The Supreme Court Decision legalizing a woman’s right to terminate a pregnancy turned 40 years old this week. Protestors turned out at the court in support of the decision and also against. For opponents, the problem is the way Roe was decided. The problem for supporters is, in many ways, the same.

Roe vs. Wade was decided on privacy grounds. Eight years before, the Supreme Court heard arguments Griswold v. Connecticut, and ruled that a Connecticut law prohibiting the use of contraceptives violated the constitutionally protected “right to privacy.” In Roe, the court decided the abortion decision fell under that same rubrick.

The trouble is, privacy doesn’t get a mention in the Constitution. At the basis of the Justices’ verdict was the idea that there’s an implied commitment to civil liberties. The First Amendment protects free speech, the fourth protects one’s private belongings and there’s protection for religious choice, etc. In deciding Roe, the Court wrapped the right to make healthcare decisions into individual rights, but it did not, for example, rule on women’s status as equal citizens deserving of equal freedoms and protections say, even when they happen to get pregnant. And there’s the rub.

You’d think after the 2012 elections swept a record-breaking number of women into Congress; after eighteen congressional seats swopped from unreliable or anti- to pro-choice; after the GOP suffered and 18-point gender gap, the anti-choice Right would be cowed. Far from it. As soon as the new term started, failed presidential candidate Michele Bachmann introduced a bill to repeal the Affordable Healthcare Act (which required most employers to cover contraception in their insurance), and failed vice presidential candidate Rep. Paul Ryan co-sponsored the Sanctity of Human Life Act again, a bill that specifies that a “one-celled human embryo” should be granted “all the legal and constitutional attributes and privileges of personhood.”

Not choice. Not privacy. Not individual rights but “personhood.” Paul Ryan knows what the battle over control of reproduction is really about.

Conservatives aren’t cowed because their cause has historic resonance and roots that run deep. For a bit of history, colonial America was ok with abortion. In 1800 abortion wasn’t even mentioned in the laws of any jurisdiction. One hundred years later, it was a criminal offense in every state. As historian James Mohr has written, criminalization of abortion took off at the same time that criminalization of free Blacks took off, after the Civil War. More than thirty anti-abortion laws were passed in just the years from 1866 to 1877.

Think about it: while Southern plantation owners were passing so called “Black codes” and “anti-vagrancy” laws that made it virtually impossible for freed slaves to work for themselves or make a go of it as free people; so-called social reformers and newly established professional doctors’ associations were pushing anti-abortion laws. By way of justification they talked about fetal rights and morality and the glories of “Victorian motherhood.” What were women actually doing at the time? Thousands of women who’d been working in paid jobs in factories and offices while their men fought the Civil War were hankering to limit their childbearing and stay in paid work.

“The question isn’t are you for or against abortion. It’s do you believe that upon becoming pregnant we put women in a new category or underclass?” reproductive justice attorney Lynn Paltrow said this month, when her group, National Advocates for Pregnant Women released a study of just how criminalized pregnant women have become in the US.

NAPW’s identified 413 criminal and civil cases across 44 states involving the arrest, detention and equivalent denial of women’s basic rights between 1973 and 2005 and another 250 or so since. Women of all races, but especially low-income women and women of color are “significantly more likely to be arrested, reported by hospital staff, and subjected to felony charges” reports NAPW. In the majority of cases, the denial of fundamental rights to pregnant women was done in the name of protecting fetuses.

“Women are experiencing what amounts to regime of Jane Crow” says Paltrow. It’s a phrase that gives us a lot to think about.

In his Inauguration Address this week, Barack Obama made at least one important point. “Preserving our individual freedoms ultimately requires collective action,” he said. The comment reflects an idea about government that’s been debated throughout the history of the US.

Individual, personal, private rights: are they sufficient? Unions and mass movements exist because they’re not. In our time, millions of dollars have gone into reversing the notion that government has any responsibility to act assertively to protect the vulnerable or make this country a fairer place. The New Deal, the War on Poverty, the right to bargain collectively, integration, civil rights… It’s not just that the drive to criminalize abortion is embraced by the same party that has all but destroyed those things. The attack on women’s autonomy and the attack on workers are part of the same attack. Deciding Roe on the grounds of privacy was a dodge. The Congress has never legislated women’s equality. The sooner we change that the better. Forty years of privacy rights have brought some women some distance, but not enough women, far enough.