Roe v. Wade and the US Supreme Court
Fifty years ago, the US Supreme Court upheld a women’s right to choose between going to term and giving birth or exercising her rights to terminate her pregnancy. That was Roe v. Wade, a 7-2 decision. It was based on the right of privacy earlier articulated in Griswold v. Connecticut which upheld individual’s rights to buy and use contraceptives. Roe set the end of the second trimester as the point at which a woman could no longer terminate an unwanted pregnancy absent a medical condition that threatened the woman’s life or health. In a subsequent case of Planned Parenthood v. Casey, the Court said the proper constitutional standard was fetal viability when the fetus was able to survive on its own outside the woman’s womb.
In a 5-4 decision this week, the current Supreme Court declined to enjoin a Texas law that did two things, Whole Woman’s Health v. Jackson https://www.supremecourt.gov/opinions/20pdf/21a24_8759.pdf . Texas set the date for terminating a pregnancy at six weeks (fetal heartbeat) — a time when most women do not even know they are pregnant; there are no rape or incest exceptions. And Texas allowed virtually anyone, except government officials, to sue abortion providers and anyone who assists or abets them to provide this important medical procedure at any time after 6 weeks and to collect a judgement (bounty) of $10,000 per prohibited procedure. This case was on the so-called shadow docket of the Court where emergency cases are not briefed or argued before the Court, and the Court may not even issue a written opinion. In the past, these cases were typically death penalty appeals where the inmate’s execution was imminent. More recently this more conservative Supreme Court is using the shadow docket to block President Biden on a stay in tenant evictions or reversing his decision to reverse Trump’s stay in Mexico executive order, as it earlier used the shadow docket to enable some of the most egregious Trump orders such as the Muslim travel ban or prohibiting military service for transsexual citizens.
Texas’ ban on abortions after 6 weeks is now one of the most restrictive policies of any developed nation. https://www.cnn.com/2021/09/03/world/how-texas-abortion-law-compares-to-world-intl-cmd/index.html We have made great progress in advancing women’s rights since the 19th Century when under the rules of coverture married women had no rights and as a matter of law were totally subject to their husbands in every respect — their bodies, their property, their ability to contract, to be employed, to manage their own money. Women had no right to vote in federal elections until the passage of the 19th Amendment. It is tragic that Texas policy makers now seek to control women’s reproduction and dispossess women of this essential human right to decide when and with whom to procreate and raise a family.
The Court is scheduled to hear Dobbs v. Jackson Women’s Health Organization this fall. In this case, Mississippi set 15 weeks as the outer limit for getting an abortion. In Dobbs, the abortion procedure after 15 weeks is criminalized in the state of Mississippi. It is now assumed, based on the Texas decision, there are 5 votes in the US Supreme Court to overturn Roe v. Wade, and abortion in too many states will be relegated to back alleys.
What can and should we do? In the next election cycle, we need to remove from Governor’s offices, and from state and federal elected offices those GOP leaders who have brought us to this point. We will have to codify Roe v. Wade in federal statute; this requires 60 votes in the Senate or eliminating the filibuster. We should refuse to confirm any further judges to the federal and state courts who are not in full and unambiguous support of Roe v. Wade. For me at least, a woman’s right to choose under Roe is just as important as desegregated schools under Brown v Board of Education; this is not time to go backwards in our treatment of American women. We need to march, contribute, petition and persuade until we have protected the vital rights of choice for women who wish to safely terminate their pregnancy.
Prepared by: Lucien Wulsin
Dated: 9/3/21