A certain type of person had a predictable reaction to the news that the Supreme Court overturned Roe v. Wade:
Of course. It’s all about controlling women.
I will not write about the history of laws governing abortion and access to contraception. I just can’t go there now.
This is a history of rape laws.
Then I will get to what we do, now that Roe v. Wade has been overturned.
You see, laws reflect cultural biases, and for most of world history, laws were mostly about keeping women in their place.
For much of world history, rape was a property crime. An unmarried girl was her father’s property. A married woman was her husband’s property. If a virgin was raped, the property damage was to her father. If she was married, the damage was to her husband.
If she wasn’t a virgin and wasn’t married, there was no crime (because the property was already damaged). A man couldn’t rape his wife (his own property) and rape of enslaved women wasn’t a crime. Even after the Civil War, the rape of a black woman wasn’t recognized as a crime.
The law was intended to protect (white) men from false accusations; not to protect women from attack.
The social hierarchy in the United States prior to the twentieth century determined how rape was treated.
Black men were lynched if accused by a white woman.
A poor white woman who accused a more powerful man was not believed.
Attempted rape wasn’t a crime because there was no property damage—what Franklin Graham was getting at when he said there was no crime because Kavanaugh respected Dr. Ford enough not to go through with it:
Rape was seen as the natural result of “human” nature:
Men were aggressors, so a woman was responsible for guarding her chastity. If she was raped, it meant she failed to guard the goods.
Therefore, a woman’s behavior was taken into account: How was she dressed? Was she out alone?
As late as the 1970s, a defendant in a rape trial could present evidence that the woman had, in the past, engaged in sexual behavior.
The “sexual history” defense was based on 2 assumptions: First, if she was unchaste or immoral, her word couldn’t be trusted.
Second, if she wasn’t a virgin, there was no crime because the goods were already damaged. By the 1970s and 1980s—under pressure from women’s activists—states enacted what are called “Rape Shield Laws.”
These laws protected victims and prevented their sexual history from being used as a defense. Sexual assault (sexual touching without the act completed) is a relatively new crime. Sexual harassment wasn’t taken seriously until the 1980s. The assumption was that if a woman received advances, she wanted it.
The other assumption was that a woman’s word wasn’t enough evidence of a crime, even though a woman was often the only witness to the crime:
In the 19th century and earlier, women were not considered competent to testify in court. Graham’s idea that a woman’s word is merely an “accusation” instead of testimony admissible as evidence harkens back to that idea.
Brownmiller sent shockwaves in 1975 when, in Against Our Will, she argued that rape was not a natural result of human nature.
She established, through historical arguments, that rape was a means of exerting patriarchal power.
The Trump-GOP is (partly) a backlash against the Civil Rights & Women’s Rights movements and an attempt to roll back the clock to the time when powerful men didn’t have to worry about being accused by less powerful (or not well-connected) women.
You can see how this dovetails with overturning Roe v. Wade. States that are passing draconian laws forbidding abortion even in the case of rape can give a man complete control over a woman. He can rape and impregnate her, and force her to become dependent.
Roe v. Wade has been Overturned: What It Means
It means that the reactionary right-wing has succeeded in pushing us back about 50 years.
Roe v. Wade has been Overturned: What We Do Now?
The first thing we do is to organize and get out the vote.
Organizations are already in place to help women who need the help. Many will have to travel if they need abortions.
We need a solid majority in Congress after 2022. Here is what the Senate can do: First, they eliminate the filibuster.
Then, they reform the Supreme Court.
The Constitution does not specify the number of Supreme Court justices. The number can be changed by Congress.
We’ve had nine justices since the US was sparsely populated. As the country has grown, the number of justices has remained the same. As a result, each justice has disproportionate power. Consider this: We have three branches of government. Control of the Legislative Branch is divided 535 ways: 100 Senators and 435 members of the House. The President has enormous power over one branch of government–but for a limited time. The Judicial Branch is divided only 9 ways, but each Justice has a lifetime appointment.
This gives each Justice way too much power, which is why it’s such a big deal each time one is appointed.
It also means it can take decades to reverse bad decisions.
It will be important to add justices in a way that is objectively fair. For example, Congress can pass legislation allowing Biden to add a few seats to compensate for the fact that a Supreme Court seat and dozens of justiceships were stolen from Obama, and then add two seats every 4 years bringing the number up to, say 15.
This can only happen with clear Democratic majorities.
Also, don’t call it court-packing, which has bad associations from the time Franklin Delano Roosevelt tried it. (If you all want to know the story, I can do that in a separate post.)
Call it court reform.
They roll us backward. We have to rolling forward again.
Before the 2020 election, when Democrats thought they might pick up a larger Senate majority, there was a lot of talk about adding Supreme Court justices (and making Washington D.C. a state).
Now, people are not talking about it much so it doesn’t become a campaign issue that will motivate right-wing voters.
If the Supreme Court overturning Roe v. Wade doesn’t get voters to the polls in 2022, I don’t know what will.
