Tuesday, May 3, 2022

SCOTUS, Roe, Reproductive Rights, and All Our Freedoms: We must act


Politico, and now other outlets such as the NY Times,  have reported on a 98-page draft opinion from the Supreme Court that, in no uncertain terms, overturns both Roe v Wade and Casey and removes federal protection for abortion rights. While it is true that this is a draft and individual justices’ final decisions could change, the fact that 5 of the justices (Alito, who wrote it, Thomas, Gorsuch, Kavanaugh, and Coney Barrett) signed on to it makes it unlikely that the final decision will change. The only uncertain vote is that of Chief Justice Roberts, but he is no longer the swing vote he once was; the only difference is whether the vote to say that women have no Constitutional right to control their own bodies would be 6-3 or 5-4.

And, absolutely, let us be clear: that is what overturning the 50-year old Roe decision would mean, that the majority of the justices on the Supreme Court will have ruled that the control over a woman’s body, on whether she has to continue a pregnancy regardless of the circumstances, is in the hands of others. It may be Congress, state legislatures, governors, husbands or other relatives, churches that they may or may not belong to or believe in, petty pettifoggers, vicious misogynists, non-vicious misogynists (?), and folks with their own right-wing agendas, but not the women themselves. When Roe was decided, Justice Blackmun, who wrote the opinion, said abortion should be a decision made by a woman and her doctor. That was itself a bit paternalistic, but it was 50 years ago; I think the way that still should be read is “with adequate medical advice”, understanding the potential (or likely) risks involved in the decision that the woman makes. And ONLY the woman whose body involved should be able to make!

The majority of justices on the Supreme Court obviously do not believe this, along with a substantial minority – but definitely a minority – of the American people (most polls put support for Roe at about 70%). Their anti-abortion movement, well funded by multi-millionaires and billionaires, and supported by both the Catholic Church and many fundamentalist Protestant sects, seems to have finally won their cause after 50 years of reactionary fighting to impose their will on everyone else. It is a coup, be certain of that. It was, most immediately, made possible by the fact that Donald Trump got to name 3 Supreme Court justices, through the hypocritically evil behavior of Mitch McConnell the GOP Senate majority, which decided both to block President Obama’s appointment of Merrick Garland, not even holding hearings, 9 months before his term expired, and then approving Trump’s appointment of Amy Coney Barrett just weeks before the election he lost! This alone should be enough to make everyone who cares about reproductive rights, women’s rights, LGBTQ+ rights, voting rights, any rights, pull out all stops to make sure that the predicted Republican victory in November does NOT happen, that McConnell (and I make no analogies since anything you might compare him to would be insulted by the comparison) does NOT again become Majority Leader. The Democrats are far from perfect, but every justice who voted to repeal was appointed by a Republican, and it was the Republican majority in the Senate that facilitated the appointment of the last three. The SCOTUS opinion will say that the decision is Congress’ and there is no possibility that legislation maintaining women’s rights will get 60 votes in the Senate, or even 50 given Joe Manchin. The pundits and pollsters are all predicting a big INCREASE in GOP seats in November. Unless we do something about it.

Make no mistake: this SCOTUS decision is that the opinions of some people are worth more than the lives of others. No one who is opposed to abortion has ever been required to get one by the decision of Roe. Of course, there were many “mental disabled” people or others judged incompetent who were required to get them in the past, vicious abuse in itself. Ironically, the issue is that the same logic is now being applied to ALL women; they do not have the Constitutional right to make their own decisions about their own bodies.  As Susan Matthews in Slate writes, Justice Alito could not find a justification for the right to abortion in the Constitution because “The Constitution was not written for women”. It didn’t even give them the vote!

Although it does not change the core issue, the choice of words in the debate has been unfortunate; anti-abortion people use the term “murder” of “babies” while abortion rights advocates have used the term “choice”, as if it were a matter of convenience, or what color bedspread to get. It isn’t. It is about the decision to carry a pregnancy, something that is medically risky even in the lowest risk people (but a risk that most people who want to have a baby gladly accept), to give birth, to probably raise a child, to completely change their life, to possibly be unable to care for already-born children, to give birth to a child of a rapist (perhaps incestuous rapist), to give birth to a child already unable to survive because of genetic or other malformations occurring in utero, etc., etc., being only the right of the woman who is pregnant, and not that of anyone else. Consulting them – family, friends, doctors, is fine, but the decision needs to be that of the woman alone, not the state legislature.

This decision, if it stands, will not end abortion in the US, as it will send us back to pre-Roe times when the decision was left to the states (indeed, several states had legalized abortion before Roe). So, abortion will likely remain legal in states like NY, CA, MA, IL, etc. But other states, including of course TX and FL, which have already passed draconian restrictions on access to abortion, will almost undoubtedly make it illegal again, along with many others. It has been estimated that abortions will decrease by 14% (“only”) but if this is true, it has to be taken in the context of geographic access. Women with money from TX, FL, and other states that severely limit access to abortion may be able to travel to another state, but poor women, on whom the burden always falls the hardest, will find it much more difficult or impossible, as will teenagers, including those who are pregnant as a result of incestuous rape (see “Who gets abortions in America”, by Sanger-Katz, Miller and Bui, originally published in the NY Times Dec 21, 2021 and republished on May 3, 2022). Health and healthcare are already incredibly inequitable in the US, and this decision will make it much worse. Jill Filipovic, writing in Substack, provides a number of other concerning likely outcomes,  including that there will be a 21% increase in maternal mortality!

And if that were not enough – more than enough – to get your blood boiling,  get you out to the streets, the likelihood that this will end with abortion approaches zero. Many of the opponents of abortion rights also oppose other reproductive rights, including cheap and easy access to contraception and sex education in schools. This would be illogical if preventing abortions were truly their goal, as it is precisely access to these two factors that are universally associated with lower abortion rates – see ‘Scandinavia’. When abortions were illegal in countries such as Ireland, sex education and contraception were also severely restricted – and the abortion rate was higher than in say, Denmark. But the women receiving these abortions, illegally, were at much higher risk. These arguments, however, get little traction, since those who would restrict all reproductive rights are doing it for other reasons – maybe they hate sex, maybe they hate women, but they surely believe that they know better and freedom is not important to them. If this is hypocrisy – they will fight for the right to own and carry a gun or not wear a mask – hypocrisy is not important to them either.

And it will not end with reproductive rights and contraception. Certainly the rights of LGBT+ people will be even more infringed. And our rights to read books and have our children learn science and history. And our right to vote. Listen to the far-right carry on about restrictions on their freedoms, but think about the freedoms that are at the core of the US and on which we depend.

And most important, these are freedoms we can no longer can passively depend on. If you don’t fight for them, they won’t be there.

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