Overturning Roe v. Wade
The day has come. For a long time, we feared it, then we knew to expect it, but when it finally came, it felt like a stab in the chest. I was sitting watching Chris Hayes as he covered developments related to the January 6th insurrection. When he came back from a routine commercial break, he had unexpected breaking news. The Supreme Court voted to overturn Roe v. Wade, as revealed by a leaked draft opinion authored by Justice Samuel Alito. Chief Justice Roberts has since confirmed the legitimacy of this document and based on the contents and tone of the opinion, there is no reason to believe the final opinion will be any different; the opinion states unequivocally that the right to an abortion afforded by Roe v. Wade was never constitutional in the first place. That it was inferred from the Constitution but does not exist since it is not explicitly mentioned. But many rights were not explicitly mentioned in the Constitution, including women’s right to vote. The Constitution does not mention women at all. Women only gained the right to vote through the ratification of The Nineteenth amendment. The Constitution is generally inexplicit with vague phrases, like “well regulated militia”, that many are happy to ignore when convenient. In the end, it is a matter of interpretation and Roe v. Wade does use a reasonable interpretation of the Constitution to extrapolate the right to choose—specifically, the right to privacy. They concluded that:
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 ... in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether to terminate her pregnancy.1
Furthermore, they reasonably balanced this decision with consideration of the different stages of pregnancy and the health of the mother:
In the first trimester of pregnancy, the state may not regulate the abortion decision; only the pregnant woman and her attending physician can make that decision. In the second trimester, the state may impose regulations on abortion that are reasonably related to maternal health. In the third trimester, once the fetus reaches the point of “viability,” a state may regulate abortions or prohibit them entirely, so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother.2
The decision makes no exception for rape, incest, or any other medical complications that may arise, such as miscarriages or ectopic pregnancies, which can be fatal to the mother. It is up to the states now, thirteen of which have trigger laws that will immediately outlaw abortion, and about half of which will outlaw abortion soon enough.3
The Justices
Let’s first make some observations about the justices that made this decision. There are nine Supreme Court justices, six of which lean conservative— Brett Kavanaugh, Amy Coney Barrett, Samuel Alito, Neil Gorsuch, Clarence Thomas, and Chief Justice John Roberts. Nowhere in the Constitution does it state how many justices should comprise the Supreme Court. In fact,
“The number of Justices on the Supreme Court changed six times before settling at the present total of nine in 1869”4
Three of these justices immediately stand out to me.
Brett Kavanaugh, credibly accused of rape by Dr. Christine Blasey Ford.
Amy Coney Barrett, who had never before tried a case, is anti-abortion, anti-same-sex marriage, and affiliated with a Christian religious group called People of Praise. This group adheres to a tradition that women be “headed” by their husbands, or if unmarried, the female equivalent, which is referred to as a “handmaiden.”
Clarence Thomas, who was credibly accused of sexual harassment by Anita Hill (who testified to this during his confirmation hearings much like Dr. Ford), and whose wife, Ginni Thomas, is a “Stop the Steal” conspiracy theorist. Though potentially suggestive of similar leanings in her husband, that is her right; however, she was directly involved in the events surrounding the January 6th insurrection, as her texts to White House Chief of Staff Mark Meadows have revealed.
Those three justices’ votes to overturn Roe v. Wade will remove a fundamental right from 171 million women5 in the United States, one that we have held since 1973. Furthermore, they lied in their confirmation hearings that they would respect the Roe precedent. Some examples:
Amy Coney Barrett:
“Senator, what I will commit is that I will obey all the rules of stare decisis,” Barrett replied, referring to the doctrine of courts giving weight to precedent when making their decisions.6
Brett Kavanaugh:
“As a judge, it is an important precedent of the Supreme Court. By ‘it,’ I mean Roe v. Wade and Planned Parenthood v. Casey. They have been reaffirmed many times. Casey is precedent on precedent, which itself is an important factor to remember,” Kavanaugh said.7
Here’s what bothers me, and “bothers” is a euphemism here. Two of those men tried to sexually force themselves on women. They showed no regard for the autonomy or well-being of the women they hurt. Rape is violence. Rape is agnostic to the will of the victim. Sexual harassment is violence. Sexual harassment is agnostic to the will of the victim. Two themes emerge from this behavior— violence against women and the nonexistence, or perhaps irrelevance, of the autonomy of women from their point of view. When two men, who clearly don’t believe women should control what happens to their bodies, make a decision about women’s bodily autonomy, they reveal themselves as wholly unserious. When two men that believe violence towards a woman is acceptable, but not towards fetal tissue that has not yet grown into a body or developed sentience, they betray their hypocrisy. The audacity they have to speak of immorality after treating women this way.
Meanwhile, Amy Coney Barrett is part of a secretive, but influential religious organization that sees men as superior, sex before marriage or with a member of the same sex as sinful, and abortion as immoral. Yet she speaks for me, an atheist. Given her deference to men, I see her as an instrument of their aims, and therefore I group her in the same category as the men above.
Somewhat ameliorating was the fiercely worded dissent by Justice Sotomayor last November in the case to prevent S.B. 8, the Texas abortion law that allows private citizens to sue providers for giving abortions, or anyone who assists the woman in any way for $10,000. The Supreme Court refused to stop S.B. 8 portending the end of Roe.
Sotomayor dissented from their refusal to halt the law, describing its effects as “catastrophic” and “ruinous.”
She went on,
This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies. I will not stand by silently as a state continues to nullify this constitutional guarantee. I dissent. 8
It seems we can expect a strong dissent from her in the final ruling on Roe. Though it will not change the outcome, it may be one for the history books.
What This Means for America
Folks, what these members are instituting for the rest of the country is a patriarchal Christian theocracy. What their presence on the court demonstrates is how unserious and unsecular the highest court of the land has become. The system has failed us at the highest level. The Founding Fathers believed the three branches of government would serve as “checks and balances”, but when the executive branch exerts bias and control over the judicial branch through court stacking, with a legislative branch that allows them to do so, when one of the two parties uses the law to suppress the vote and further entrench their power, cementing minority rule, when the President attempts to use all three branches of government to stage a coup, the system has most certainly failed us. This stress testing of our democracy has revealed how fragile it is. The leaking of the opinion on Roe v. Wade has received a lot of attention because of how rarely it happens. How it compromises the court. Decorum and rule-abiding in the United States government have been dwindling for a long time. One of the many reasons we are here is in 2016, Mitch McConnell denied President Obama the right to appoint a Supreme Court justice on the basis of it being an election year. He then fast-tracked Amy Coney Barrett to the court during an election in 2020. There is no law about appointing justices during an election year, but Mitch did it anyway, then violated his own precedent. When Biden gave his State of the Union speech this year, Republican representatives Marjorie Taylor Greene and Lauren Boehbert heckled the President while he talked about his dead son, Beau. So many of the Republican candidates running now are like this. Unserious and hateful individuals running on culture war issues like “wokeism”, a term whose definition remains elusive to me. Each candidate like this that filters into the halls of Congress degrades our institutions a little more.
What Do We Do Now?
I’m so glad you asked. Maybe we should start with what not to do. What not to do, in my humblest opinion, is to start playing the blame game, at least at an individual level. Not only is trying to blame one or more individuals unhelpful, but it is also a completely uncritical and unnuanced exercise in the way that I have seen it. Some people think this is all Ruth Bader Ginsburg’s fault. Some people think this is all Bernie Sanders’ fault. Hell, there are people who very seriously believe this is all Susan Sarandon’s fault, as Miles Klee so eloquently debunks here. But the problem is systemic. Ultimately, you have a Republican party that wants to institute and in many ways uphold an already white patriarchal Christian theocracy and a Democratic Party that is only slightly to their left, claiming to care about choice, while supporting anti-choice candidates like Henry Cuellar, who is under FBI investigation for corruption as well. Yes, an anti-choice “Democrat” has glowing endorsements from House Speaker Nancy Pelosi and House Majority Whip Jim Clyburn, while his female opponent Jessica Cisneros, who supports choice, immigration reform, and other progressive issues, is considered the enemy.
Due to the way popular culture has shifted over the years, people have either developed a kind of amnesia about Democratic favorites or were ignorant to their shortcomings all along. But it’s important to look at. President Joe Biden is personally against abortion. He had not even uttered the word until this week.9 Obama and the Clintons did not always support gay marriage, which is now at risk of being overturned as well. Both Obama and the Clintons were explicitly against civil marriage for LGBTQ+ folks. Bill Clinton signed The Defense of Marriage Act into law in 1996, which allowed states to not recognize same-sex married couples who got married in another state where it was legal.10 In 2004 Obama said,
“Marriage is between a man and a woman, but what I also believe is that we have an obligation to make sure that gays and lesbians have the rights of citizenship that afford them visitations to hospitals, that allow them to transfer property to each other, to make sure they’re not discriminated against on the job.”11
To be honest, I never once considered that I shouldn’t be allowed in a hospital. I was born in one after all. My point here is Democrats are not the valorous progressives some think they are and their meek opposition affirms this. The large number of liberals that think this is all Bernie Sanders’ fault for opposing Hillary Clinton in 2016 are missing the mark. Senator Bernie Sanders has been for women’s choice since before Roe v. Wade.
"It strikes me as incredible that politicians think that they have the right to tell a woman what she can or cannot do with her body," Sanders told the Bennington Banner on September 1, 1972. "This is especially true in Vermont where we have a legislature which is almost completely dominated by men."12
Senator Bernie Sanders has been for gay marriage since before I was born, holding Vermont’s first Pride march in 1983. He also voted against The Defense of Marriage Act. So as a queer woman, whose rights are at stake, I am not going to tolerate the blaming of a person who supported my existence and choice before I was born or champion those who didn’t afterwards.
The truth is there were multiple points of failure that lead up to this point. There’s the fact that Democrats are a center right party masquerading as left of center, with some even calling themselves “progressives.” There’s the fact that Mitch McConnell blocked Merrick Garland’s nomination and there was nothing anyone could do about it. One could argue Ruth Bader Ginsburg should have retired during Obama’s presidency. I’m agnostic about the “should have” there, but objectively speaking, if she had, we’d have one less conservative justice. Then, there’s the simple fact that Trump won the 2016 election.
Trump won for the same reason any fascist wins: a society in economic crisis. The cost of living in the United States has gone up exorbitantly while wages have stayed the same. The federal minimum wage is still $7.25 even though if wages had gone up with productivity it should be $24 or so. Americans, save the elite, can hardly afford housing or health care. Bernie Sanders shined a light on what many people were struggling with and instead of Democrats taking note and adjusting their platform and messaging, they maligned us and cast us out. Meanwhile, Trump was feigning working class solidarity, while also dog whistling to the unfortunate number of white supremacists in our country.
There were many overlapping factors in the 2016 election turning out as it did. But looking at the present moment, Democrats have no one to blame but themselves for their inaction. Women are going to die. They are going to go to prison. In some cases they are going to be executed. This is not an exaggeration. It’s a nightmare. We have the Presidency, the House, and the Senate. We can in fact codify Roe into law. We can in fact pass voting rights. We could have passed Build Back Better, which I wrote about with much excitement before Manchin killed the whole bill. “But Manchin and Sinema”, people say. Republicans would never engage in such appeasement. Any deviants in their party will be cast out and thrown to the wolves as they did to Liz Cheney. Democrats could do the same to the obstructionists in our party, but they won’t. Instead, after all this, they choose to endorse an anti-choice candidate and bend the knee to Joe Manchin and Kyrsten Sinema, who value the filibuster more than human life or the future of our democracy. It’s throwing salt in a gaping wound.
Yes, the obstructionists may continue to obstruct until their last breaths, but I expect us to fight them until ours.
https://en.wikipedia.org/wiki/Roe_v._Wade#cite_note-90
"Roe v. Wade." Oyez, www.oyez.org/cases/1971/70-18. Accessed 6 May. 2022.
https://time.com/6173196/abortion-trigger-laws-bans-roe-v-wade/
https://www.supremecourt.gov/about/institution.aspx
https://www.statista.com/statistics/737923/us-population-by-gender
https://apnews.com/article/abortion-us-supreme-court-amy-coney-barrett-judiciary-dianne-feinstein-da274b6e8a86aa5435a0be6ce0a287c5
https://apnews.com/article/abortion-us-supreme-court-amy-coney-barrett-judiciary-dianne-feinstein-da274b6e8a86aa5435a0be6ce0a287c5
https://slate.com/news-and-politics/2022/01/sotomayor-dissent-abortion-roe-wade.html
https://apnews.com/article/abortion-biden-us-supreme-court-health-religion-32fbfb858d7d3314427e5cdd88308b8b
https://www.vox.com/policy-and-politics/2015/10/30/9642602/clinton-doma-constitutional-amendment
https://time.com/3816952/obama-gay-lesbian-transgender-lgbt-rights/
https://www.newsweek.com/bernie-sanders-joe-biden-hyde-amendment-abortion-rights-1442412