The unimaginable happened this week. Somebody leaked a draft of a Supreme Court opinion. That in and of itself is a story. The integrity of the Court is pretty much over and done with. But it wasn’t just any opinion. It was the Mississippi case that took on Roe v. Wade.
People had been watching this case carefully. All of the most recent justices had been grilled on Roe and had said in their hearings that they acknowledged that it was established law and they were not looking to overturn law that was set and had been tested and affirmed and re-affirmed multiple times since then. But here they are, signing on to an opinion that unequivocally does exactly what they said they wouldn’t do. In short, they lied. Just like many of us knew they were doing at the time. They lied about their goals concerning Roe v. Wade.
Now, if you’re a regular listener, you know that my thoughts on abortion are complicated, to say the least. This is not one of those issues that I see as black and white, and I take an impassioned stance on the way I do many other positions.
But I support Roe. I support Roe because Roe isn’t just about abortion. Roe is about so much more than that. The implications of Roe are much farther reaching than just abortion. And I am absolutely convinced that abortion itself is not about saving lives, but it is about controlling women. I am not the first to say, nor will I be the last, if pro-life activists were about saving lives, then their activism would be geared toward funding social services, health care, childcare, parental leave, and ending the death penalty. But that’s not what pro-life activists concern themselves with. They concern themselves with what women do with their bodies. Not the life of the child. The child is an afterthought.
But the thing about Roe is, few people understand it. Most people know it’s the abortion case, but people don’t understand the reasoning. And the reasoning is important, because that explains the implications of overturning it. So let’s look at Roe for a minute.
Justice Blackmun explains in Roe, that “The principal thrust of appellant’s attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal ‘liberty’ embodied in the Fourteenth Amendment’s Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras.” So how does the Court justify that claim?
What many might find surprising is that Roe is not actually a case about the right to have an abortion, but at its heart is about the right to privacy.
“The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford,… the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia,…; in the Fourth and Fifth Amendments…in the penumbras of the Bill of Rights, Griswold v. Connecticut… in the Ninth Amendment… or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment….These decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ Palko v. Connecticut…, are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia…; procreation, Skinner v. Oklahoma…; contraception, Eisenstadt v. Baird…; family relationships, Prince v. Massachusetts…; and childrearing and education, Pierce v. Society of Sisters…Meyer v. Nebraska, supra.
This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
If that seemed hard to follow, the long and short of it is that the right to privacy isn’t explicitly stated in the Constitution, but we have interpreted the Constitution in such a way that the right to privacy is implied by a number of its amendments. And a woman’s decision to terminate her pregnancy is a private matter. It is covered by her right to privacy. The government has no business being a part of that decision.
It’s REALLY important to understand the reasoning of Roe. Because you have to understand if you overturn Roe, you’re not overturning just the right to have an abortion, you’re overturning a privacy case. And that’s a big deal.
So what does Alito have to say about Roe? How can he justify overturning a decision that has been tested time and time again?
Alito argues that there is no reference to abortion in the Constitution, and “no such right is implicitly protected by any constitutional provision, including the one on which the defender of Roe and Casey now chiefly rely – the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such rights must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”
He argues that “the underlying theory on which this argument rests – that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for “liberty” – has long been controversial.” The Due Process Clause, he argues, protects two categories of substantive rights. First, there are those guaranteed by the first eight amendments which applied only to the federal government, but this Court has held that the Due Process Clause of the Fourteen Amendment “incorporates” the “great majority of those rights and thus makes them equally applicable to the States.” The second category, which is in question here, “comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution.”
In order to decide whether a right falls into either category, the Court has long asked whether the right is “deeply rooted in [our] history and tradition” and “whether it is essential to our Nation’s ‘scheme of ordered liberty.’”
But what is “liberty?”
Alito says, “In interpreting what is meant by the Fourteenth Amendment’s reference to ‘liberty,’ we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been ‘reluctant’ to recognize right that are not mentioned in the Constitution.” Defining this has sometimes led the Court to usurp power. “On occasion, when the Court has ignored the ‘appropriate limits’ imposed by ‘respect for the teachings of history’…it has fallen into the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v New York….The Court must not fall pretty to such an unprincipled approach. Instead, guided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term ‘liberty.’ When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion.”
Now, let’s consider some of this argument:
First, he says abortion is not a right because it is not mentioned anywhere in the Constitution.
Newsflash: There are a LOT of things that aren’t mentioned in the Constitution that we think of as rights. Privacy, marriage, the right to travel, the right to VOTE. These are called “unenumerated rights.” And without them we are royally screwed.
The next part of his argument is that IF you are going to support a right that isn’t mentioned it has to be “deeply rooted in our nation’s history and tradition.” So, what, we don’t have any rights that didn’t exist before 1840? This is a great way of saying “if you didn’t already have rights then you don’t get rights.” So, no rights for women, Black people and People of Color, the LGBTQ+ community, and the disabled. Because our nation’s history and tradition is that white, land-owning men have rights. And Alito seems to be explicitly arguing for a return to that.
And if it is an overstep of the Court to expand the notion of liberty outside of the history and tradition of the nation, then that puts into question all of the progress of the last 100 years. Because none of that is steeped in our nation’s history.
So the implications of this decision are really serious.
It doesn’t end with Roe.
Obergefell and Lawrence v. Texas are on the line. If those cases don’t ring a bell, let me remind you – they established that gay marriage was legal and that gay people had the right to make decisions about their intimate lives and relationships because of the right to privacy. Without a right to privacy and if we don’t believe in liberty that is firmly rooted in history, then the rights of the LGBTQ+ community is at serious risk.
Griswold v. Connecticut is on the table. Griswold established that people, at least married people, have a right to contraception because of a right to privacy in marriage. If Roe dismisses the right to privacy, and there is not an expectation of privacy between a woman and her doctor or a woman and her partner, how can there be real right to birth control? And if women don’t have access to birth control, how can women fully and equally partake in the world around them? We’re talking about reverting to the world of the 1950s.
There are some who are even afraid Loving v. Virginia is on the line. Loving made interracial marriage legal. But that is hardly rooted in our nation’s history and tradition. Perhaps more importantly, Loving established that marriage itself is a fundamental right.
And you know what kills me? I mean really KILLS me? The response from so many people is “get out and VOTE!” And that’s super important. We have to vote. We have to do what we can at the ballot box to respond to this. It’s essential to get the right kind of people in office at this crucial moment.
But let’s be honest – all of the Justices who signed on to this opinion were put into office by Presidents who lost the popular vote. We can vote all day long and the Electoral College will work to make sure an anti-Roe candidate is elected.
And Congress is even worse. Representation is completely skewed. Rural, conservative, Red voters are wildly over-represented and Blue voters are incredibly underrepresented. New York and Wyoming have the same number of Senators. That gives Wyoming a disproportionate amount of Senatorial power. The American system is set up to represent land, not people, so fewer people on lots of space get representation, while many people in heavily populated but smaller spaces get less representation. So the power tends to centralize in Republican hands, even though voters tend to cluster in Democratic areas. So we can vote all day long. But the system is designed to discount our votes.
So what are we supposed to do???
I honestly don’t know.
But it is time to take these things seriously.
I you believe in equal rights, this matters to you. If you support women, People of Color and Black people, this matters to you. If you support the Queer community, this absolutely matters to you.
So you MUST vote in the mid-terms, even if it seems frustratingly moot. Because it is essential that we get people in office who believe in equal and civil rights. And you have to speak out about this issue. Make sure people understand that this isn’t just about abortion. Make sure people know the implication of this decision. People MUST understand how far this goes.
Call your representatives if they are not 100% solid on these issues. Let them know where you stand. Even if they ARE on the right side, let them know you support them.
Donate to organizations that support causes on the side of equality and civil rights. These things are going to be under attack in the coming years. Support the people who fight for them. It’s a hard time financially for everyone, so every little bit helps.
I’m feeling pretty passionate about this for a number of reasons. First and foremost, there are LGBTQ+ members of my family. I worry about them and their future. I worry about how they will be treated by society and by the state, and what kind of life they will have in a world that seems to be increasingly hostile to them in some places and more and more accepting in others. It’s like we are moving toward a new form of segregation – there are places where queer people are allowed to live freely and places where they aren’t. And I worry about my family and what happens to them in a world where there are places they aren’t allowed to live freely.
Secondly, I have been reminded recently that women’s health isn’t just important to me in the abstract – it’s vital. I have been struggling with some health problems recently, and have even been referred to a neurosurgeon in the last week. That may not sound like it is particularly a women’s health issue, but I assure you, it is. You see, with my issues with my brain it is absolutely imperative that I NOT get pregnant. Childbirth could be completely debilitating for me. Birth control of some kind is an imperative. My body could not handle the stress of pregnancy and childbirth. I have to have options. It’s a matter of life and death.
And I’m a middle-aged, middle-class, married white woman with one child and have a 100% supportive partner. Yet these issues are vital to me. How much more important are they to single women? To low-income women? To women who already have multiple children or live in volatile homes?
This opinion could have ripple effects throughout all of American society. And none of them will be good. So it’s time to do everything we can to fight against the reasoning behind getting rid of Roe. It’s not just women who are depending on it. Though even if it were, that would be enough.
Music in this episode is “Fearless First” by Kevin MacLeod at https://incompetech.filmmusic.io/song/3742-fearless-first.