Uphold Roe V. Wade


Ceci Coughlin, Staff Writer

A woman’s right to choose is yet again on trial in the case Dobbs v. Jackson Women’s Health Organization. This past week, a draft of Justice Alito’s opinion, which would overturn Roe v. Wade and Planned Parenthood v. Casey, was leaked from the Supreme Court for the first time in history. I have heard numerous conversations surrounding the Politico leak and I have been met with a variety of so-called nuanced opinions on the seemingly unavoidable overturning of the two cases, Roe in particular. For months, the inevitability of this decision has been on my mind as a result of the post-Trump composition of the court, but only after this draft leaked did my emotions about what Roe really protects hit me.

Although Roe is about the Due Process Clause, the right to abortion is also about equality – something guaranteed by our Constitution and something that should not be at a state’s discretion. With that, I acknowledge that an equal rights case could have been another option for the legal backing of Roe. Men and women engage in the same act to have a child, but women, trans men, and nonbinary people with uteruses are the ones subject to health risks and economic consequences, such as a loss of income for every child that they have or a loss in lifetime earnings compared to men. If a person does not have a say in whether or not they will experience these consequences, they are being put at a disadvantage on the basis of their sex. This is something that men, or people with testes, simply cannot attest to. The ability to not become pregnant, if a person so chooses — a right that people who cannot become pregnant have — is protected by Griswold v. Connecticut by allowing the use of contraceptives. Therefore, the ability to end a pregnancy if a person so chooses — something a man will never have to deal with simply because of his sex — should also not be disputed. As Senator Kirsten Gillibrand said, when you take away a woman’s right to health and well-being, she is no longer a full citizen.

The main critique of Roe and Casey by Justice Alito revolves around the usage of the Due Process Clause of the 14th Amendment. Due process requires that states must not deprive citizens of “life, liberty of property without due process of law,” protecting the legal rights of citizens. Substantive due process protects unenumerated rights — those that are not listed in the Constitution but are instead “penumbras” of enumerated rights. These are up to the Supreme Court to decide upon. The right to privacy is one such right, first established in 1965 in Griswold, which struck down a law banning the use of contraceptives for married couples. The right to abortion stems from this right to privacy, expanding substantive due process.

Alito claims that the Constitution and the Due Process Clause of the 14th Amendment make no reference to abortion. This assertion assumes that the right to abortion is different from other unenumerated due process rights because it destroys “fetal life.” But if Alito’s logic concludes that the right to abortion as an extension of privacy cannot be found in American tradition or the Constitution, then we can also say goodbye to other due process privacy rights.

Alito argues that the Dobbs verdict is unique and will not leave an opening for other Due Process cases to be overturned, but it is hard to believe this distinction. Privacy extends to cases like Obergefell v. Hodges that allows same-sex marriage; Lawrence v. Texas that allows same-sex sexual activity; Griswold; even Skinner v. Oklahoma that places restrictions on sterilization laws, among others. This is where Alito’s reasoning that some due process rights do not exist falls apart. Roe has the potential to create a legal opening to question the right to privacy that prohibits anti-sodomy laws, allows marriage equality, and so much more. To be clear, overturning Roe will not automatically cause this, and I do not want to fearmonger, but this correlation is important nonetheless.

Alito also argues that unenumerated rights must have roots in the “tradition of the nation,” of which the Supreme Court has identified many that do not. He mentions how abortion has been addressed as something criminal by lawmakers “for centuries,” like Sir Matthew Hale. Hale was a 17th-century jurist notorious for misogyny and his belief that rape is exempt in marriage, a concept that has influenced the skepticality of reports of rape seen in recent history. In his argument, Alito ignored the philosophies of other historical figures who had opposing views on the treatment of women.

Obviously, the editors of the Constitution did not care for women’s rights. The drafting of the 14th Amendment itself after the Civil War was to confront the failings of the Constitution. So yes, the Constitution does not, nor did it intend to, refer to abortion. Roe is essentially about a right to privacy, and the role of the court system is to expand unenumerated rights and to interpret the law using the social contexts in which the cases are brought. Thus, to pretend that abortion is different would have major repercussions. In fact, Alito called Roe as “egregiously wrong” as Plessy v. Ferguson. This rhetoric is quite disturbing; by overturning Plessy in Brown v. Board, the rights of Americans were expanded, not restricted (as overturning Roe would do).

Alito reprimanded the justification of abortion “through appeals to a broader right to autonomy.” This statement mocks the usage of the right to privacy in other due process cases. Alito even mentions that it “could license fundamental rights to illicit drug use, prostitution, and the like.” Roe has been active for fifty years, and these “fundamental rights” have not gone anywhere close to the Supreme Court. Thus, Alito’s argument that removing the right to abortion is an isolated decision is very hard to believe and, put simply, is incredibly terrifying.

I may not be able to convince certain political figures or justices like Amy Coney Barrett to be pro-choice, but I can address the student body. I can speak on how vital the fifty years of Roe have been to the American people and its impacts on the livelihoods of myself and others, particularly those with uteruses.

Looking at Roe solely through a legal lens is impossible, as supporters of the overturn might argue. The American legal system was built upon social understandings of common morality, while abortion is partly such a polarizing issue because of the moral question it addresses. Even an anti-Roe concept like the “right to life” is inherently moral and based upon public opinion. Therefore, devolving the topic of abortion to the states and criminalizing abortion is going to have social repercussions. Senator Mitch McConnell stated that a federal abortion ban could even find its way into law if and when Roe is overturned, something that seems contradictory to conservative politics in leaving the decision up to the states.

The first step in examining Roe’s external influences is to look at who it affects. Those who will be most impacted by Roe are working-class women (disproportionately people of color), which reflects a larger capitalist scheme. Our economy relies upon a large working class for profit. If that working class is not having children because they do not have the resources to support one, that poses an economic problem to a country already hitting record low birth rates. Misogyny also plays a significant part; historically, women have been used as a machine for the reproduction of workers and to keep men happy and healthy through traditional gender roles. The state has cruelly justified this by using the argument of state interest in “fetal life” — one that has become a genuine movement that seems to not be about reproductive autonomy. While working class women will inevitably face these challenges, wealthy women will be able to access abortions by crossing state lines.

In fact, Alito did mention in his draft the difficulties of childcare and pregnancy outside of the rule of law, reflecting the externality of the Roe decision and how, unfortunately, political factors cannot be pushed aside in the decision. He mentioned that federal state laws ban discrimination on pregnancy, maternity leave is guaranteed in many cases, medical care is covered by insurance, “safe haven” laws have been adopted by states, and foster care can take in unwanted or abandoned babies. This reasoning is absolutely ludicrous; Alito failed to mention that the United States has nearly the highest infant and maternal mortality rate and the worst child care, health care, and postpartum support system of all high-income countries. Overloading the already unstable foster care system or abandoning a child at a local police station by “safe-haven” law is not “pro-life.” The state is not equipped to handle this increase of children in foster care, child abuse, and generational poverty. Most importantly, conservative politicians who tend to be anti-abortion also tend to oppose these kinds of social programs from existing in the first place. It is also a possibility that some future abortion state laws will not exempt abortions for cases of rape or incest.

With the gridlock of the legislature, Roe will not be codified into law. But what I will mention is that the only thing enforcing Supreme Court decisions is the public, not any other external body. The Democratic party could even declare the court illegitimate and simply not follow the new precedent. I’m relatively certain that would never happen but, at the very least, it reflects the power of the people and the power of public opinion. The Supreme Court is an undemocratic institution, and the Court composition does not reflect the wants and needs of the American people. Women will continue to get abortions in states that have trigger laws at the ready because they have no other choice; they will just be more dangerous. Fifty years after Roe, I am sick of my rights being put down by smug men who believe that a collection of cells is more important than my livelihood. You should be too.