Editor’s Note: Nicole Hemmer is an associate research scholar at Columbia University with the Obama Presidency Oral History Project and the author of “Messengers of the Right: Conservative Media and the Transformation of American Politics” and the forthcoming “Partisans: The Conservative Revolutionaries Who Remade American Politics in the 1990s.” She cohosts the history podcasts “Past Present” and “This Day in Esoteric Political History.” The views expressed in this commentary are her own. View more opinion on CNN.
When the Supreme Court handed down its decision in Dobbs v. Jackson Women’s Health last month, it unleashed a swarm of new abortion bans, as right-wing state legislators raced to strip women of access to abortion services. But the decision also triggered a spate of companion measures – efforts to restrict travel, advertising, medication and even speech – intended to prevent workarounds for people seeking reproductive health care no longer available in their home states.
This illiberal regime – one that limits freedom of movement and speech and requires greater surveillance and policing – is a key component of anti-abortionists’ vision of an abortion-free society. And while activists within the movement may rely on the language of freedom and rights, they have made clear within just a few weeks of the Dobbs decision that the society they are working to construct is not compatible with liberal democracy.
Historically, that should come as no surprise. Efforts to limit rights and control the basic functions of citizenship are nearly impossible to contain within state borders. Even before people in different states were connected through telecommunications technology, the country was knit together by interstate commerce, travel and mail.
The free flow of people and communication meant that illiberalism at the state level almost inevitably led to illiberalism at the federal level, from requiring free states to enforce slave-state legislation in the 1850s to the push for laws regulating the flow of information about contraception in the 1870s.
The illiberalism of the Dobbs decision should be apparent enough from the laws depriving women of their basic right to reproductive autonomy. But like previous illiberal regimes in the US, the restrictions will not be limited to the primary targets of these restrictions.
Within the past few weeks, states have proposed, passed or implemented a wide range of restrictions that go far beyond the doctor’s office: banning mail-order medication, criminalizing the act of sharing information about abortion, barring librarians from using the word “abortion” in conversation with patrons.
As those examples suggest, the process of banning abortion affects far more than doctors and people who are pregnant. Not only does it place new restrictions on speech, travel, and mail, but in some states, fellow citizens have been informally deputized, offered bounties or granted whistleblower protections for helping to enforce abortion bans.
Nor is it only public employees and private citizens who are being drafted into these anti-abortion regimes. Corporations, too, are now navigating the new terrain, at times capitulating to new state laws.
As Laura Weiss at The New Republic reported, the drugstore giant CVS has implemented a policy in “high-risk states” requiring pharmacists to quiz “women of child-bearing potential” who have been prescribed drugs that could end pregnancy, to ensure they do not intend to induce an abortion. If they do not prove to the pharmacist’s satisfaction that the medication has been prescribed for other purposes, their prescription can be denied. Meanwhile Google has pledged to erase location data for users who visit abortion clinics, requiring the tech company to more closely monitor the sensitive location data that it collects from users.
None of this was unexpected. In fact, the history of reproductive restrictions suggests that such a whole-of-society approach was necessary for the state to enact control over Americans’ reproductive lives. In the 19th century, as states passed greater restrictions on contraception and abortion, legislators began expanding their reach far beyond the regulation of condoms, diaphragms, and abortion.
The Comstock laws, federal legislation instituted in the 1870s and expanded throughout the first half of the 20th century, not only outlawed contraception but literature that contained information on preventing pregnancy. Such laws led to raids on bookstores and interference with mail services. Rights to privacy and free expression were deemed second-order rights, behind the right of the government to control Americans’ reproductive choices and information.
For well over a century, then, Americans have understood that limiting reproductive choice requires limiting other core freedoms as well.
It’s worth mentioning another historical antecedent, one that has been invoked repeatedly in 2022 as abortion restrictions have escalated: the Fugitive Slave Act. Passed in 1850, the law ensured that slavery would not be a regional issue but one that would be enforced across the United States. Nor was the Fugitive Slave Act the only evidence that slavery could not be contained to states that allowed enslavement.
By the mid-1830s, Congress had become so overrun by petitions calling for the abolition of slavery that it created a gag rule: any petition on the topic would be automatically tabled. As abolitionists and anti-slavery activists at the time recognized, the gag rule demonstrated that slavery impinged on every American’s freedom by eliminating the Constitutional guarantee that citizens had a right to petition the government for redress of grievances.
Anti-abortionists have argued that Dobbs does nothing more than return the issue of abortion to the states. But as the laws proposed in the first few weeks after the decision show, reproductive rights will not be a regional issue, limited to the red and purple states where Republican legislators strip their residents of reproductive rights.
Laws against abortion will implicate the whole country in their illiberalism, eroding not just reproductive rights, but the entire project of liberal democracy.
