The Collapse Of Abortion Justice Is Just The Beginning
Every one of the substantive rights this country has recognized — and celebrated — in the past 150 years could be under threat, from contraception to marriage equality.
“The arc of the moral universe is long, but it bends toward justice.”
~ Martin Luther King, Jr.
Have you ever taken comfort in that quote? I know I have. And as we fight against forces of racism, misogyny, homophobia, bigotry, and outright fascism, it is comforting to think that while progress may be slow, it’s also inevitable.
Deep down, many of us may not have really believed that Roe v. Wade would ever be overturned, that our children could be born into a world with fewer rights than we started with. But the anti-choice machine has been laying the groundwork to roll back this fundamental right for fifty years.
Now the day is approaching: Roe v. Wade will be overturned. In 2018, right after Brett Kavanaugh was confirmed to the Supreme Court (despite credible allegations of attempted sexual assault) Mississippi passed a law banning abortion after 15 weeks. Lawmakers in Mississippi knew that this law violated Roe’s protection of pre-viability abortion, but that was exactly the point. Conservatives felt ready to take on Roe head-on at the Supreme Court.
Decades of undermining Roe now appear to have paid off. In the leaked draft of the opinion in Dobbs v. Mississippi, five Justices of the U.S. Supreme Court now are ready to hold that “Roe and Casey [v. Planned Parenthood] must be overruled.”
Writing for the majority, Justice Alito does not temper his disdain for Roe v. Wade, calling it “egregiously wrong from the start” and showing no regard to the precedent that millions have relied on for self-determination and bodily autonomy for almost 50 years.
This is not the gradual death to Roe — the thousands of papercuts — that some expected.
While abortion is still legal in all 50 states, very soon there will no longer be any protection from the U.S. Constitution for a person seeking an abortion.
Without federal constitutional protections, states will now decide whether to protect or criminalize abortion. Already, 26 states are ready with trigger laws to ban abortion the minute Dobbs overrules Roe. Some people may be able to travel to sanctuary states to seek abortion care, but many people — particularly people of color and those with fewer resources — will not be able to access this care.
In the country with the highest maternal mortality rate in the industrialized world, many more will die simply because of the state they live in.
The draft Supreme Court opinion appears dangerously divorced from all of these real-life implications.
Seemingly more preoccupied with analyzing views on abortion from English legal treatises written in the 13th and 17th centuries, the Supreme Court does not acknowledge that abortion restrictions disproportionately impact pregnant people of color or lower-income pregnant people or the affect this will have on already significant racial health disparities.
Nor does the Supreme Court take note of the campaign of control that conservative states have waged over pregnant people’s bodies. Dozens of briefs laid this stark reality before the Justices.
Yet, in less than three pages, Justice Alito dismisses that restricting abortion could be motivated by “invidiously discriminatory animus toward women.” (i.e., we’re just protecting state-level democracy, not taking aim at women or people with uteruses!)
But even this fixation on history is disingenuous because history shows that the realities of today’s world are exactly what should be taken into consideration when construing the Constitution. The founders believed that “laws and institutions must go hand in hand with the progress of the human mind” and did not argue that their ideas on what constitutes liberty should bind every generation of Americans to come.
And it’s a good thing they didn’t because our founders wrote a Constitution that originally upheld slavery, counted Black people as ⅗ of a person, and denied the right to vote to women and people of color.
The saving grace of our system of constitutional rights is that it is meant to grow over time, not shrink.
What might be most disturbing about the Dobbs opinion is that it won’t just roll back abortion rights. This new Supreme Court majority — Justices Thomas, Alito, Gorsuch, Kavanaugh, and Coney Barrett — is laying the groundwork for a new repeal of constitutional rights and a regressive interpretation of liberty.
The Dobbs draft opinion sets a new standard for evaluating a constitutional right: they must be “deeply rooted in the Nation’s history and traditions” traceable to the time of the Fourteenth Amendment’s passage (1868).
This means that every one of the substantive rights that this country has recognized — and celebrated — in the past 150 years could be under threat, from contraception to marriage equality.
In his opinion in Dobbs, Justice Alito barely disguises that the next aim of the Court’s roll-back will be access to marriage for same-sex couples with disparaging slights against Obergefell v. Hodges (recognizing access to marriage for same-sex couples) and Lawrence v. Texas (striking down state law criminalizing “homosexual conduct”).
And the attorney defending Texas’s anti-abortion vigilante law is already prepared to lead the campaign to role back inter-racial marriage.
We should all be alarmed that our rights and liberties can be so easily rolled back under this new Supreme Court majority. No longer can we rely on the Constitution to grow in its commitment to “establish Justice” and “form a more perfect Union.”
The Bill of Rights’ assurance that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” has been rendered meaningless.
This Supreme Court has frozen liberty in the Civil War era and appears intent on erasing every piece of progress since.
We like to imagine the arc of history bending toward justice, but we must recognize that this is an intention, something we have to fight to bring to fruition, not a fact that will simply unfold as time passes on.
Now is the time to remember Dr. King’s call to action:
“[When] we are confronted with the fierce urgency of now…there is such a thing as being too late. This is no time for apathy or complacency. This is a time for vigorous and positive action.”
The battle for abortion rights — for all of the rights and liberties we have won since the Civil War — will need to be fought on every front. The anti-choice movement has been waging its campaign for 50 years, and we will need to show just as much dedication and doggedness to fight for our rights.
We must demand that leaders at all levels of government unequivocally support abortion to earn our vote. We must support non-profits that can connect people in regressive states to abortion services and contribute to legal defense funds when people are criminalized for exercising bodily autonomy.
Together we can remain vigilant, and support one another in the face of exhaustion or complacency as we work to bend the arc of our history back toward progress.
This is about abortion and so much more.
