On Wednesday, the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health, a case originating from Mississippi. The case seeks to undermine both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), the landmark decisions that ensure access to abortion and set firm limits on the viability of a fetus.
Four justices appeared to entertain the possibility of overturning Roe, including Justices Barrett and Kavanaugh, who both identified abortion rights as settled questions during their confirmation hearings. The arguments presented in Dobbs v. Jackson Women’s Health expose a continuing entrenchment of conservative moral values in the interpretation of constitutional law, not to mention an obsession with legislative control over the bodies of women and gender-nonconforming people.
Julie Rikelman of the Center for Reproductive Rights, who represented Jackson Women’s Health, argued that letting the Mississippi law stand would cause “profound damage to women’s liberty, equality, and the rule of law.”
Mississippi Solicitor General Scott G. Stewart, representing Thomas E. Dobbs, state health officer of the Mississippi Department of Health, made it clear in his opening remarks that his goal is to overturn both rulings. Stewart claims that Roe and Casey “have no basis in the Constitution,” that they “have no home in our history of traditions,” that they have “damaged the democratic process.” He even claims that they have “poisoned the law.”
U.S. Supreme Court [Wikimedia Commons]
In 2018, the state of Mississippi passed a law banning abortions after 15 weeks. The law conflicts with Casey, which determines viability of a fetus to be 23 or 24 weeks. (Casey itself modified Roe, which relied on measuring viability in terms of trimesters.) This constitutionality of this law is the basis of the Dobbs case now before the court.
Justice Sonya Sotomayor pressed Stewart on the assertions he made in his opening statement, especially where the Constitution was concerned:
Counsel, there’s so much that’s not in the Constitution, including the fact that we have the last word. Marbury vs. Madison. There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet, what the Court did was reason from the structure of the Constitution that that’s what was intended.
And, here, in Casey and in Roe, the Court said there is inherent in our structure that there are certain personal decisions that belong to individuals and the states can’t intrude on them. We’ve recognized them in terms of the religion parents will teach their children. We’ve recognized it in — in their ability to educate at home if they choose. They just have to educate them. We have recognized that sense of privacy in people’s choices about whether to use contraception or not. We’ve recognized it in their right to choose who they’re going to marry.
I fear none of those things are written in the Constitution. They have all, like Marbury vs. Madison, been discerned from the structure of the Constitution.
Why do we now say that somehow Roe versus Casey is — Roe and Casey are so unusual that they must be overturned?
If the Court upholds Mississippi’s 15-week ban, it will cause a cascade effect and may activate what is often referred to as “trigger laws” – laws that are unenforceable but may come into force if a law is overturned or a new precedent is set. The overturning of Roe would allow at least 20 states to immediately make most abortions illegal and only obtainable by traveling to another state.
Sadly, it is very likely that we will see a ruling in this case that either further limits access to abortion or bans it altogether. That this decision will be made primarily by men who have never and will never face the possibility of becoming pregnant should be a cause for defenestration. There is nothing so infuriating as reading and listening to comments by men about Supreme Court cases that concern women’s bodies.
That said, one woman on the bench, Justice Amy Coney Barrett, is likely to side with those men. During the proceedings, she suggested that the solution for unwanted pregnancies is to merely carry the pregnancy to term, and then put the child up for adoption – as if there would be no emotional fallout or no disruption to the pregnant individual’s career or life with this approach.
“Insofar as you and many of your amici focus on the ways in which forced parenting, forced motherhood, would hinder women’s access to the workplace and to equal opportunities, it’s also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy,” Barrett said. “Why don’t the safe haven laws take care of that problem? It seems to me that it focuses the burden much more narrowly.
“It seems to me,” she continued, “seen in that light, both Roe and Casey emphasize the burdens of parenting, and insofar as you and many of your amici focus on the ways in which forced parenting, forced motherhood, would hinder women’s access to the workplace and to equal opportunities, it’s also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy.”
Treating the outcome of an unwanted and forced pregnancy like the return of an unsatisfactory purchase, or perhaps like a case of regifting something received that is not useful or wanted, greatly minimizes the impact to the pregnant person, especially when we are talking about cases that involve assault, rape, and incest.
Rikelman also pointed out that in Mississippi it is 75 times more dangerous for a woman to give birth than it is to have pre-viability abortion, and that women of color were disproportionately impacted.
It is extremely difficult to hear a woman voicing opinions that would force someone to carry a pregnancy to term against their will. If Dobbs is upheld and Roe is overturned, this is the reality that people of reproductive ability will face.
Women and others who may become pregnant are not broodmares or mindless livestock. They should be able to make the choices about their own bodies that best serve them without judgment, no matter the circumstances. They certainly do not need someone who will never face the possibility of becoming pregnant moralizing and limiting their choices. Short of a doctor rendering clinical options that are based in science and medicine, the only opinion that should matter is that of the person deciding whether or not to continue a pregnancy.
Women who hold “pro-life” and “anti-abortion” beliefs need to understand that their rights end where another woman’s begins. Forcing ideology on others never seems to end well, because it opens the door for that force to be used in the other direction. Further, to impose the values of those who adhere to a strictly Christian ideology seems like a violation of faith, as well as of body, something every Pagan should recognize. If a person does not want an abortion, they should not have one – but they should not have the power to make that decision for anyone else.
Overturning Roe will be a tragedy for the rights of women and other people who can become pregnant, at least as they apply to abortion access. It will show that the entrenched conservative majority on the court will overturn policies that most Americans agree with. (More than 60% of Americans support the right to choose.) And it will also indicate peril for other rulings that have established equality in the United States.
Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan all seemed to note that overturning any aspect of Roe v. Wade and Casey undermines the importance of stare decisis, the legal process of determining issues based on precedence, not revoking decisions based on beliefs. If Dobbs leads to the reversal of Roe next year, it seems likely that there will be severe backlash, and perhaps lead to Dobbs itself being reversed in the future under a more liberal court.
The current situation feels something like the imposition of the 18th amendment’s prohibition on sales of alcohol – and we know how that ended up, just a few years later. History shows that it is harder to take away established rights than it is to enact new ones.
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