“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”
This remarkable statement from Associate Justice Sonia Sotomayor seemed to fall on the deaf ears of her conservative colleagues during Wednesday’s oral arguments in Dobbs v. Jackson Woman’s Health Organization.
This case deals with a Mississippi law that prohibits abortion after 15 weeks of pregnancy. The Jackson clinic sued, claiming that the law is unconstitutional under the prevailing standard set in 1973’s landmark Roe v. Wade ruling, which affirmed women’s right to choose; and the 1992 Planned Parenthood v. Casey decision which reaffirmed Roe v. Wade and set the current threshold at fetal viability — widely accepted as 22-24 weeks.
The Court in Roe v. Wade found that prohibiting a woman’s right to abortion violated the Due Process Clause of the 14th Amendment, which provides a “right to privacy,” also legally construed as a fundamental aspect of liberty as promised by the Constitution and the Declaration of Independence.
All of that appears ready to be thrown out the window, as the conservative majority seemed eager to overturn Roe and return to the pre-1973 Dark Ages, when women’s reproductive rights were subject to whatever control mostly male legislatures wished to exert.
Sotomayor’s “stench” remark was echoed by other liberal justices and court watchers who noted that nothing had changed since 1973 or 1992 except the Court’s composition as a result of the highly politicized process that appointed Gorsuch, Kavanaugh and Coney Barrett. Roe and Casey are cast-iron precedents and all three of these nominees hypocritically declared their unwavering affection for precedent in the conformation process; not so much now. Sotomayor was right. The oral arguments stank to high heaven.
A few lowlights: Kavanaugh, exhibiting a faux boyish innocence lacking in his petulant confirmation performance, suggested that maybe the court should just be “neutral” and let the people decide. States’ rights were invoked to allow continuation of slavery in the 19th century and now Kavanaugh seems content to let states subject women to reproductive bondage in the 21st century.
Coney Barrett blithely offered that safe haven laws would solve the dilemma. Safe haven laws “allow” women to anonymously give up infants for adoption. No harm, no foul. Just go through nine months of an unwanted pregnancy, take on the health risks and devastating emotional challenges and then leave your baby on a figurative doorstep. I’ve listened to many oral arguments and never been as offended as by her smug callousness.
The stench on the court is trivial when compared to the impact the likely ruling will have on the lives and liberty of woman. The somewhat esoteric arguments in the high court were mostly absent any acknowledgement of reality.
Anti-choice conservatives on and off the court can moralize and theorize ’til the cows come home, but history and human sense assure that neither moralizing nor theorizing will stop women from exercising their rights to privacy and liberty. Much of the moralizing comes by way of Catholicism and all justices likely to overturn Roe are Catholic. And it must be mentioned that, according to the Guttmacher Institute, Catholic women have more abortions than others with a religious affiliation. Go figure.
The Guttmacher Institute estimates that there were 829,000 illegal or self-induced abortions in 1967, six years before Roe effectively legalized the procedure. In 2017, Guttmacher estimates that there were 862,320 legal abortions — a significantly lower per-capita rate than 1967.
Outlawing or restricting access to abortion has only one measurable consequence; killing women. And, as true with so many burdens in America, the heaviest toll is taken on poor women of color. Pre-Roe, the abortion mortality rate for nonwhite women was 12 times that for white women. According to Guttmacher, “In 1962 alone, nearly 1,600 women were admitted to Harlem Hospital Center in New York City for incomplete abortions.”
Roe v. Wade and Casey provided a wise balance between women’s freedom and a government interest in protecting women’s health and prenatal life. In terms of prenatal life, the proportions of abortions performed early in pregnancy rose from 20% before Roe to 56% after Roe.
To all, including me, who are troubled by late-term abortion, overturning Roe is an alarming prospect for this reason alone.
If Roe is overturned or whittled down by successive rulings, the impact will be devastating. Privileged white women will suffer least, if at all. Before and after Roe they could travel to receive care or pay for the best “off the radar” services. Poor women, including in the mostly rural red states that are most likely to ban or strictly limit abortion, will have to resort to back alleys, coat hangers or bearing children they didn’t want and have limited resources to care for.
The loss of reproductive freedom would further resign women to second-class status in a rapidly regressing society. If the conservative court can do this, beware. All advances in human rights are in jeopardy. If you think same-sex marriage, LGTBQ+ rights in the workplace and civil rights are sacrosanct, think again.
The righteous, religious Republican appointees are doing exactly what they were hired to do — and they’re just getting started.
Steve Nelson is a Valley News columnist. He can be reached at stevehutnelson@gmail.com.