A recent leak reveals the Court’s conservative majority may repeal the landmark decision, bringing an onslaught of legal complexities.
While the entertainment industry fascinated the world with the Met Gala’s “Gilded Glamour” theme on Monday night, gilded cages regarding women’s reproductive rights were being decided at the highest judicial level in the country. A leaked draft obtained by Politico revealed the U.S Supreme Court’s decision to overturn the monumental Roe vs. Wade landmark decision.
Roe vs. Wade protects the right to privacy of a woman’s decision on whether to carry out her pregnancy, and prioritizes her rights against the government’s interest in protecting “the potentiality of human life.” In the historic 1972 case, a Texas law violated this right. The Supreme Court voted to pass the measure in a 7-2 majority.
Within the definitions of legal abortion, contraceptives like Plan B pills or intrauterines (IUDs) are included; meaning, they can be outlawed if the Supreme Court overturns Roe vs. Wade. The threat could lead to a nationwide shortage before the alleged draft goes into law.
Conservative Justice, Samuel Alito, wrote the Court’s opinion. The 72-year-old critiqued a common point made by Roe vs. Wade proponents’ key argument–the U.S Constitution’s vague language. He argues that the right to an abortion does not fall within said category. Also, he asserts that the law was “egregiously wrong” from its inception, with “exceptionally weak” reasoning and divisive consequences. Ultimately, causing more harm than good.
Justice Alito opined, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision defenders of Roe and Casey now chiefly rely—the due process clause of the Fourteenth amendment…but any such right must be ‘deeply rooted in this nation’s history and tradition’ and complicit to the concept of ordered liberty.”
In response, many Democrats like Rep. Alexandria Ocasio-Cortez (D-NY) and President Joe Biden are calling for Congress to codify abortion rights should the SCOTUS really overturn the decision. Ocasio-Cortez tweeted, “As we’ve warned, SCOTUS isn’t just coming for abortion — they’re coming for the right to privacy Roe rests on which includes gay marriage + civil rights. [Senior West Virginia Senator Joseph] Manchin is blocking Congress codifying Roe. House has seemingly forgotten about Clarence Thomas. These 2 points must change.”
To Rep. Ocasio-Cortez’s points, Justice Alito cited other cases in which subjects did not fall under said protections—mentioning Lawrence v. Texas , which legalized sodomy; as well as, Obergefell v. Hodges, a lawsuit ending in the decision to favor the legal implementation of same-sex marriage.
Furthermore, the center-right leaning Democratic Sen. Joe Manchin (D-WV), supports the Senate filibuster, a strategy to prolong debate in order to delay or prevent a decision, regarding abortion on Tuesday. Sen. Manchin is the sole member of his party siding with Republicans on the idea. Notably, Sen. Manchin was also the only Democrat to vote against the Women’s Health Protection Act in March. In 2018, he stood as the only Democrat to vote for Justice Kavaugh’s confirmation. The Justice is a major anti-abortion proponent.
The drafted opinion on Roe vs. Wade comes after a string of mostly-Southern states placing some kind of limitation on abortions in the latter part of 2021 and earlier this year. Florida was the latest to impose a ban that prohibited abortions past 15 weeks of pregnancy this past March. Notably, the ban brought legal questions surrounding homicide and even child support.
As of late, legal questions surrounding the issue have come to pass in similar states. A Texas hospital reported 26-year-old resident Lizelle Herrera to the Starr County Sheriff’s Office for “intentionally and knowingly cause the death of an individual” by performing a self-induced abortion. She was suceedingly arrested and charged with murder, but later released. While the matter did not violate current applicable Texas law, it shows what can be expected if abortion become illegal.
Other dissenters cite women attaining alternative or dangerous routes to terminate their pregnancies as another, albeit expected, implication. Namely, botched or incomplete abortions.
A National Library of Medicine study purports an approximate 20 million terminations occur in unsafe conditions worldwide. The World Health Organization estimates nearly 70,000 women dying per year due to unsafe abortions. Sepsis is the primary cause of death.
Much like the late 19th and early 20th centuries, self inducing abortions could lead to ensuing, unnecessary fatalities via infections like sepsis or even legal punishment. However, if you had money, the laws did not apply. Higher society women of grander means, were able to obtain “legal aboritons,” while poor women and their families were disproportionately impacted.
Moreover, the consequences of abortion restriction also disproportionately affects poor minority women. Hence, stratifying abortion access and regulating women’s reproductive rights via social class. According to the Guttmacher Institute, the choices in pregnancy “could be demeaning and humiliating, and at worst, they could lead to injury and death.” The institute furthers by explaining that “less affluent women, who disproportionately were young and members of minority groups, had few options aside from a dangerous illegal procedure.”
All the more terrifying, these illegal procedures were common. For instance, in the 1950s and 1960s, deaths ranged anywhere from 200,000 to over 1 million annually.
Lastly, the coming decision carries the question of trigger laws. In strict red territories like Louisiana, there are currently unenforceable statutes already in place should Roe vs. Wade fall. In 2006, then-Louisiana governor Kathleen Blanco signed a trigger law called The Human Life Protection Act. In the legislation, the state takes a firm stance against abortion–wanting to do away with it altogether.
However, another stipulation must occur for the unenforceable law to become valid. For instance, Louisiana’s abortion prohibition can go into effect if “[a]ny decision of the United States Supreme Court which reverses, in whole or in part, Roe v. Wade,” among other things. Now, this possibility is likely to become a reality.
The American way?
Indeed, Justine Alito may have a point about abortion rights not being protected. Because it is not “deeply rooted in this nation’s history and tradition” as opponents say, these rights majorly affect women–a minority in the U.S. Historically and even today, America continues to be largely patriarchal. A central argument for generations surrounds women’s rights. Even more, abortions were mostly prohibited in many states in the mid-1800s. Plus, women could not vote until the 19th amendment was ratified in August 1920, 144 years after the country’s founding.
On the other hand, Justice Alito may be wrong. In December 1869, the Republican Wyoming Territorial Gov. John Campbell signed a law allowing women’s suffrage. Earlier that year, Dakota Territory came within one vote of passing a similar measure.
Moreover, since the nation’s inception and for various decades after, the Guttmacher Institute says abortions were generally permitted. That said, states began anti-abortion legislation reform in the 1960s, until the Supreme Court ultimately legalized the medical procedure nationwide with the Roe vs. Wade decision. Notably, legal abortions were already available in 17 states under a range of circumstances beyond those necessary to save a woman’s life by then.
Seemingly, abortion may be as American as apple pie.
A numbers game
In total, there are nine sitting justices on the bench, six conservatives–Chief Justice John G. Roberts, Jr., and Associate Justices Samuel A. Alito, Jr., Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh, and Clarence Thomas. As well, the remaining three–Associate Justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan–are liberals. Yet, there have been recent events that could shake up that number. The most glaring issue.
Four of the Justices are senior citizens with one approaching retirement age. The three youngest are newly added Republicans, While supreme court designations are lifetime appointments, mortality is an obvious concern. The almost 74-year-old Justice Clarence Thomas had a scare earlier this year. When hospitalized to treat an infection he experienced “flu-like symptoms.” Moreover, Justice Stephen Beyers is due to retire in summer 2022, with the freshly minted 51-year-old Justice Ketanji Brown Jackson replacing him on the bench then.
Unfortunately for liberals, the addition of Justice Jackson fails to balance the conservative majority. Even if President Biden reportedly packs or extends the court to include ten justices–an idea he previously expressed he was not a fan of in 2020–that would still leave a six to four split favoring conservative leanings. Shortly, the public will find out if privacy and women’s reproduction rights changes
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