We Have Just Lost A Right For the First Time in US History
Or How Real Life Will Change When Roe Is Overturned
So I had started a post on the Met Gala - about how we all need a bit of fantasy and a bit of the ridiculous in our lives. I was preparing commentary on some of the outfits (costumes?) - some witty, some snarky, some actually admiring.
Then this happened.
A draft opinion of the Supreme Court of the United States was leaked this evening. It is the opinion supporters of women’s rights have all been dreading.
The opinion in Dobbs v. Jackson Women’s Health Organization, drafted by Associate Justice Samuel Alito, definitively overturns both Roe v. Wade and Planned Parenthood v. Casey.
This occurrence is extraordinary, both for the substance of the opinion and for the fact that it was leaked by the notoriously secretive Court.
The details of the opinion are not particularly surprising, given the rhetoric we have been hearing for so many years. Alito argues that there is no right in the Constitution that could possible be construed as giving a woman a right to choose whether or not to give birth, and that “Roe was egregiously wrong from the start.”
The opinion includes references to the particular hobby horses of other Justices. For example, it includes Justice Clarence Thomas’ assertion that abortion must be banned because Black babies are killed more often than White babies. It includes a shout-out to states’ rights supporters, appearing to toss decisions about abortion to the states.
Among the opinion’s more incomprehensible assertions is that there is no right to an abortion because the word “abortion” does not appear in the Constitution. That logic is concerning. The arguments in Roe were based on the arguments in Griswold v. Connecticut, which struck down a Connecticut law banning contraception, even for married couples. Justice William O. Douglas, in the majority opinion in Griswold, argued that, even though the word “contraception” does not appear in the Constitution either, the various guarantees in the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments create the right to privacy in marital relations. Roe extended that right to include that of all women to control their reproductive lives.
It is important to note that this is a draft opinion, and will likely be modified - to what degree is conjecture. But whatever the final opinion, it will activate trigger laws and other mechanisms in 26 states that will ban or severely limit access to abortion.
At the same time, conservatives in several states are working together on a national total ban on abortion. At this point, based on laws passed recently in several states, there is no reason to expect those behind this effort will allow exceptions for rape or incest. In some states, even the life of the mother is not an exception.
While Alito stated this opinion only applies to abortion, do not take him at his word. If the logic in Roe was based on Griswold, and the logic in Roe is deemed wrong, it is likely only a matter of time before the far right begins its assault on contraception. Protection of marriage equality is not safe, either - nor is any right based on privacy.
And get ready to fight.