The Illusion of Freedom and Steps We Can Take to Make Freedom a Reality
Today is meant to be a celebration of freedom, but freedom is illusory when “America the Great” is still shackled by an old power that goes by the name of Patriarchy. America is not free while the bodies that inhabit it are policed. America is not free while pregnant individuals do not have the power to make decisions regarding their own body. America is not free while young peoples’ gender identities are regulated. America is not free while peoples’ ability to marry the ones they love are threatened.
246 years ago, thirteen colonies managed to overcome the power of the British crown to embark on the “Great American Experiment,” establishing a constitutional republic that would set the foundation for the rule of law and principles of equality for the country. Today, the Patriarchy is actively destroying the rule of law and frameworks of equality that Americans hold so much pride in, yet we succumb to it. And all we are left with is a semblance of freedom.
When the Dobbs leak was released in early May I was studying for my gender discrimination law final exam. I was fresh from having explored the autonomy framework in Roe and its progeny the week before and was shocked that America’s last line of defense — the highest court in the land — was on the brink of surrendering to the Patriarchy. Naively, I strongly believed stare decisis would hold down the fort.
From day one of law school, law students in America are taught that precedent is key to the formation of law. We are taught to piece together precedent to flesh out rules that regulate Americans’ lives. In Roe v. Wade, the Supreme Court determined that pregnant individuals have a right to privacy which encompasses the right to make decisions regarding whether or not to terminate a pregnancy. Safeguarding the right to privacy established under Griswold v. Connecticut,[1] the Court in Roe balanced individual interests and state interests by setting up a legal framework for states’ regulation of abortions that did not permit states to interfere with individuals’ decisions to terminate a pregnancy prior to the end of the first trimester of pregnancy. Nineteen years after Roe, the Court increased the standard of proof for pregnant individuals in Planned Parenthood v. Casey by gutting Roe’s trimester framework and requiring that state regulations on abortion place an undue burden on individuals seeking an abortion. It’s critical to note that in issuing its decision the Court tried to hammer down the point that its decision upheld the essence of Roe and therefore, followed precedent.
Similarly, in Whole Woman’s Health v. Hellerstedt (2016) the Court continued to restrict abortion access by requiring pregnant individuals to prove that state regulations have the purpose or effect of placing a substantial obstacle on individuals seeking abortions in order to meet Casey’s undue burden standard that would relegate the relevant state regulation to an unconstitutional status. In so doing, the Court has continually held on to the idea that states have an interest in preserving fetal life that outweighs the interest of the living birthing parent, thereby straying away from its initial inclination to balance all pertinent interests, but nevertheless conforming with precedent. Although the Court took gradual steps to strip pregnant individuals of their right to access abortions free from government interference, had the Court followed the principle of stare decisis in Dobbs it would have had to make a ruling in line with Casey’s undue burden standard. What does this mean for the rule of law when Americans are subject to the whims of the Court?
It is quite evident that the Supreme Court has strayed away from the Founders’ vision. The Court is tasked with neutrally interpreting the Constitution to ensure all laws conform with the highest law of the land. But as American society becomes more and more polarized so does the Court. Supreme Court decisions, as we continually see, do not rely on the entirety of the facts and a comprehensive neutral analysis of the law. They rely on who is on the bench and the beliefs they hold. All members of the Court are guilty of this. What is even more ironic is that Justices who see originalism as a North Star, making decisions based on the “original meaning” of the Constitution, are just as guilty of driving the Court away from its original mandate. What does this mean for the legitimacy of the Court and the legal profession and what can we do to pick up the pieces?
For one, it’s time for the legal field to actively commit to becoming more diverse and equitable. A law school education has to become more accessible for low-income people and people of color. State bars have to be eliminated because they serve no true purpose other than to function as gatekeepers to artificially preserve white professional elitism. The culture within the field has to change. Law schools and law firms reinforce white professional elitism by creating a resource-limited, competitive environment that is profit-driven and void of empathy and race consciousness. These changes would create opportunities for people from diverse and marginalized backgrounds to join the field and to rise through the ranks of the profession including the Supreme Court. If neutrality is an unfair or unrealistic standard to expect of the Court, then we should at least ensure that diverse perspectives are represented.
As for reproductive justice, this is an opportunity to build a stronger legal foundation for the recognition and protection of reproductive rights. Roe was premised on principles of autonomy — the right to make decisions free from government intervention. Under Roe, pregnant individuals could access an abortion if they so chose and had the means to, but they did not have a right to access an abortion. The former is a negative right and the latter is a positive right. A negative right is a right to do something without government interference whereas a positive right is an entitlement which the state must provide or protect. This subtle distinction makes all the difference for low-income, pregnant people of color because under Roe the ability to choose an abortion was only available to people that could afford to seek one or were within proximity of an abortion providing clinic. In other words, under Roe the ability to choose to have an abortion was limited to those in positions of privilege.
Human rights instruments have the ability to protect reproductive rights and propel us in a direction towards substantive equality. Article 12.1 of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) specifically calls on States to “take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.” Further elaborating on this human right, the CEDAW Committee has declared that “[v]iolations of women’s sexual and reproductive health and rights, such as forced sterilizations, forced abortion, forced pregnancy, criminalization of abortion, denial or delay of safe abortion and post-abortion care, forced continuation of pregnancy, abuse and mistreatment of women and girls seeking sexual and reproductive health information, goods and services, are forms of gender-based violence that … amount to torture or cruel, inhuman or degrading treatment.”[2] As such, CEDAW demands that States do all that is necessary to ensure people are not forced to seek illegal abortions.[3] The United States is one of six countries[4] in the world that has yet to ratify CEDAW because ratifying CEDAW would make gender nondiscrimination a part of the supreme law of the land. If the United States were to ratify CEDAW it would have a duty to enforce and protect the rights enumerated within it as per Article VI of the Constitution.
From the streets of Mexico to the halls of the United Nations, I have been researching and working on gender justice issues related to bodily autonomy and gender-based violence for the last nine years in various capacities both domestically and internationally. Throughout my research, it has been common to see the United States justify its invasion of other sovereign countries in the name of freedom, democracy, and the liberation of women. In my current international development research, I see the United States reference its commitment to ensuring that other countries (typically countries in the Global South) comply with their international human rights obligations, specifically CEDAW. It’s critical that we leverage this moment to hold the United States accountable, because Americans are losing their autonomy and are being forced to carry out pregnancies that will exacerbate their conditions of poverty. How can the United States demand that other countries respect these human rights, when it’s not even willing to recognize them for its own people? The world is watching and it’s time for the United States to live out the values it preaches.
In addition to advocating for the ratification of CEDAW, we must advocate for the inclusion of the Equal Rights Amendment (ERA) in the Constitution. The ERA would explicitly embed sex equality in the Constitution and would have the ability to invalidate state and federal laws that discriminate on the basis of sex. While it is not perfect,[5] the ERA has the potential to protect abortion access. Experts have documented how certain states like New Mexico have protected the right to choose by including ERAs in their state constitutions.[6]
All in all, there is hope, but enacting legal change is a long-term game. While it is imperative that we advocate for changes in our constitutional and legal framework, we also need to recognize that time is a luxury when peoples’ lives are on the line. So, I call on everyone reading this article to contribute to the reproductive justice movement. Tap into your skills and talents because advocacy comes in many different shapes and forms. To my peers in the legal profession, I call on you to demand more from your schools, from your work places, and from your colleagues. We wield more power than we know, so we should be using that power to hold institutions accountable.
We all have a place in this fight! Here are some concrete actions you can take to fight for reproductive justice!
(1) Become a visible supporter of reproductive justice by wearing green! In Argentina, women started protesting for the decriminalization of abortion by wearing green bandanas. With time, the movement grew throughout Latin America, becoming la Marea Verde (the Green Wave). Slowly, the Green Wave will take hold in the U.S. with your help!
(2) Support local abortion funds. Activists have been working on this fight for years and have developed the machinery to do the work, let’s support them!
(3) Share information about the safety and availability of abortion pills (mifepristone and misoprostol). Abortion via pills are effective at least up to 10 weeks. Aid Access can get them mailed to your door regardless of where you live.
(4) If you live in California, you will also have the ability to vote to amend the state’s constitution to include the right to an abortion on November 8. Exercise your right to vote and set these rights in stone.
(5) Follow, support, and donate to the following organizations:
· Center for Reproductive Rights
· Planned Parenthood Federation of America
· American Civil Liberties Union (ACLU)
· National Black Women’s Reproductive Agenda
· National Latina Institute for Reproductive Justice
· National Abortion Federation
· Rape, Abuse & Incest National Network (RAINN)
Endnotes
[1] In Griswold v. Connecticut (1965), the Supreme Court held that specific guarantees in the Bill of Rights have penumbras from which zones of privacy can be inferred. In so doing, the Court found Connecticut’s law prohibiting married couples from accessing contraception unconstitutional because it violated the right to marital privacy.
[2] CEDAW Committee, General Recommendation Thirty-five, ¶18.
[3] Id. at ¶24(m).
[4] The other countries that have yet to ratify CEDAW are: Iran, Palau, Somalia, Sudan, and Tonga.
[5] The ERA provides: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” It is questionable as to whether discrimination “on account of sex” would apply to discrimination based on gender identity and sexual orientation. In 2020, the Supreme Court decided Bostock v. Clayton County, holding that discrimination “on the basis of sex” in Title VII covers discrimination based on gender identity and sexual orientation. Given that the Court was quick to overturn Roe in Dobbs, it is questionable whether the current Court would apply the Bostock holding to a case challenging a state law that discriminates on the basis of gender identity and/or sexual orientation under the ERA.
[6]Kate Kelly, “Kate Kelly on Fighting for Abortion Access After the Overturn of Roe v. Wade,” Oprah Daily (June 24, 2022).
