Justice Alito is Wrong

 

Rights not mentioned in the Constitution do indeed exist in the opinions of many. Contrary to the reasoning by Justice Alito, many rights that have evolved over the centuries since the Constitution was written are correctly held. The originalists hold to the writings of over 200 years ago. These laws did not allow that women had the right to vote, and permitted slavery, holding that slaves were not full citizens and did not provide for Native Americans. We have moved on, as a country, from those times as we should have.

That is why this draft opinion written in February as the potential majority opinion in the cases presented this year to the court about abortion rights from Mississippi and Texas has caused so much furor after it was leaked this week. This opinion seems to have been written in anger, anger at the Roe v. Wade and Casey decisions, anger at women who would seek an abortion, anger that this medical procedure was ever permitted when abortion was not mentioned in the Constitution. Never mind that these two previous court decisions were considered settled law or precedent and affirmed as such by the current court justices in their Senate hearings before confirmation.

Republicans this week were concentrating on the matter of the leak, rather than the substance of the offensive remarks in this draft opinion. Some on the right have been quick to blame Judge Ketanji Brown Jackson, who has not even been seated on the court yet and would not have been part of the discussions in the court. Absurd as this may be, it is believed by some. Others have suggested that the leak happened from the right as a move to make certain that this expansive decision would be supported by at least five justices and thus be finalized (embarrassing any justice who might consider changing the initial straw vote in favor).

As the two parties seem to live in separate universes, the Democrats were concentrating on the substance of the opinion and vowing to codify Roe into law. Although the measure passed in the House, it faces a filibuster in the Senate. Senators Collins and Murkowski favor Roe, but they have stated they dislike the proposed Democratic legislation. Democratic Senator Manchin, whose state gave DJT a high percentage of its votes, will not vote in favor, nor will Senator Sinema, so the measure will fail. Majority leader Schumer is determined to force a vote and use the Republicans’ nay votes against them in the fall elections. Many pundits thought that this issue could energize Democratic voters who were facing a dismal outlook for the November elections.

Predictably, the leak created a firestorm on both the left and the right. Both sides demonstrated on the Court steps as soon as the leak was announced on Monday and protests have continued since then, both in Washington DC and across the country. The final court decision is not expected to be announced until the end of June; Justice Alito stated that his opinion does not extend to other rights not specified in the Constitution. That has not stopped many from believing that other issues that were allowed previously, and were considered precedent, are at risk. These concerns include contraception, same-sex marriage, and interracial marriages that have each been based on interpretations of the 14^th Amendment and the right to privacy. With many of these rights, individual states, at times, prohibited the expression of the action described. Jennifer Rubin, as noted above, describes the court as tossing aside precedent and acting on their supporters’ Christian nationalism.

Women, and men, who took to the streets claiming “no coat hangers” and “my body, my rights,” were not listening to cautions and did not believe that the outcome might be different. American women of child-bearing age today have never lived in a country that restricted abortion the way this decision might do. They are unaware of the horrors of illegal abortions in the back alley or from the casual ‘mid-wife’ out in the country that were prevalent in the pre-Roe days. As the women’s movements note, state laws will not end abortions, they will just end safe abortions. If this leaked opinion comes down as accurate, then about half of the states, in short order, would implement anti-abortion restrictions. Some states are trying to pass laws that would call abortions homicide and punish the physicians who performed them; others are attacking IVF and stored eggs that are sometimes destroyed. In an article in Harpers’ Magazine, Jennifer Wright points out that many abortion foes believe that women attempting to conceive have good intentions; however, some evangelicals and Catholics oppose the idea of IVF. Others are trying to end contraceptive use, which has long been allowed. Who knows where these attempts will stop? Many women see these regulations as an attempt by the state to control their bodies and they believe it should not have a role in what is a private decision.

Many women’s groups have been preparing for this day by returning to the underground networks that existed before Roe. Recently, in an article in the Atlantic, reporter Jessica Bruder, who wrote “Nomadland”, wrote about the ‘Jane network’ and other groups of women who are preparing for a post-Roe world (a world that many hoped would never happen). They are holding workshops, teaching women about obtaining the medications that end a pregnancy safely, and how to perform abortions. Some states are trying to outlaw such medications and require in-person medical office visits for the provision of oral therapies since the medications are often prescribed in video visits. In recent years, more than half of the abortions before 10 weeks gestation are provided by the prescription of the oral medications used: first Mifepristone is given, followed by Misoprostol two days later. The FDA recently allowed distribution to occur online with valid prescriptions; some regional women’s groups have encouraged stockpiling of the medicines to avoid future scarcities as the red states continue to add restrictions.

I grew up in the era before Roe; women and girls still had unwanted pregnancies, they just had fewer options. In high school, sometimes girls went to stay with a “relative who was ill” for a while or went to a “home for unwed mothers” where their baby was taken away as soon as it was born and given up for adoption. Most of these girls never saw their children. Some, of course, ended their pregnancies at the hands of untrained butchers and ended up in the hospital with infections and other complications. In my early days as a nurse, I saw too many of these patients, some who died, and others who had to have emergency hysterectomies or other procedures. I agree with those marching in the streets who say: “We can’t go back!” Losing abortion as a national right and having it replaced by one which is returned to the states to decide separately will cause confusion and dismay.

I am thankful that I live in the state of Maryland, where abortion rights were approved by both the voters and the legislature. There is a move here to place it in the state constitution as a right, but as some have mentioned, this leaked opinion has jolted those who considered this right enshrined for the nation in its Constitution. Other states such as New York, Illinois, Connecticut, and California are expanding access, but that does not help a girl who lives in the deep south or upper Midwest where more restrictions will soon be added. Abortions for poor women who cannot afford to travel or others who cannot find care for the children they already have so they can travel will become more difficult. So, inevitably, the poor will suffer the most; women of color will pay the price for the fanaticism of the right. Some of the underground networks are raising funds to provide for travel and lodging for women who must leave their states, but I fear the need will vastly outweigh the funds available. I do not believe that said pregnant women or girls will have their baby and leave it at a nearby fire station, as so improbably suggested by Justice Barrett. As usual, people of means who can fly to another state that allows abortions will do so.

Ms. Magazine published poetry by Amanda Gorman about abortion that was written in 2019 before she became famous by reading a poem at President’s Biden inauguration. She was remarkably prescient then, commenting that losing this right would decrease equality and further harm those women in poverty or of color. Clicking on the link above will allow you to hear her reading this poem which is printed below.

Eight Reasons to Stand Up Against Abortion Bans Today, According to Amanda Gorman

1.     “When the penalty for rape is less than the penalty for abortion after the rape, you know this isn’t about caring for women and girls. It’s about controlling them.”

2.     “Through forcing them into motherhood before they’re ready, these bans steadily sustain the patriarchy, but also chain families in poverty and maintain economic inequality.”

3.     “Pregnancy is a private and personal decision and should not require the permission of any politician.”

4.     “For all time, regardless of whether it’s a crime, women have and will always seek their own reproductive destinies. All these penalties do is subdue women’s freedom to get healthy, safe services when they most need them.”

5.     “Fight to keep Roe v. Wade alive. By the term ‘overturn Roe v. Wade‘, the main concern is that the Supreme Court will let states thwart a woman’s path to abortion with undue burdens.”

6.     “One thing is true and certain: These predictions aren’t a distortion, hypothetical, or theoretical. Women already face their disproportion of undue burdens when seeking abortions. If the sexes and all people are to be equal, abortion has to be actually accessible and not just technically legal.”

7.     “Despite what you might hear, this right here isn’t only about women and girls. This fight is about about fundamental civil rights. Women are a big part of it, but at the heart of it are freedom over how fast our families grow goes farther and larger than any one of us. It’s about every single one of us.”

8.     “This change can’t wait. We’ve got the energy, the moment, the movement, and the thundering numbers.”

[‘The then-21-year-old National Youth Poet Laureate caps off the video with this soaring testimony of hope and motivation to keep fighting:’ (MS edits)]

“The alt-right’s biggest blunder is that most Americans aren’t under their impression that a woman’s body is up to them to decide. So when you’re outraged, these lawmakers are terrified. They want our tide to lose hope, to back up, pack up, and go home, so don’t. We won’t. We are never alone when we fight fire with feminism.

“So go, be unafraid. We will not be delayed, we will not be masquerade to the tale of a handmaid. We will not let Roe v. Wade slowly fade because when we show up today, we’re already standing up with the tomorrow we made.”

538 recently reported on the issues of abortion and noted that most Americans do not wish to overturn Roe. Over 50% approve of abortion in the first trimester, but the number decreases as the pregnancy progresses. Roe permitted abortion before “quickening” or viability and defined that as 23 weeks. They noted also that many residents do not realize that laws in their states have changed as many of the Republicans promoting them are not publicizing these efforts except to their base. Democrats are looking at this issue as one that might energize their base for the mid-terms, but we shall see what happens. Opinions on abortion rights vary by party, however, all parties, Democrats, Independents, and Republicans, have significant populations in support.

538 also concludes: “But at the very least, a Supreme Court ruling that abruptly ends the constitutional right to abortion would vault the issue to the center of the political conversation — and change Americans’ lives in ways that many people may not expect.”

In conclusion, I believe that this opinion was decided on spurious grounds by a justice who appears to believe that women have no rights in controlling their bodies and that the state can and should decide their fate. Who am I to question a Supreme Court Justice? I am a woman with a right to control my body, so he could not, in my opinion, be more incorrect.

‘Til next week-Peace!