequality, racism, and injustice that have long existed in our society. Kathryn Kolbert and Julie F. Kay’s Controlling Women, then, arrives at an appropriate moment, when there may be greater openness to new strategies and recognize the need for a broad-based, mass movement to protect and build toward reproductive freedom.
We will not have true reproductive freedom until everyone is able to live safely—free from all forms of violence and oppression. We know that going back to a “normal” that has failed, exploited, and neglected so many communities is not an option.“We will not have true #reproductivefreedom until everyone is able to live safely—free from all forms of violence and oppression. We know that going back to a ‘normal’ that has failed, exploited, and neglected so many communities is not an option.” Click To Tweet
But, will people speak out, take to the streets, cast a vote to fight against reproductive injustice? Can we push through the stigma associated with sex, sexuality, and abortion in our society to come together to create meaningful change? Especially after the Supreme Court’s recent refusal to stay Texas’s ban on abortions after six weeks of pregnancy, is there interest in dismantling the medical, economic, legislative, and judicial systems that created the situation we find ourselves in right now?
I honestly don’t know.
But perhaps we are approaching a tipping point, like the one brought on by the pandemic, that will force us to figure out how to forge new paths to ensure reproductive justice. This is something akin to the “multidimensional campaign”—a visionary movement the looks far beyond the courts—that Kolbert and Kay advocate. Many are already taking bold steps to ensure reproductive freedom by working outside and around our current legal and medical structures.
The time has come. In order to achieve reproductive freedom we must, as Arundhati Roy writes, “get ready to fight for it” right now and in any way we can.
Lisa Maldonado is one of the founders of the Reproductive Health Access Project and has served as the organization’s Executive Director since 2005. She has devoted her career to working on reproductive health issues, especially as they affect women, adolescents and immigrants. Lisa has worked with large family planning programs in Latin America and Africa and, for over ten years, worked with local New York City primary care clinics providing health care to Latino women and adolescents. She is on the board of the Association of Reproductive Health Professionals and is active within the American Public Health Association–having served as cochair of the Association’s Abortion Task Force, President of its Latino Caucus and as a Governing Councilor for the Population, Sexual and Reproductive Health section. Lisa presents frequently at major reproductive health and public health conferences and has been published in scholarly journals. Lisa holds a masters in economics from the University of Michigan and a masters in public health from Columbia University.
If You Want Real Actions to “Save Reproductive Freedom,” You Won’t Find Them Here
We are at a turning point in the battle for reproductive autonomy in the US, with legal abortion on the verge of extinction in half of the states in the country, potentially as soon as June of 2022. There has never been a more urgent time to contemplate and prepare for the steps we are willing to take politically, legally, and personally to ensure that abortion is safe and accessible, regardless of what the nine judges on the Supreme Court may rule.
That is why it was such an utter disappointment to discover that despite its title, Kathryn Kolbert and Julie F. Kay’s Controlling Women: What We Must Do Now to Save Reproductive Freedom in fact has very little to say about what to actually do now. Instead, it primarily offers an extensive and somewhat navel-gazey look at a series of previous court cases that laid the groundwork for the abortion access crisis we have today.
To be fair, there is definitely some benefit to learning about behind-the-scenes maneuvering in some of the most impactful cases of the last three decades. For instance, as an abortion rights activist in the South, I was interested to hear that a number of national figures debated whether the risk of marginalized communities immediately losing legal abortion would be worth a potential White House win in 1992. After deciding “yes,” they pursued Planned Parenthood v. Casey. This was an eye-opening reminder of how often those of us who live in conservative states have our needs minimalized in favor of the “greater good.” But as the writers themselves note, abortion rights will never be secured in the courts until they are first firmly established as basic human rights. While a history lesson is always welcome, this one could easily have been summarized in just a chapter or two, rather than with almost two hundred pages of base-laying memoir.“There has never been a more urgent time to contemplate & prepare for the steps we are willing to take politically, legally, & personally to ensure that abortion is safe & accessible.”Click To Tweet
And that is the problem with Controlling Women in a nutshell: as an activist book, it completely misses its mark. “What we must do now” was summarized in a brief forty pages of directives, such as remembering the importance of always voting in every election or paying attention to local politics as well as the national stage. It offered ethereal suggestions—that we must work to remove bad abortion restrictions that are currently law and fight to pass new bills that will expand and protect these rights as well. These are obviously all well-meaning goals, but what are the concrete and actionable tasks people can do in their homes and in their organizing to make effective and visible change? Those instructions were basically nonexistent.
Controlling Women reads like a memoir, and given the very laudable history of its authors, it could have successfully been just that on its own. The reproductive rights movement is sadly lacking when it comes to publications that depict our own successes, especially accounts of the legal and historical figures who accomplished those feats. But instead it appears as if the authors – or their publisher – feared that the book would appeal to too narrow an audience and decided to frame the work as an activist guide to create a broader appeal. Unfortunately, by promising a road map to future successes and then tacking on a lackluster handful of pages in an effort to fulfill that promise, it failed to meet my expectations. Without providing truly concrete action items that are accessible for people regardless of their financial, educational, or geographic level or abilities, Controlling Women will leave those who may turn to it for activist strategy sadly lost and disappointed.
Robin Marty is the author of The New Handbook for a Post-Roe America: The Complete Guide to Abortion Legality, Access, and Practical Support and The End of Roe v. Wade: Inside the Right’s Plan to Destroy Legal Abortion. She is a former reporter and the operations director of West Alabama Women’s Center, the state’s largest abortion provider. She is also volunteer communications director for The Yellowhammer Fund, an abortion fund and reproductive justice organization assisting the Deep South region of Alabama, Mississippi, and the Florida Panhandle.
Saying Goodbye to Roe and So Much Else
Rosalind P. Petchesky
In this time of multiple assaults on our planet, our social movements, our voting rights, and our lives, we might regard the fight to save legal abortion as a second-order issue or, alternatively, as a harbinger of how racist-fascist patriarchy is evolving before our eyes. I choose the latter view. As I sat down to finish writing this review, we were being blindsided by events in Texas (and Louisiana, and New York/New Jersey, and Afghanistan, and …, and …). In an unprecedented series of maneuvers, Texas lawmakers passed, and the US Supreme Court let stand, a law known as SB8 that will make all abortions illegal in Texas after six weeks of gestation, before many pregnant women even know they are pregnant. This is another egregious example of how the right wing marshals pseudoscience to stir emotions, misleadingly calling SB8 a “fetal heartbeat” bill when, in fact, at this very early stage of pregnancy, there is no fetus, only an embryo that still lacks a developed heart. Even more alarming, SB8 will put enforcement into the hands of everyday citizens, leaving state authorities immune from legal challenge and thus unaccountable. It means that neighbors, relatives, antiabortion fanatics, spies, and self-appointed vigilantes become deputized to bring lawsuits against anyone, other than the pregnant woman herself, they suspect of abetting an abortion—doctors, clinic workers, Uber drivers, sisters, counselors. For an assured bounty of $10,000 plus legal costs if they win, how many will hesitate?
Of course, this regime of deputizing private citizens into antiabortion bounty hunters and spies is ghoulishly reminiscent of all fascist and totalitarian power structures, whether slavery or Nazism or McCarthyite anticommunism or prisons. For advocates like Kathryn Kolbert and Julie F. Kay—practicing women’s rights attorneys with long and distinguished records of fighting for “reproductive freedom” through the courts (in the US and Europe)—this new scenario poses serious problems. How will lawsuits regarding rights over our bodies and pregnancies, based on the constitutional presumptions of Roe v. Wade and Planned Parenthood v. Casey, proceed when public authorities can claim sovereign immunity? And when the US Supreme Court, with its 6-3 conservative majority, chooses to turn its back on its own constitutional precedents and increasingly evade its responsibility even to judge cases, hear oral arguments or sign opinions through the dodgy maneuver known as the “shadow docket”? Thus, in the Texas case as in other areas of controversial policy (immigration, stopping evictions, voting rights, COVID-19 protections), what Jamelle Bouie has appropriately called “a raw exercise of judicial power … in the dead of the night” can wipe out the rights of millions. So much for the rule of law.
What sorts of solutions do Kolbert and Kay offer us in this new and quite scary scenario? Other recent books also foresee the end of Roe v. Wade and give useful analyses of the way forward post-Roe for reproductive justice activists (see, e.g., David S. Cohen and Carole Joffe’s Obstacle Course and Johanna Schoen’s Abortion after Roe). Kolbert and Kay bring their particular insights as litigators and their knowledge of not only the courts and abortion’s judicial history but also how the Congressional and legislative arenas affect abortion and reproductive politics. Based on first-hand experience with the cases, their chapters on Planned Parenthood v. Casey, the Hyde Amendment (restricting Medicaid funding), and the struggle for legal abortion in Ireland will be especially helpful to other legal advocates trying to evaluate what strategies have worked and what haven’t. At the same time, I felt this bias toward legal approaches (bringing lawsuits, reforming existing laws, a wildly improbable Gender Equity Amendment to the Constitution) blinded these authors to larger and possibly more transformative approaches, and particularly those that learn from the insights of women of color and attempt to build broad, multisectoral, grassroots coalitions.The concept of #reproductivefreedom is intrinsically about individual rights, unlike the more far-reaching framework of #reproductivejustice that women-of-color feminists have been promoting ... for over two decades.Click To Tweet
The problem of framing is evident in the book’s throwback title. “Controlling Women” reminded me of the pamphlet that CARASA (Committee for Abortion Rights and Sterilization Abuse) put out way back in 1978 called “Women Under Attack,” which attempted to put abortion rights in the context of a much broader set of gender, sexual, health, and economic conditions. The concept of “reproductive freedom” is intrinsically about individual rights, unlike the more far-reaching framework of “reproductive justice” that women-of-color feminists have been promoting through organizations such as SisterSong Women of Color Reproductive Justice Collective for over two decades—a concept and language that Kolbert and Kay almost entirely ignore, as they do with earlier activist groups such as CARASA. (For more, see Loretta Ross and Rickie Solinger’s Reproductive Justice, the coedited collection Radical Reproductive Justice, and Dána-Ain Davis’s Reproductive Injustice.)
To their credit, Kolbert and Kay do eventually arrive in their later chapters at a perspective that tries to put “reproductive freedom” in the context of a much bigger set of issues: “universal access to affordable, accessible health care,” fully addressing racism, affordable childcare, workplace benefits, sex education, sexual abuse and violence, infertility treatments, etc. But one has to ask, how in the world do we achieve these goals, including having medical abortion drugs available over the Internet or eventually over the counter (vital but, as Cohen and Joffe show, no panacea) without challenging the power of health insurance and drug companies—indeed, of capitalism? How do even the most progressive liberal reforms, such as the Women’s Health Protection Act (introduced into the House and the Senate in June 2021) become remotely possible without a robust grassroots movement led by women of color (like the voting rights movement) to fight for them and ensure their ongoing enforcement? And, in the immediate crisis, how do we help women in Texas and other states threatened with fascistic abortion vigilantes except through a massive network of support for those attempting self-managed abortion, underground drug and abortion providers, travel assistance to “haven” sites, and courageous direct action? Finally, the internationalism Kolbert and Kay allude to in recommending that the US ratify CEDAW (a goal transnational feminists in this country have espoused since the 1990s) is way too little too late. We need to renounce forever any illusions of US and white feminist exceptionalism; learn from the brave feminist movements in Argentina, Poland, and Mexico; and know that laws, no matter how democratic, can never replace popular struggle for radical change.
My profound thanks to Carole Joffe for her very helpful advice and expertise.
Rosalind P. Petchesky is Distinguished Professor Emerita of Political Science at Hunter College and the Graduate Center, City University of New York; a recipient of a MacArthur (“genius”) Fellowship; and an activist and author affiliated with Jewish Voice for Peace–New York City. Her early book on abortion (1990) was cited by supreme courts in both the US and Canada, and her published writings on abortion, reproductive and sexual rights, and geopolitics have appeared in many languages and countries.
Julie F. Kay and Kathryn Kolbert
We wrote Controlling Women to urge those of us who care about reproductive freedom to stop “banging our heads against the Supreme Courts’ marble walls.” Instead we seek to present new solutions within a human rights framework that recognizes abortion as one essential element of key decisions around when and whether and with whom to start a family. We are particularly pleased that our reviewers join us in the chorus calling for strategies to make long-lasting change on this issue because, as Martha F. Davis notes, “the Courts are no place to secure abortion rights.”
As Rosalind P. Petchesky rightly observes, restricting abortion is central to sustaining the “racist-fascist patriarchy,” and indeed it is central to controlling women. We share Lisa Maldonado’s optimism that “perhaps we are approaching a tipping point, like the one brought on by the pandemic, that will force us to figure out how to forge new paths to ensure reproductive justice.”
As we were writing this book, Justice Amy Coney Barrett was confirmed in a midnight ceremony, the Supreme Court said it would hear Mississippi’s ban on abortion after 15 weeks and, thankfully, the Trump presidency ended and the Biden one began. Then, less than two months after Controlling Women hit the shelves, the Supreme Court allowed the egregious Texas ban on abortion to take effect, signaling a grave threat to the abortion rights that Roe v. Wade and Planned Parenthood v. Casey guarantee.
Robin Marty finds “some benefit to learning about behind-the-scenes maneuvering in some of the most impactful cases of the last three decades.” We see a lot. Americans have been hoodwinked by court decisions that purport to preserve abortion rights yet permit restrictions that make abortion unavailable to the most marginalized women: teens, women in rural areas, and disproportionately to women of color, who face inequitable access to health care. Knowledge is power.
One of the most urgent goals, as Davis notes, is to promote the “reframing of abortion as a human rights issue, connecting it more directly to intersectional issues of race and equality that have broader public resonance.” Because our work has been informed by and in partnership with reproductive justice allies for decades, it is disappointing that Petchesky believes that this is “a concept and language that Kolbert and Kay almost entirely ignore.” Perhaps we erred in being overly cautious not to abduct that work as our own or to isolate it in one chapter; but make no mistake, reproductive justice framing is an essential part of the fabric of the book, woven together with international human rights doctrine and occupying a core position in our discussion of goals and strategies for the next stage.
Regarding what to do now to save reproductive freedom, Marty asserts that we were not detailed enough to give activists a roadmap for making change as she does in her own The New Handbook for a Post-Roe America. Petchesky was concerned that we did not address a revolutionary approach and also decries as improbable our long-term plan to amend the Constitution with a Gender Equity Amendment. Both critiques are valid, but “that’s why Baskin Robbins makes 31 flavors.”
Here our goal was to speak not just to committed activists but to energize large swaths of Americans who value abortion rights but have not previously engaged deeply. Controlling Women hopes to inspire, encourage, and push people to, as Maldonado says, “speak out, take to the streets, cast a vote to fight against reproductive injustice,” and more.Our goal was to speak not just to committed activists but to energize large swaths of Americans who value abortion rights but have not previously engaged deeply.Click To Tweet
There is plenty of work to go around and no one-size-fits-all approach. Some readers may seek to provide medication abortion over the web, and we discuss how Aid Access does that; others may take the route of lobbying the Food and Drug Administration to remove the unnecessary medication abortion restrictions we describe; still others may join the National Network of Abortion Funds and help the women in Texas and other states where abortion is banned find necessary care or work toward electing state legislators who will be champions for us. A “Get Active!” section of our ControllingWomenTheBook.com website provides evergreen information and links to local and national organizations.
Developing good strategies requires assessing conditions in each state and community, a deep knowledge of the strengths of one’s coalition, and leadership that is willing to push the envelope. Ultimately we do share Petchesky’s love of more radical change and agree that a major political realignment will be necessary to overcome centuries of misogyny and racism. We see successful steps in this direction taken by the Freedom to Marry and Black Lives Matter campaigns detailed in the book, and we embrace the human rights approach adopted in Ireland and seen in the streets of Argentina and Poland, as we also discuss.
Whatever strategies are adopted, we emphasize that they must “build bridges to other social justice movements including … those working for LGBTQ+ equality, racial and economic justice, rights and access for people with disabilities, voting, and immigration reform.” As Dolores Huerta put it in the lead-in to chapter 14: “Every moment is an organizing opportunity, every person a potential activist, every minute a chance to change the world.”
Many thanks to Martha Davis, Lisa Maldonado, Robin Marty, and Rosalind Petchesky, for their willingness to read Controlling Women: What We Must Do Now to Save Reproductive Freedom, their insightful comments, and most of all for their decades of work to protect and expand these fundamental human rights.
Julie F. Kay began her legal career at the Center for Reproductive Rights and then helped lay the groundwork for the legalization of abortion in Ireland by challenging the country’s ban before the European Court of Human Rights in ABC v. Ireland. She now develops innovative legal and policy reforms to advance gender equality, promote religious freedom, and protect the parenting rights of people leaving ultrareligious communities.
Kathryn Kolbert has had a long and distinguished career advancing women’s rights. In 1992, she made her second appearance before the US Supreme Court, arguing Planned Parenthood v. Casey, which has been widely credited with saving Roe v. Wade. A cofounder of the Center for Reproductive Rights and the Athena Film Festival, she also created NPR’s Justice Talking and the Athena Center for Leadership Studies at Barnard College.