Can a woman have an abortion without interference from the government? Regardless of your beliefs of what constitutes life, should the government be able to tell women that they must continue in pregnancy if they do not want to? If so, why? In the 1st draft of Dobbs vs Jackson Women’s Health Organization, Justice Alito writes, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” Does the Constitution allow for the government to interfere in medical matters that aren’t a public health concern? Justice Alito further writes that, “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.” What are those damaging consequences? He never bothers to list them, so we’ll never know.
The opinion states that the Court must, “examine whether the right at issue in this case is rooted in our Nation’s history and tradition and whether it is an essential component of what we have described as ‘ordered liberty’.” The problem is our country doesn’t have a long history of respecting women’s bodily autonomy or citizenship, so is it any surprise that an exclusively female issue has had one dimensional representation in our history? Were women allowed to write medical opinions or try cases in 1732 and 1602 (the years when the court cases -that Alito quotes from- took place)? How could something be a part of our Nation’s history and tradition when true deliberation on the matter excluded 50% of the population? What legal voice did women have in 18th century America? Was it equal to men? While disappointing, it would be no surprise if the court were to overturn Roe v. Wade, as our country’s courts have had a long tradition of discrimination on the basis of sex.
In another Supreme Court case, Union Pacific Railway Co. v. Botsford (1891), Justice Gray writes, ‘No right is held more sacred or is more carefully guarded by the common law than the right of every individual to the possession and control of his own person…’. He goes on to quote Judge Cooley: ‘The right to one’s person may be said to be a right of complete immunity; to be let alone.‘ What I think Justice Alito and those in agreement with him miss is that abortion is not a public conversation, it’s a private one. No government should be able to tell anyone what they must do with their bodies. And to take the point further, no government should be able to make someone take on risk without their consent. Some of the so called anti-abortion laws limit the time to obtain an abortion to six weeks, others don’t allow it in the case of rape/incest. What the court doesn’t acknowledge is the risk of pregnancy.
I was 20 weeks pregnant. I had a short cervix and, according to my doctors, was showing signs that I wasn’t going to make it to full term. This was my first pregnancy. I was 32. He explained to me that I could get an abortion and try again or I can wait it out. If I waited it out and the baby was delivered prematurely, the health risks would be immense for the newborn and there was a chance the child or I or both of us wouldn’t survive. I had a preexisting condition of large fibroids which made the situation worse. The bleeding from the fibroids could cause me to lose too much blood. If my home state had strict abortion laws on the books, the choice of whether to continue the pregnancy or not would not be mine to make.
The Supreme Court has a responsibility to protect choice, not because of precedent, but because the State does not have the authority to determine the risk that a woman must take if she becomes pregnant. It shouldn’t just be matters of life and death. It could be matters of future fertility, physical health, or mental capacity. Problems can arise at any time during pregnancy, not just before six or fifteen weeks.
The Court has a responsibility to start a new tradition in American history. One that respects women’s bodily autonomy. In our past, where you lived determined much of the freedom you could enjoy as a woman. We need to make a decision to end that tradition now.
updated 8/5/2022
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