The Death of Roe v. Wade



I started writing this post in early May, after Justice Alito’s draft opinion was “leaked” by someone not yet named. Opinions can and do change as they move from drafts to a final document during Supreme Court deliberations, so I figured I would hold off posting this essay until it became official that Roe v. Wade was no longer the law of the land. Today, unfortunately, is that day.


The final opinion will be examined and analyzed in excruciating detail as time goes on, and rightfully so; this decision overturns almost 50 years of legal precedent that protected a woman’s right to choose whether to terminate her pregnancy. But I haven’t read it all and I’m not sure I will. In law school I enjoyed Supreme Court Jurisprudence, but I don’t have the heart to read the ins and outs of this one. So, I’ll obviate a blow-by-blow of the logic behind the majority and the dissent.


A few things we can say for sure though:


1) Abortion will be illegal in at least half the states, those with Republican-controlled capitals. In fact, 13 states have already enacted ‘trigger laws’, designed to take effect immediately after the Court’s decision. Some of these laws allow for abortion in the cases of incest, rape, or danger to the mother, and some ban it completely, in all cases.


2) “Blue” states are likely to keep abortion accessible to anyone who needs one, regardless of where they are from. If a woman in a “Red” state can afford it, her only option would be to travel to the nearest state that permits abortion. Knowing this is the case, some Republican legislatures have proposed making it illegal for a resident to go out-of-state to attain an abortion, making them subject to arrest upon return to their home state.


3) The need for abortions, and the procedure itself, will not disappear, regardless of the Court’s decision today. Unwanted and unplanned pregnancies are as old as society itself, and this will not cease to be true after today’s decision. Instead, women will receive “illegal” abortions, often by those without training, or they will simply perform the procedure themselves. Both will have disastrous effects.


How did we get here? Roe v. Wade, and more recently Casey v. Planned Parenthood, have been the law of the land for decades, withstanding multiple attempts to reverse them. Why now? For starters, we know that the Christian Right has made this a bellwether issue for at least thirty years and there was a conscious (and successful) attempt made to stack the lower courts. Fast forward 30 years and we find President Donald Trump vowing to name justices who would eliminate Roe v. Wade, to all levels of the federal judiciary.


There are many theories why this particular issue might have risen to prominence within conservative circles, but the one that resonates with me is that the pro-life movement is ultimately about controlling women. Christians who consider themselves pro-life obviously have many things to hang their hats on, but this one consumes all focus.


When Democrat John Kerry ran for president against Christian Republican George W. Bush in 2004, the Dean of Students at Notre Dame, arguably the most prestigious Catholic university in the country, endorsed Kerry. He disagreed with Kerry’s pro-choice stance, but reiterated that the teachings of Christ extend beyond abortion, to include taking care of the poor, avoiding war and the resultant death of innocents, respect for the planet, etc.


And many of these folks who consider themselves pro-life support capital punishment and gun rights. Indeed, yesterday, the USSC ruled unconstitutional a New York law that required background checks for people wanting to carry a concealed weapon. So: people’s access to guns, (by definition, instruments to eradicate life) = in need of protection. And electrical activity in a group of microscopic cells that current science tells us is not a heartbeat nor a human = in need of protection even at the risk of the mother dying. These same politicians and judges, and those who vote for them, keep children in cages at the U.S. border awaiting deportation and deny same-sex couples the ability to adopt kids while half a million children are in foster care hoping for adoption. I went to Catholic school for 11 years, and while I’m still not an expert, I find it hard to define these positions as “pro-life”.


Catholic nun Sister Helen Prejean put it this way: “…people who are demanding stricter abortion laws- they will tell you they are pro-life. They are lying. Pro-lifers aren’t against executions, they aren’t for health care and education for everyone. They aren’t for better schools and reduced military expenses. They aren’t for better childcare, fairer wages, worker safety or fighting climate change. They are simply against abortion. Once the baby is born, they are done with it. The honest ones, who really oppose abortion are merely pro-birth.”


Some observers have said the ruling confirms we are moving towards a theocracy, but I’m not so sure. The dictionary says this is where people (often priests) rule in the name of god, and I’m not sure the Christian god would endorse what is happening here in America. My recent interviewee Karl Denson put it this way: “I’m a John Lennonist- Jesus was alright, but his apostles were kind of thick”. Who ARE these people speaking for god, while ignoring many fundamental tenets of the church?


And what does this ruling tell us about the status of women? That after all these years, they are still second-class citizens. If this electrical activity is truly human life, as some say, why are women the only one’s responsible for it? Who is the dad? What is his role? Does he start paying child support if he and mom are not still together?


At a deeper level, it shows how little society values women, a truism throughout much of human history. In our society we accept the notion of bodily autonomy. That’s why you can’t touch someone without their permission without continuous consent, can’t force someone to donate blood or organs, etc. And a fetus is someone’s body parts- it’s there by permission, it’s not there by “right”, so it needs continuous consent, which can be denied or withdrawn at any time. This is entirely consistent with our social and legal norms, because if I need someone’s body part(s) to survive, that person is legally allowed to deny me their use. So, the pro-life/pro-birth argument essentially claims that the fetus has the right to another person’s body parts, even against that person’s wishes, which would extend more rights to the fetus than to a born person. Stated bluntly, a corpse has more rights than a pregnant woman in this scenario.


What can we do going forward? First, people can vote for candidates who make the autonomy of women’s bodies a priority. More people voting would be a good step, since the U.S. has a sizeable population who don’t vote.


Relatedly, we should vote for politicians who represent their constituency consistently. The whole idea behind a representative democracy is to vote for people who promise to vote as we would, if we could- an impossibility in a country of 300 million people. And if they don’t vote as we would, then we vote them out. Yet, Forbes today linked to a Gallup poll that showed 80% of Americans “support abortion in all or most cases” and the majority of Americans do not support the overturning of Roe. Why do our elected representatives not represent us?


In terms of the Supreme Court, I think fundamental changes should be made that make the court more in tune with the society over which they rule. Term limits, for example, are imperative. I will write more about this another day, but a staggered, term-limited Supreme Court is much more democratic than our current system.


Finally, we simply need more social activism. The journalist Neil deMause told me “we’ve had months to prepare for this, but instead of doing some sort of general strike or activism, people have just changed their Facebook profile picture”. This applies to many social issues, but an informed and activist public might be our only hope.