A major news story broke Monday night. It is not something I would usually talk about on my blog, but the seriousness of the issue is frightening to me for many reasons. The online news media site, Politico, obtained what it calls a draft of a majority opinion written by Justice Samuel Alito that would strike down Roe v. Wade. For those of you who may not be in the United States or may not know what the 1973 Supreme Court case is about, Roe v. Wadewas a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction. What Politico released is only a draft. The final opinion has not been released, and votes and language can change before opinions are formally released. The opinion in this case is not expected to be published until late June. However, Republicans have been pushing to pack the Court with conservative justices who want to overturn Roe v. Wade for many years, and they finally succeeded under the twice-impeached, previous loser president.
Prior to the Senate confirmation of the very conservative and young Amy Coney Barrett to the Supreme Court, Chief Justice John Roberts had served as a swing vote and attempted to balance the Court between liberal and conservative justices. If this draft is accurate, Roberts voted against overturning Roe v. Wade. Overturning it would be unprecedented (as far as I am aware) in that it would be the first Supreme Court case to overturn a major precedent that granted rights. Most, if not all, overturned decisions have been done so to correct cases where the Supreme Court took away rights, such as Brown v. Board of Education (1954). Brownended racial segregation in schools and overturned Plessy v. Ferguson (1896) in which the Court had ruled that racial segregation laws did not violate the U.S. Constitution if the facilities for each race were equal in quality, a doctrine that came to be known as “separate but equal.” Other examples exist, but this is by far the most famous. However, with some recent decisions by the Supreme Court, Brown v. Board of Education is slowly being chipped away. The same is happening regarding the constitutionality of key provisions of the Voting Rights Act of 1965. But I am going down a rabbit hole. The fact is, the Supreme Court for the past seven decades has expanded rights of individuals not taken them away. This is beginning to change under the new make-up of the Court. Overturning Roe v. Wade may be the most dramatic of what may become a series of setbacks for civil rights.
I am not going to debate the rights and wrongs of abortions, but I am going to give a little history lesson on abortions for those who think that abortions have always been illegal in America. (Here, I am speaking of the Americas, including colonial times, not just the United States.) In colonial America, abortion was dealt with in a manner according to English common law. Abortion was typically only frowned upon if anyone even thought of it at all. If abortion was penalized, it occurred after “quickening,”—when a woman felt fetal movement—because it suggested that the fetus had manifested into its separate being. Quickening could vary from woman to woman, and sometimes went as late as four months. And, it was only penalized when it was typically seen as a cover-up for improper sexual relations. Also, abortions were much more common than believed and usually performed by midwives, not doctors. (Midwives were always much safer than doctors for pregnant women.)
States did not begin to draft abortion legislation until the first half of the 19th century; by 1880, every state had an abortion statute. These abortion statutes were not passed because of a belief that the fetus was a living being. Children were not seen as fully humans until they reached adulthood. Most of these early abortion statutes were designed to protect women from medical quacks far from the established centers of American medicine—Philadelphia, New York, and Boston, for example. These early statutes (for the most part) punished only the provider of the abortion, not the woman, and either did not apply to physicians or did not apply if the abortion was necessary to preserve the life of the woman.
Not until late 19th century did Americans—writers, journalists, preachers, and physicians—began to describe abortion with moral absolutism that had never existed before. In the late 19th century, targeting abortions and abortion providers—like midwives and “irregulars”—occurred within the context of the professionalization of the medical field. Doctors attempted to legitimize themselves as professional medical men, and they did so at others’ expense largely because women knew having your baby delivered by a midwife was much safer. (Midwives sterilized their hands and equipment, whereas male doctors, and nearly all doctors were male, did not believe in sterilization and did not understand germ theory.) In claiming that pregnancy and childbirth were not natural events, where women and midwives could maintain authority, they argued that pregnancy and childbirth were medical conditions requiring physician intervention.
Abortions were dangerous in the early 20th century, but by the 1920s and 1930s, sterilization of equipment, specialization, and, later, antibiotics, all worked together to decrease mortality. But the laws and the changed view of the morality of abortions had made getting an abortion from anyone, even doctors, illegal. By the 1970s, illegal back-alley abortions were again very dangerous affairs, so when the case of Roe v. Wade came before the courts in 1973, some states were already moving toward allowing abortions so they could be legally and safely obtained.
That was a lot to read, and I hope you are still with me. I mention all this because of a flaw in Justice Samuel Alito’s draft opinion overturning Roe v. Wade. The conservative justice attached to his draft a 31-page appendix listing laws passed to criminalize abortion during that period. Alito claims “an unbroken tradition of prohibiting abortion on pain of criminal punishment…from the earliest days of the common law until 1973.” This is just not true. It is not until the 19th century, 300 years after the first English settlement establishing common law in the Americas, that abortions started to become illegal, and only then to protect a women’s health. Abortions are much safer now, which makes citing those laws illegitimate.
What worries me is if the Supreme Court begins overturning precedents that established rights for certain groups of people, especially those despised by Republicans, what is going to be next? Alito’s draft misleadingly argues that rights protected by the Constitution but not explicitly mentioned in it—so-called unenumerated rights—must be strongly rooted in U.S. history and tradition. That form of analysis seems at odds with several of the Court’s recent decisions, including many of its rulings backing gay rights. Liberal justices seem likely to take issue with Alito’s assertion in the draft opinion that overturning Roe would not jeopardize other rights the courts have grounded in privacy such as the right to contraception, to engage in private consensual sexual activity, and to marry someone of the same sex.
Alito explicitly denies that the Court will overturn any other precedents when he says in the opinion, “We emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” However, how can we believe him? Conservatives in the United States have increasingly made lying a part of their everyday life. Just look at the claims of voter fraud in the 2020 election. The only voter fraud that has been found was committed by Republicans and did not change the outcome of the election to re-elect their twice-impeached loser candidate. They also have consistently denied there was an insurrection at the Capitol on January 6, 2021, aimed at stopping the certification of Joe Biden’s presidency. Therefore, I cannot feel safe that Obergefell v. Hodges which granted the right for same-sex couples to marry or Lawrence v. Texas which struck down sodomy laws in the U.S. are not next on the Supreme Court’s chopping block.
I fear with a conservative majority on the Supreme Court and the fascist leanings of the current Republican Party which remains loyal to a lying, idiotic, twice-impeached, orange menace, we are looking at even darker days in the future of the United States and the world. Conservative backlash is not limited to the United States. Authoritarianism is on the rise, and it is not being kept in check by democratic institutions. I encourage all Americans, and people who read this blog in other parts of the world, to back liberal candidates who believe in fundamental human rights and decency. If the Democratic majority in Congress is lost, we are looking at a minimum of two years of intense gridlock; if Republicans win in 2024, we are looking at a wholesale rollback on human rights. Democrats not only need to retain a majority in Congress, but need to gain a filibuster-proof majority in the Senate. We must fight, and we must vote for candidates who will protect our rights. If we don’t, we are surely doomed to lose many of our civil rights as U.S. citizens. Backlash against LGBTQ+ rights are already infiltrating even liberal and LGBTQ+-friendly states like Vermont. In the last few weeks, a trans woman was murdered in a hate crime in Vermont, someone vandalized the offices of the Pride Center of Vermont, and a pride flag was stolen from a flagpole at Northern Vermont University in Lyndon, Vermont. Since I moved to Vermont, I have rarely faced any type of hate or discrimination, but hate is on the rise everywhere.
With all of this said, I must admit, I also find it disturbing that this draft opinion was leaked to the press. I’m glad it was, but I still find it disturbing. The Supreme Court remains one of Washington’s most secretive institutions, priding itself on protecting the confidentiality of its internal deliberations. It is one of the hallmarks of the Supreme Court which allows for deliberation of cases before the Court to happen without intense media scrutiny. Ruth Bader Ginsburg was fond of saying, “At the Supreme Court, those who know don’t talk, and those who talk don’t know.”
And a final word that I couldn’t have said better myself to anyone who wants to make one of the stupid, hateful, and misleading arguments made by Republicans: