If you had asked me five years ago if abortion rights would eventually become unconstitutional, I would have answered with a strong “No”. I attended the Woman’s March on Washington six years ago and although the overall premises of the march was to advocate for policies ensuring women’s rights remained, the thought of women losing access to abortion still seemed unimaginable. Yet, six years later here we are.
When I first heard the SCOTUS had overturned Roe vs Wade, I felt a sense of hopelessness. This later turned into sadness and then anger. “How dare someone else feel they have the right to tell ME or any other woman what she must do with HER body” “Who do these WHITE men think they are.” As I sat on my bed processing my emotions I wondered if my grandmother, and the many women before her, felt similar emotions living during a pre-Roe era. A feeling of being seen, but not heard. A feeling of knowing you do not have autonomy over your body. Deciding whether or not to risk your life and birth a child was not your choice, but the choice of others and this feels me with much sadness, but above all disappointment.
“…but any such right must be ‘deeply rooted in this Nation’s history and tradition’…”
The justices reason that the defenders of Roe and Casey have relied on the Due Process Cause of the 14th Amendment, which declares states must respect the legal rights owe to a person1,2.
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws2.
Though this provision has been used to assure some rights that are not in the constitution, the justices reason those rights have been rooted in history and tradition with the “implicit” understanding of liberty. In other words, for rights using due process there is clear understanding that supporting such rights is seen throughout history and because liberty is subjective with little guidance provided by the constitution on what it entails, once again, historical context must be considered. Thus, because historically abortion was outlawed one could argue using due process is not valid.
The issue I have with this notion is that it views history has fixed, static, unchanging which we know is not true. For instance, during the 18th and 19th century slavery was recognized in the constitution, such as in the Three-fifth compromise, but later abolished. Additionally, what defines rooted in history? How far back is history supposed to go to claim something is rooted in history? Research has shown more people favor abortion should be legal than illegal when comparing data from 1995 to now3. Does this not count as history? Ironically, when turning to history the dangerous history of self-induced abortion is overlooked.
“…it held that abortion right…is part of a right to privacy…”
Roe argued that a women’s right to an abortion was built on the notion a women had a right to privacy. However, the justices argue this right to privacy has two different meanings.
“…it conflated two very different meanings of the term: the right to shield information from disclosure and the right to make and implement important personal decisions without government interference.”1
This right to privacy does not include a women’s right to terminate a pregnancy, but rights such as, the right to marry, to procreate, to raising one’s child as they choose, etc., similarly, to liberty the right to privacy encompasses certain type of rights.
“Roe was egregiously wrong from the start…[and] its reasoning was exceptionally weak”
Overall, what I gather from Justices Alito’s leaked opinion is that if looking from the perspective of US history, tradition and strictly following what’s in the constitution I can see why the justices ruled as they did. I can see why they thought the reasoning supporting Roe had always been weak. However, I believe we as a country do ourselves a disservice to get so caught up on tradition. History is not frozen, but people are constantly evolving and law should be representative of this. I also believe NO person or piece of doctrine should have the right to force a woman to become or remain pregnant against her will. Although less highlight in society, pregnancy is dangerous and among developed countries the US has the worst maternal mortality rates, with a rate of 26 deaths per 100,000 live births4 with rates being highest among black mothers. A woman should not have to risk her life against her will based on the decision of another. Victims of sexual violence should not have to carry a child of her offender.
Instead of forced pregnancies, the country should focus on providing resources so a women wouldn’t have to consider an abortion. Mandate pay maternity leave, subsidized daycare, affordable housing, and accessible housing for domestic violence survivors to name a few, but our government isn’t trying to pass those laws because they’re too expensive. I end with leave women\’s reproductive organs alone.
Stay blessed. Remember, you are loved ❤️
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