By Sage Lively | Hamilton College intern
Let’s talk about the impending overturning of Roe v Wade. I want to start by stating the obvious: this issue is not overblown. This will impact abortion rights, healthcare access, women’s rights, treatment of women in healthcare, gay marriage, Constitutional law, and the future of our nation.
On May 2nd 2022, a SCOTUS draft was leaked to Politico, written by Justice Samuel Alito, that the Supreme Court was intending to overturn the landmark case Roe v Wade, and return abortion rights to be a state by state issue. Should this decision come to fruition, which we have no reason to believe it will not be, 13 states will immediately ban or curtail abortions through ‘trigger laws.’
Alito explains his argument in a way characteristic of his writings—harsh, dismissive, and dripping in misogyny. Well, as much as one can drip when discussing Constitutional Law. Alito’s headline is as follows, “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
Alito decides to dismiss Roe’s argument that abortion falls under the right to privacy with little justification, and spends several dozen pages breaking down why it also fails to fall under the Fourteenth Amendment, as the Constitution, “makes no reference to abortion, and no such right is implicitly protected by any Constitutional provision.”
He goes on to argue, in an incredibly strained and inherently subjective test, that any right under the 14th Amendment must be instead “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
Now, you can argue that a person’s right to do with their body what they want is an implicit concept of American liberty, an argument I stand by, but perhaps anticipating this, Alito states that since ‘liberty’ is subjective, we must focus on the historical and traditional precedence.
Regarding historical precedence, I will present one simple fact—women have been having abortions in America since it was founded, and will continue to regardless of any ruling. It is an indisputable part of our history. In fact, Alito helpfully provides evidence of abortions before the Revolutionary War, complete with differentiations depending on when the fetus was aborted, and the different punishments attached depending on the context (ranging from none to jail time). Before you ask, yes, Alito is referencing Blackstone and Hale, men who supported marital rape and called for witches to burn—these are the legal theorists Alito asks us to follow.
Which leads me to my second point— yes, abortion (depending on the circumstance, a convenient fact Alito decides to ignore), was historically illegal. This carries the burden of Alito’s argument—he states that the criminalization of abortion is deeply rooted in our history and traditions. You know, like slavery? Or, let’s say, criminalizing queer and interracial marriage. Genocide. America has had a rich and full history, and if Alito gets his way, we will ignore our core value of independence and liberty for all and instead turn to our ‘traditions and histories’ – no matter how ugly.
Alito’s argument is morally, but more importantly in this circumstance, Constitutionally wrong, but things like facts and precedence won’t stop this decision. So let’s discuss what will happen after Roe v Wade is overturned.
Abortions will not decrease. One simple fact the pro-life movement chooses to ignore is that abortions are a necessary medical procedure, and criminalizing them will only mean that they will be done illegally and dangerously, risking more lives.
What will decrease are birthing people’s access to safe abortions and birth control methods (the very thing that could help prevent abortions). Once the Constitutional basis behind Roe v Wade is overturned, it will leave any other decision based on the Fourteenth Amendment and the Right to Privacy with a target on its back. That includes a long list, but the first on the chopping block will be gay marriage.
Precedence (stare decisis) is a fundamental pillar of the Supreme Court. Every case that was built on Roe v Wade and every case it cited or shared a basis with will now be in question. Casey v Planned Parenthood was heavily built on Roe v Wade, as well as the precedence set by Loving v Virginia, the landmark interracial marriage ruling. The Right to Privacy was also the basis to obtaining contraceptives, and the Due Process Clause of the Fourteenth Amendment protects gay marriage, under the very same title of ‘liberty’ that Alito now demolishes.
Alito claims abortion and gay marriage are fundementally different issues, as abortion rights concern ‘un-born human beings’—a debatable term in itself for a clump of cells—and one that reveals the religious bias inherant in the entire draft. Constitutionally this logic does not hold, nor do I believe Alito wants it to. Alito voted against gay marriage as recently as 2015, and according to Jonathan F. Mitchell, the architect of Texas’ six-week ban, Loving v Virginia may have safe haven under the Civil Rights Act, but “The news is not as good for those who hope to preserve the court-invented rights to homosexual behavior and same-sex marriage.” (CNN).
The overturning of Roe v Wade does not stop with abortions. Letting states control birthing people’s bodies, forcing them to carry a pregnancy that is non-consensual, physically dangerous for parent or child, or just plain unwanted, is disgusting and scary and a flagrant abuse of our Constitution and rights as citizens. That is bad enough. But next will be our rights to contraceptives. To gay marriage. Anything else they can get their hands on once precedence is thrown out in favor of Republican ‘morality.’
I have written for this paper several times, on issues I am passionate about, but never like this. I want every reader to walk away knowing, and feeling, that this is a personal issue. For me, for you, for everyone that you know. This is my right to control my own body, to marry freely. This is your right to safe healthcare. This is every woman and birthing person’s life at stake. Below are links to several resources for contraceptive needs as well as safe abortion tactics. I would like to end with this simple sentiment; I am scared and you should be too.
Resources: The Future of Abortion in a Post Roe America, Self Managed Abortion; Safe and Supported, Planned Parenthood. (https://abortionpillinfo.org).