American law is now hurtling towards apartheid for women

The outrage is everywhere. Hours after Politico dropped its scoop — a first draft of the Supreme Court’s plan to strike down its own precedents on a woman’s limited freedom to control her fertility — crowds of women formed around the country to protest their imminent loss of constitutional rights.

There is scant precedent for the highest court in the land snatching back rights from the entire class of people to whom they have been granted. In fact, the Supreme Court rarely overrules itself at all, reversing precedent in barely 0.5% of cases.

The reason for this is well articulated by the majority that upheld Roe in Casey v. Planned Parenthood, the other Supreme Court precedent that the draft throws under the bus:

Roe… could not be repudiated without serious inequity to people who, for two decades of economic and social developments, have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion.

Note to everyone. It’s not “people” whose lives have been organised around the freedom from compulsory pregnancy and motherhood. It’s women.

In fact, the sooner we wrap our collective heads around the noxious singling out of one group of Americans — women — for the second-class citizenship that results when access to safe abortion is denied, the sooner we’ll recognise the upcoming Supreme Court’s decision for what it really is: a roadmap for gender apartheid.

We don’t have to guess about this. We’ve been there before. Taking our lives in our hands with knitting needles and coat hangers. Shoving Valium down our throats to cope with the children we didn’t want. The domestic servitude and violence we couldn’t escape because of our financial dependence.

None of this was an artefact of the 1950s. Instead, the domestic arrangements of the 1950s were the inevitable consequence of our reproductive slavery and the financial servitude that flowed from it. Who would hire us if we couldn’t even make a commitment to remaining unpregnant or child-free long enough to show up?

No one. Certainly not for anything that mattered or paid well, which forced us to rely on men. And as domestic abuse experts will tell you, social and financial inequality makes such reliance far more dangerous than is the case in equal relationships.

It won’t be any better this time around. My guess is it will be worse. The Supreme Court has never done this before — withdrawn rights from a defined subgroup of the population on the grounds that granting them was an egregious mistake.

The stigma will be tangible, especially as it will expose the long-standing and deep-seated reluctance of many in the country to give women equal rights. That’s why the Equal Rights Amendment (ERA) — which would have rendered this whole drama moot — was never ratified, allowing the late Justice Scalia to correctly say that the constitution does not prohibit discrimination on the basis of sex. “Nobody,” he noted (by which he meant men) “ever thought that that’s what it meant. Nobody ever voted for that.”

Which is why whether the eventual judgment mirrors this draft precisely, as some believe was the leaker’s intent, or quibbles about a few points, this is a hair-on-fire moment for American women because the writing is on the wall. Roe will be overturned, humiliating American women and having negative knock-on effects on the status of women around the world.

The lives we have built for ourselves, and want for our daughters and granddaughters, is in peril. Filibuster carve-outs to pass national legislation legalising abortion; the long overdue passage of the ERA; a national sex strike by women in the spirit of Lysistrata. It should all be tried. Try everything. Because there’s one thing we know at this dark moment, when the sky will only grow darker.

We cannot let them win.