Question: The leak of a draft Supreme Court opinion that would overturn Roe vs. Wade, a 50-year-old precedent, has opened up the potential for states to enact a torrent of laws restricting abortion.
Some of the proposed state laws do not make exceptions for rape or incest. There has been talk of charging any medical professional who performed an abortion with homicide. Texas has already enacted a law permitting citizens to file a civil suit against any medical professional who performs an abortion, even if the plaintiff has no personal interest in the pregnancy.
In one state, there has been talk of making a fetus a state resident at the time of conception. The idea is that if a woman conceives a child in the state, and then goes to a different state and has an abortion, the state where the child was conceived can file charges and seek to extradite the mother.
What are the implications of abandoning Roe vs. Wade as the national standard for access to abortion? What legal checks are there to prevent states from intruding into private activities such as communication and travel when a woman seeks counsel or is determined to terminate an unwanted pregnancy?
Alison:
I think there are a couple of important issues to discuss regarding this week’s revelations on the Politico’s story of the Supreme Court’s draft. The leak itself is an indication that the court’s mask of political impartiality has been ripped away; possibly from the political right to push a wavering justice to support Justice Alito’s majority opinion, or alternatively, from the left to prompt the expected outcry that might persuade one or more justices to pull back. In either case, Chief Justice Roberts is furious and has ordered the marshal of the court to investigate.
If this draft reflects the final order of the court, it will return the power to determine abortion law to the states. The outcome will be that conservative states will pass laws to punish women for having abortions for any reason.
Liberal states will provide abortions, and women who can afford to travel to get them will continue to do so. Poor women who are the least able to support a child will be punished, even if their reasons for seeking abortions are rape, incest, or severe fetal malformation or a threat to their own lives. Even women who are suffering miscarriages may not be able to get medical help.
The sad fact is that in the United States we provide no safety net for people who lack family support. In countries where there are more opportunities for education, job training, affordable housing and help with food and other necessities, as well as medical services, women are less likely to need abortions because they’re less desperate. If we really want to lower the number of abortions, we should help poor women, not throw them in jail.
Steve:
There is not a more heart-rending subject than abortion. Nor is there an issue where the proponents and opponent’s opinions more deeply entrenched. Caught right in the middle is the Supreme Court trying to balance the constitutional ramifications and the morality of this gut-wrenching issue.
When Roe v. Wade was decided in 1973, justices of the Burger court tried to create a constitutional right out of whole-cloth without regard to what the Constitution actually says. Had they acted correctly, the issue would have been decided legislatively rather than by fiat of the courts. The current Supreme Court appears to be on the verge of undoing the mistake of the Burger Court.
Abortion is not mentioned a single time in language of the Constitution. The Tenth Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
In the absence of specific abortion rights legislation, the Supreme Court has neither the right nor authority to create nor enforce abortion law by simple fiat.
The example of women’s right to vote provides us with the perfect template of how to handle abortion, which is by constitutional amendment, not extra-constitutional judicial fiat.
The fact that for more than fifty years, the federal government has usurped the authority of the several states in this matter does not convey a “de facto” right that is outside the specific language of the Constitution.
It’s time to put the matter where it always belonged, and that’s before state legislatures and the federal Congress rather than having the courts legislate by creating a new right not anticipated by the Constitution.
Alison:
Steve, this is the crux of our differences: you see the point of government is to adhere to the Constitution, a 235-year-old document. I see the government as an institution created to benefit the US citizens—not necessarily to coddle them—but to encourage them to better themselves.
Are you aware that under Clinton’s and Obama’s administrations, abortion declined about 30%, whereas under the Bushes and Reagan, it declined about 2-3%? When poor women have even a little bit of assistance, such as the grants for education that were available from the federal government, or medical coverage for effective birth control, they rise. Abortion is a societal ill caused by poverty and despair.
The rationale that Justice Alito uses, that the reason the court intends to reverse Roe v Wade is that the Constitution offers no mention or support for abortion or for a woman’s right to privacy (which Roe used to justify her right to choose) is absurd. Women were not even considered persons when the constitution was written—they were property. They had no rights at all: not to vote, not to own their own purses, not even to object to abuse.
To justify rolling back the rights of women to make their own decisions now because they could not do so under the Constitution is blatant and intentional blindness. To cite the meanness, unfairness and cruelty of the past toward women to rationalize continuing to restrict their rights now is unreasonable.
As I’ve said before, I don’t approve of abortion; what I do approve of is a reasonable safety net for unfortunate members of our society. The Constitution didn’t necessarily provide that either—but that does not mean that our government ought not to do so now.
Steve:
If I’m understanding you correctly, you see the Constitution as a blackboard that can be easily erased and amended to suit the political vicissitudes of the day. I see it more as a granite slate to be amended rarely and with difficulty.
Like you, my heart breaks at the plight of so many indigent single mothers who struggle to buy baby food and diapers and pay for daycare. But our country has many programs to help ease their burden, ranging from Medicaid, to welfare, to CHIP, to free school lunches, and more.
In my mind, abortion is homicide. It involves the death of a human being…every time. In this discussion of rights, who speaks for the rights of the innocent third-party— the baby?
I think there should be exceptions made for abortion in cases of rape, incest and actual threat to the life of the mother, but I also believe that human life begins at conception, with all its inherent rights, including the right to live.
Abortion should never be used as an alternative form of birth control. Nearly always the mother made the voluntary choice that created the life inside her, regardless of her economic circumstances. Shouldn’t she have a legal duty to protect and preserve that life? For me, the answer is an unequivocable “Yes!” I also believe that absent the three exceptions, no medical professional should be allowed to terminate a baby’s life.
If Roe is overturned, it will simply kick the discussion back to where it should have been all along: to the legislatures of the various states and to Capitol Hill, where the Constitution could be amended to include abortion rights if that is the will of the people expressed through their elected legislative representatives.