What if Roe was just an opening salvo in the war against women’s autonomy? We often think of Roe’s fall as the culmination of decades of conservative lobbying, but what if it was just the first step? Look no further than the private-jet-setting justice Clarence Thomas, who wrote in his 2022 concurring opinion to Dobbs v. Jackson Women’s Health Organization: “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” After dismissing nearly a half century of precedent in Dobbs, and eliminating an existing constitutional right, Thomas opened the door to targeting the right to use contraception, which was decided in Griswold v. Connecticut in 1965.
The line in Thomas’s opinion that haunts me (and should haunt you too) is: “We have a duty to ‘correct the error’ established in those precedents.” Correcting the error would mean ending the rights to same-sex marriage (Obergefell), private sexual conduct between people of the same sex (Lawrence), and birth control. “Correcting the error” could be the perfect maxim for men’s rights activists, who’ve been galvanized by the end of Roe and seized another target to reverse the gains made by women: no-fault divorce.
Right-wing YouTube star Steven Crowder released a segment in June 2022, on the heels of the Dobbs ruling, in which he mused that “no-fault divorce…means that in many of these states, if a woman cheats on you, she leaves, she takes half. So it’s not no-fault, it’s the fault of the man.” Crowder added, “There need to be changes to marital laws, and I’m not even talking about same-sex marriage. Talking about divorce laws, talking about alimony laws, talking about child support laws.” (Earlier that month, Tim Pool, another host popular on the right, posted a video titled “No-Fault Divorce Has DESTROYED Men’s Confidence In Marriage, Men Don’t Want To Get Married Anymore.”)
Crowder’s own marriage has made headlines lately, after a three-minute video of him emotionally abusing his then pregnant wife was posted. Crowder later addressed his divorce. “No, this was not my choice,” Crowder said. “My then wife decided that she didn’t want to be married anymore—and in the state of Texas, that is completely permitted.” In every state, no-fault divorces are the law of the land, giving women the same rights as men. Of course, if Republicans wanted women to have the same rights as men, they wouldn’t have crushed the Equal Rights Amendment with such zeal.
The irony of no-fault divorces is that the first state law was enacted in California, in 1969, by then governor Ronald Reagan. No-fault divorces were a sea change for women, and they were tied to decreases in domestic abuse and female suicide. As economists Betsey Stevenson and Justin Wolfers found: “States that passed unilateral divorce laws saw total female suicide decline by around 20% in the long run.” The reason for the declines was twofold, Rolling Stone’s Tessa Stuart noted last week, quoting Stevenson; it was “not just because abused women (and men) could more easily divorce their abusers, but also because potential abusers knew that they were more likely to be left.”
It’s hard to know if these men’s rights activists are responding to the party platforms in states like Texas and Louisiana—or if they’re the ones influencing Republican legislatures. An initial draft of a measure by Louisiana Republican Nicholas James read, “Louisiana marriage laws have destroyed the institute of marriage over the past thirty to fifty years. The destruction of marriage has resulted in widespread child poverty in Louisiana.” (The notion of Republicans, who let the expanded child tax credit expire, pretending they care about child poverty is pretty rich.) As The Week noted last year, the Texas GOP’s 2022 platform called on the legislature to “rescind unilateral no-fault divorce laws and support covenant marriage.”
Texas is a laboratory of misogynistic legislation. It’s the state where Roe was effectively dismissed with SB 8, a law banning nearly all abortions almost a year before the Dobbs decision was passed down. Texas is also the state where Trump-appointed US district judge Matthew Kacsmaryk halted the FDA approval of mifepristone despite its being approved since 2000. (Meanwhile, doctors in Texas are grappling with the horrors of a post-Roe world and waiting to see their real toll; as one told The New Yorker, “Sepsis will likely be one of the leading causes of maternal death in our state, or at least the biggest delta [change] in morbidity.”)
It’s notable that Kacsmaryk also once took aim at no-fault divorce in the National Catholic Register, writing that Reagan’s signing of the Family Law Act of 1969 caused the “first pillar” to fall when it came to marriage law. According to Kacsmaryk, who was then deputy general counsel for the First Liberty Institute, the other two “pillars” fell when states “eliminated legal penalties for fornication and adultery” and when the Supreme Court affirmed the rights to abortion and contraception.
Roe’s fall demonstrated how seemingly inalienable rights are far more fragile. Republicans have since enacted bans or further restrictions on abortion at the state level, with some wanting to go even further by calling for a federal ban. Marjorie Dannenfelser, the head of Susan B. Anthony Pro-Life America, a major antiabortion group seeking a federal ban, met Monday with Donald Trump, the front-runner for the 2024 Republican nomination. The meeting, she said, was “terrific.”
So how far will Republicans go to control women or marginalized groups? Should people be entitled to privacy in their own bedrooms? Should they be allowed to marry whomever they want? Are women autonomous people in charge of their own reproduction? According to Justice Thomas, granting these rights was an error that needs to be corrected. Republicans corrected one right with Dobbs, and now they are going to address other elements of women’s autonomy.
You may read this piece and say I’m hysterical—just like when I wrote, in 2021, of Texas’s SB 8 law and said that “while Roe hasn’t been officially overturned yet, there’s proof that it’s already been functionally overturned in Texas.” And I warned, “Democrats need to be the grown-ups in the room, codifying voting rights and installing Supreme Court term limits before it’s too late. Democrats could be democracy’s last best hope. Our republic calls desperately for the fortification it needs, but will they answer the call?”
It’s been a year and a half, and I’m still asking.