Thoughts on Dobbs v. Jackson Women’s Health,
the draft Supreme Court decision over-ruling Roe v. Wade
https://www.politico.com/news/2022/05/02/read-justice-alito-initial-abortion-opinion-overturn-roe-v-wade-pdf-00029504
At the very center of human existence is a woman’s decision to procreate, to bear a child, to go through childbirth, to risk her life and health to give birth, to raise and nurture, defend and protect a child, to create a family (however it is configured) for as long as she shall live. The Supreme Court appears prepared to decide that state governments can interfere in this most personal of decisions and tell a woman whether she can make her own reproductive and procreative choices and decisions or whether government will make them for her.
This should not come as a surprise. The three ultra-conservative justices appointed by Donald Trump and facilitated by Mitch McConnell are paired with the two far right justices, Clarence Thomas and Samuel Alito. This is an Alito draft opinion from early February 2022, and the final decision will likely be issued in June; the result will almost certainly be the same, but the legal rhetoric will likely be different by then. It should be noted that in their confirmation hearings before the United States Senate, each of the recently appointed justices in the Dobbs majority stated that they considered Roe v. Wade well-settled law, yet they have rushed to repeal it at the first opportunity that presented itself. The stench of American jurists lying to Congress in order to get a lifetime appointment to repeal a long-settled precedent with which they may in the secret recesses of their minds have disagreed will not be readily or easily forgotten; it will be a blot on their reputations and that of the Court on which they sit.
Assuming these five justices repeal the protections of Roe v. Wade, states will now have an option to deny pregnant women and their families their liberty, autonomy, and fundamental rights to choose whether to continue or terminate an unwanted and unintended pregnancy. Pregnant women in about half the states will be immediately impacted. https://www.nbcnews.com/data-graphics/map-23-states-ban-abortion-post-roe-america-rcna27081 The Guttmacher Institute has a slightly different map of 26 states to be impacted. https://time.com/6173196/abortion-trigger-laws-bans-roe-v-wade/ In her recent interview on PBS, the Arkansas Attorney General indicated her state’s intent to prosecute pregnant women who go to other states for an abortion or who use a mail order morning after pill. https://www.pbs.org/newshour/show/arkansas-trigger-law-would-allow-near-total-abortion-ban-if-roe-v-wade-is-overturned Louisiana legislators have introduced a bill which has now passed its first committee to classify abortion as homicide. https://www.reuters.com/world/us/louisiana-legislators-advance-bill-classifying-abortion-homicide-2022-05-05/
In states like California, Vermont, New York and Massachusetts and many others, the political leaders, public sentiment, and judicial decisions currently assure a woman and her family’s reproductive rights. https://www.washingtonpost.com/politics/2022/05/03/most-americans-say-supreme-court-should-uphold-roe-post-abc-poll-finds/ and https://www.pewresearch.org/politics/2019/08/29/u-s-public-continues-to-favor-legal-abortion-oppose-overturning-roe-v-wade/ Public opinion is highly variable by state; voting citizens in states in the Deep South Bible Belt are for the most part opposed to Roe v. Wade. https://www.nytimes.com/2022/05/04/upshot/polling-abortion-states.html States like Oklahoma and Missouri, with trigger laws to enact abortion bans in the event that Roe is overturned, will have to face pro-choice majorities at odds with the state policy maker’s decisions. https://www.nytimes.com/2022/05/04/upshot/polling-abortion-states.html
Removing Roe’s constitutional protections of women’s fundamental reproductive liberty rights shifts the debate to state and national politicians. Indiana might ban abortions while Illinois could continue to permit them. Are we prepared to try to criminally convict an Illinois doctor who treats an Indiana patient for an abortion service? How will this impact our well-settled right to travel among the states? Can an Arkansas prosecutor charge an Arkansas resident for traveling to receive an abortion that was fully legal in California?
And it will open the door for a renewed debate in Congress. The current Democratic President, and slim majorities in the Senate and House will seek to pass legislation protecting a woman’s right to choose. They will be stymied by the 60-vote filibuster requirement. A future GOP Congress and President may seek to ban all abortions nationwide. They may have far fewer scruples about adhering to the Senate’s 60 vote filibuster requirement.
I was baptized, confirmed, and educated as a regular, church-going Catholic back in the 50’s. So I remember the good old days. We were told that pre-marital sex was a serious sin for which we could burn in hell or be consigned to limbo. We were educated to abjure sex in thought, word, and deed until we were married. I can remember at one point as a young boy this gave me fears about my fate in the hereafter due to my kissing sessions with the terrific girl next door.
We grew up in a wonderful Catholic neighborhood where the Catholic families had lots of children; one had 12; one had 11; we were only 4. We all helped populate impromptu, neighborhood baseball games all summer long. It was such a great community to grow up in. My mom was one of eight and my dad was one of seven and I have over 50 first cousins, some of whom I have never met. I relish these big family connections. However, there is a time for big families, such as after a devastating war when many of the young men (typically) and civilians died in terrible battles and/or in a place like an underpopulated nation. This is not the US today with its population of 330 million. And as a globe, we humans are overpopulating our planet with the incipient dangers of potentially irreversible climate change and widespread extinction of many species of life.
Under the Roman Catholic Churches’ teachings as we learned them in parochial school and religion classes, the use of contraception was considered a sin, and the only acceptable method of birth control for a devout Catholic was the rhythm method. https://sacredheartwinchester.org/catholic-beliefs-about-contraception/ This was not the teaching of many Protestant churches, nor of the Jewish or Islamic faiths, nor of most practicing Catholics, but some right-wing evangelical Christians are now coming to embrace that position as well. https://www.vox.com/identities/2017/10/7/16259952/birth-control-evangelical-agenda We were not taught to impose our church’s views on others, but to instead respect their different religious views and practices; we were taught religious tolerance for those who practice other faiths or no faith at all, and we expected religious tolerance from the then dominant adherents of Protestantism in our community. Our religion, its beliefs and practices was a private choice, not to be imposed on others of differing faiths. It was a God of love and compassion for all our neighbors, for all humanity.
There is a very wide variance of religious beliefs on abortion in America, and many religious people do not endorse or embrace the tenets of their religious leaders. https://religionnews.com/2022/05/06/survey-white-evangelicals-oppose-abortion-other-religious-groups-support-it/ In general, majorities of Catholics, white (non-evangelical) protestants, black protestants, Jews, Muslims and those with no religious affiliation disagree with the majority views of white evangelicals on abortion.
I first became aware of some of the many issues surrounding abortion during the furor over Sherri Finkbine’s seeking an abortion in Sweden because her fetus had been exposed to Thalidomide, and she could not get an abortion in the US. https://en.wikipedia.org/wiki/Sherri_Chessen This was the first open discussion of a woman’s right to choose an abortion that I recall.
In the 60’s, the fear of an unwanted and unintended pregnancy was omni-present for those who were sexually active, as contraception was not readily available, and it often did not work as well as intended. Abortion was illegal, hard to access, and dangerous at the time. There was no sex education in schools. Unwed mothers were shunned and shamed. It was a blot on the girl and her family while there were few repercussions for the guy.
In 1965, the Supreme Court decided in Griswold v. Connecticut 381 US 489 that the US Constitution protected the rights of married couples to purchase and use contraception. It based its decision on the right of privacy between a couple and their physician; it found the right of marital privacy derived from the 1st, 4th, 5th, 9th, and 14th Amendments. Justice Douglas wrote; “We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
· The 1st amendment protects our freedom of religious practice, expression, association, thought and the press from government intrusion. It protects the marvelous diversity of our religious practices and beliefs, and it bars the state establishment of a single religion.
· The 4th amendment protects people’s security and sanctity in their person and in their homes from governmental intrusion without a criminal warrant properly issued for probable cause of a criminal act.
· The 5th amendment protects us from loss of our life, our liberty or our property without due process of law, and guarantees our rights not to be forced to testify against ourselves in criminal proceedings. The Due Process clause has both substantive and procedural aspects, which means for example that legislation must be rationally related and properly tailored to a permissible government purpose, and there must be notice and opportunity for a hearing before an impartial decision maker.
· The 9th amendment assures that, we retain all our rights and protections as citizens not otherwise enumerated in the Constitution. These include such well-established but not enumerated Constitutional rights such as the individual right to travel, our right to vote, and our right of personal privacy from improper government intrusion. https://constitution.congress.gov/browse/essay/amdt9_2_1/
· The 14th amendment assures all Americans the protections of due process, the equal protection of the laws, and our privileges and immunities from state interference or state action (as distinct from the 5th amendment which applies to federal government actions). Under Constitutional equal protection analysis, gender-based discrimination is treated with special heightened scrutiny; it must serve an important governmental purpose and being narrowly tailored to achieving that purpose. https://constitution.findlaw.com/amendment14/annotation06.html
In Eisenstadt v. Baird, 405 US 438 (1972), the Supreme Court protected the rights of unmarried individuals and couples’ access to contraception. The Court relied on the Equal Protection clause of the 14th Amendment in holding that there could be no disparate treatment between married and unmarried couples’ access to contraceptive services. "It is true that in Griswold the right of privacy in question inhered in the marital relationship. . . . If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." The development of the birth control pill had by then revolutionized contraception. https://journalofethics.ama-assn.org/article/history-oral-contraception/2000-06 It certainly contributed to a change in public attitudes towards sex, that now goes under the name of the “sexual revolution”. That may have been more of a healthy attitudinal shift about sex rather than a change in actual sexual conduct and behavior. https://time.com/3611781/sexual-revolution-revisited/
One year later in Roe v Wade, 410 US 113 (1973), the Supreme Court extended its protection of reproductive rights to a woman’s decision to seek an abortion during the first two trimesters of her pregnancy. That has been good law and settled law for the last 50 years, guaranteeing families their personal autonomy and reproductive rights free from interference by government. Roe v. Wade was the meeting of many separate currents of thought – the women’s movement, planned parenthood, and personal autonomy free from government control. To my mind, it was also about family values, how many children do you want and when do you want to have them, since birth control techniques were only partially reliable; others will disagree. At any rate, it generated a backlash, first channeled, and orchestrated through the hierarchy of the Catholic Church and then later joined in by conservative evangelicals seeking to create a new political movement.
In 1976 Congress passed the Hyde Amendment which restricted federal Medicaid funding for abortions to situations where the mother’s life was endangered. In Harris v. McRae, 448 US 297 (1980), and Williams v. Zbaraz 448 US 358 (1980), the Supreme Court on a 5-4 vote upheld the Hyde Amendment. It said that that the indigency of the plaintiffs is not a suspect classification requiring special scrutiny of government’s actions, and therefore the Equal Protection Clause in the 14th Amendment did not require government to pay for publicly funded abortions. I co-authored an amicus brief on the obligation of state Medicaid programs to fund medically necessary reproductive care in the Zbaraz case; needless to say our arguments were not accepted by the court’s majority. Versions of the Hyde Amendment have continued in enacted federal budgets to this day.
Who uses abortion services in the US? 60% are in their 20’s and 25% in their 30’s, 60% already have a child or children, 60% are religiously affiliated, and 40% are white. https://www.guttmacher.org/united-states/abortion/demographics 75% are low income (below 200% of FPL), and only 4% are minors. Over half paid for their care out of pocket, and less than a quarter relied on Medicaid (due to the Hyde Amendment). In terms of religious affiliation, 24% were Catholic, 17% were mainline protestants, 13% were evangelicals, and 38% had no religious affiliation. Ninety-one percent had graduated from high school and 20% from college. https://www.guttmacher.org/report/characteristics-us-abortion-patients-2014 Just less than half were living with their partners at the time of their abortion. The use of a morning after pill is becoming increasingly widespread. https://www.medicalnewstoday.com/articles/plan-b#what-is-plan-b and https://www.guttmacher.org/fact-sheet/use-emergency-contraception-united-states It is unclear how a state of Texas or Arkansas would be able to even reach and impact women using the morning after bill.
California is among the 16 states that pay for all medically necessary abortions, despite the lack of federal Medicaid matching funds. https://www.guttmacher.org/state-policy/explore/state-funding-abortion-under-medicaid The federal budget proposed by President Biden for 2022 excludes the restrictive language of the Hyde Amendment – the very first time since 1976.
When I worked in the California state legislature in the 1980’s and 1990’s there was an annual pitched battle during budget deliberations, as the opponents of a family’s reproductive rights sought unsuccessfully to adopt and apply a state version of the Hyde Amendment to Medicaid funding of abortions in California. These proponents of the “rights of the unborn child” were conspicuous by their absence or adamant in their opposition when we sought to enact legislation and assure funding to provide prenatal care for pregnant women, childcare, health care for children, health care for parents, family income supports and all other essential family supportive services for low and moderate income families. In other words, it could be easily inferred by their actions on the legislative front that these lobbyists/advocates and their clients cared very deeply about “unborn children” while in the womb, but not one whit about their well-being after their birth, or at least that was what I thought at the time.
In Lawrence v. Texas, 539 US 538 (2003) the Supreme Court invalidated state sodomy statutes criminally prohibiting homosexual sexual relations under the same right of privacy reasoning and same line of cases and authorities as Roe, Baird and Griswold. Justice Kennedy wrote “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.”
In Obergfell v. Hodges 576 US 644 (2015), upholding the rights of gay couples to marry under the Constitutional rubric of the individual’s rights of privacy, Justice Kennedy writing for the Court said “A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12; see also Zablocki, supra, at 384 (observing Loving held “the right to marry is of fundamental importance for all individuals”). Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make.
“Marriage… has long been “‘a great public institution, giving character to our whole civil polity.’” … This idea has been reiterated even as the institution has evolved in substantial ways over time, superseding rules related to parental consent, gender, and race once thought by many to be essential. See generally N. Cott, Public Vows. Marriage remains a building block of our national community. … For that reason, just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union. … States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision-making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules.”
At the time of our Founding Father’s adoption of the United States Constitution, married women were considered under common law the chattel property of their husbands, and unmarried women, who could own and hold property, had no right to vote or hold political office. https://ap.gilderlehrman.org/essay/legal-status-women-1776–1830
The correspondence between John and Abigail Adams on women’s rights is telling as to the esteem that our enlightened founders had for the rights of women back in 1776. https://allthingsliberty.com/2020/08/how-did-john-adams-respond-to-abigails-remember-the-ladies/ She wrote “And by the way in the new code of laws which I suppose it will be necessary for you to make, I desire you would remember the ladies, and be more generous and favorable to them than your ancestors.” He replied “we know better than to repeal our masculine systems. Although they are in full force, you know they are little more than theory.”
Women, after a long and often uphill struggle, finally won the right to vote by constitutional amendment in 1919. Only over the last 50-60 years have many institutional barriers and enacted obstacles to women’s advancement been repealed and replaced. That the Supreme Court would seek to divine the attitudes of the Constitution’s drafters in 1787 about a family’s modern reproductive rights in seeking to repeal and reverse one of the most significant advances for pregnant women and families over the last 50 years is simply too ludicrous to conceive, but sadly and unfortunately likely to become true.
We have yet in this nation to provide universal health care, universal childcare, paid maternity leave, universal income child tax credits, and many of the other woman, child and family support services that are so urgently needed, yet the Supreme Court’s majority seeks to divest one of the most important women and family rights gained over the past 50 years. The proposed decision in Dobbs in my view impales the rights of women, of families, of the religious and non-religious alike on the political priorities of an intolerant and adamantine, but highly effective minority of American voters and political leaders. It caters to the very politicians and other leaders who have done so much to block meaningful progress for American women and their families in their states and across the nation, and it now endangers a broad swath of fundamental rights to personal liberty enjoyed by every American.
In Latin America, reproductive rights for women and families are expanding while they are being constricted in half of our own states in the USA. https://www.kpcc.org/2022-05-09/in-latin-america-abortion-access-is-expanding-why-is-the-u-s-moving-in-the-opposite-direction Likewise, Ireland has been moving in the opposite direction than the US; it amended its constitution by popular referendum in order to do so. https://www.pbs.org/newshour/health/what-irelands-history-with-abortion-might-teach-us-about-a-post-roe-america