The Indelible Uterus

*Disclaimer: I started writing this story months ago; way before the leaked draft of the Supreme Court decision on Roe v. Wade became public. I didn’t want to start from scratch because I feel like what I wrote so far was very important. The latest news of the leak will be discussed towards the middle of the article.

Abortion is a contentious topic, no matter whether you’re pro-choice or pro-life. I view abortion through different lenses. It’s a macro issue that affects society in many different ways. It’s a micro issue as it has huge implications for individuals, couples, and families. It’s a political issue upon which many have won campaigns promising to outlaw abortion or vowing to expand access to services so a woman can govern what happens within her own body.

During President Donald J. Trump’s time in office, he was allowed to appoint three new Justices to the Supreme Court (SCOTUS), the highest and most prestigious judicial body in America. Adding three conservative-leaning Justices to the SCOTUS tilted a once fairly balanced court to the conservative side, meaning that any decisions made by the court will likely slant towards the right side of the political spectrum. This is what Republicans had been wanting. They’ve been playing the long game, quietly building up support for conservative issues, such as abortion, and waiting for the day when conservatives controlled the SCOTUS. That day has arrived.

With new vigor, Republicans at the state level are tripping over themselves, trying to enact as many legal obstacles to abortion as they can, despite Roe v. Wade being the current precedent. In fact, in 2021, the states have passed a record number of restrictive abortion laws. As of July 2021, state legislatures around the country have passed 90 laws aiming to impede the procedure.

Some states have gone to extraordinary lengths to craft a bill that will have a good chance of being approved by the court if contested and sent to the SCOTUS. Take Texas as an example. In May, Governor Greg Abbott signed a bill that would ban abortions in the state for anyone over six weeks pregnant. Keep in mind, that many women don’t even know that they are pregnant at six weeks gestation.

Even if a woman finds out she’s pregnant around four weeks when she would typically miss her period, that will leave her less than two weeks to go through everything entailed in having an abortion. That’s barely enough time to make a life-altering decision, such as whether to have a baby or not. This law also bans abortions for cases of rape and incest but leaves an exception for medical emergencies.

The worst part about the Texas abortion law is that it calls on ordinary citizens to enforce it. The law has created a bounty hunting system in which citizens of Texas may report people they know that they think may have had an abortion after six weeks. Although the patient cannot be sued, this system allows the citizen to sue anyone who aided the individual in obtaining the abortion procedure.

This can include the doctor who performed the abortion, the nurses at the clinic, someone who gave the patient money to have the abortion, and anyone who would drive the individual to have the procedure done. The law allows these vigilantes to collect up to $10,000 and their legal fees from those being sued. Even if they lose the case, they are not required to pay the defendant’s legal fees. This law encourages one neighbor to spy on the other to catch them utilizing a private, constitutionally protected medical procedure.

The Texas law survived its first brush with the Supreme Court in a 5–4 decision with Chief Justice John Roberts siding with the liberal wing of the court. The current Supreme Court precedent prevents states from banning abortion before fetal viability, or when the fetus can survive by itself outside the womb, which usually occurs around 22–24 weeks gestation. Under the current precedent, the Texas law would be unconstitutional. However, the law was crafted in such a way that it evades this decades-old precedent. The rationale of those who wrote it is that the law is not unconstitutional because it will be the citizens enforcing the ban on abortions after six weeks-not the government.

Unfortunately for women, this outlandish abortion law is turning heads in other states where Republicans dominate the legislature. On Wednesday, Idaho Governor Brad Little signed a bill into law that copies Texas’s model of having individual citizens police the community for anyone getting an abortion after six weeks of gestation. The only difference between the Texas law and the Idaho law is that the latter has an exception for women who have been raped or are victims of incest.

Oklahoma, Tennessee, and Missouri are likely to be next to copy the Texas law. The Tennessee bill that’s currently in committee bans all abortions-not just those after six weeks. We are watching state after state try to enact laws that strip women of bodily autonomy. Abortion is something that should be decided by a woman and her doctor. The government has no place intruding on women’s reproductive rights. We’ve come a long way since Roe v. Wade and a disingenuous, misguided pro-life movement is threatening to decimate that progress.

The Leak

Just a few nights ago, word got out that a draft of an opinion on Roe v. Wade was just leaked and subsequently published by Politico. According to this draft, the U.S. Supreme Court has decided to strike down the landmark precedent Roe v. Wade and a 1992 ruling called Planned Parenthood v. Casey that reaffirmed a women’s constitutional right to an abortion. Although many people expressed shock and dismay on Twitter and protestors surrounded the SCOTUS, liberals must admit that we’ve seen this coming for a while.

Senator Mitch McConnell and Donald Trump helped lay the foundation for this opinion when McConnell infamously denied President Barack Obama’s Supreme Court nominee a hearing nine months before he was to leave office because it was “too close to an election.” According to McConnell and other Republicans, it would only be fair to allow the voters to have a say in who picks the new Supreme Court Justice. This was an unprecedented action and Obama still had plenty of time before his term ended.

An impending election didn’t stop McConnell from holding a hearing for Trump nominee, Amy Coney Barrett just two weeks before the former President lost the 2020 Election to Joe Biden. Trump was also allowed to nominate two other Justices: Justice Neil Gorsuch, who filled the seat that should belong to Obama’s nominee, and Justice Brett Kavanaugh, who was appointed after the retirement of Justice Anthony Kennedy, also sit on the High Court thanks to President Trump.

The death of beloved liberal Justice Ruth Bader Ginsburg allowed Trump to swing the SCOTUS definitively to the right and liberals knew it was only a matter of time before conservatives made a move against Roe. His nomination of Amy Coney Barrett solidified a 6 to 3 majority for conservatives, who’ve been playing the long game for over 50 years, waiting for this exact opportunity to take place.

Justice Samuel Alito wrote the draft opinion for the SCOTUS, and it was a direct abrogation of the 1973 decision and Planned Parenthood v. Casey, which gave women the constitutionally protected right to have an abortion. Alito points out that for 185 years before Roe was decided, the matter of abortion was left to the states, as there is no mention of it in the Constitution. The draft goes on to accuse the original premise of Roe to be egregiously wrong and even though the Court (in 1973) admitted that it had an interest in protecting “potential life,’ it held that this sentiment placed no bearing on unviable fetuses or those fetuses that could not possibly live outside its mother’s womb by itself.

In Planned Parenthood v. Casey, the Court was divided with two Justices wanting to allow Roe to remain in its current form, four others wanting to overrule it, and the remaining three Justices wanting to adhere to stare decisis, which means to allow the ruling to stand because it is prior precedent. Alito declares that the Justices’ ruling in Casey does not reaffirm Roe’s reasoning and that some Court members may have even experienced “reservations” about whether or not abortions are a constitutionally protected right. The draft states that 26 states have petitioned the Court to overturn Roe and Casey and return the issue of abortions to the states. Despite this fact, poll after poll shows that the majority of Americans support preserving constitutionally protected abortion rights.

Because there is no mention of abortion in the Constitution, abortion advocates have long held that the Due Process Clause of the 14th Amendment protects women’s reproductive rights. Alito argued that this clause has been used to uphold other issues that are not explicitly mentioned in the Constitution, but those issues must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Alito asserted that Roe was “egregiously wrong from the start.”

The case that sparked this decision, Dobbs v. Jackson Women’s Health Organization, focuses on a Mississippi law that bans abortion after fifteen weeks. In their attempt to justify this law, Alito noted that the Mississippi legislature pointed out that America is one of only seven countries that permits “non-therapeutic” or “elective abortion on demand” up to twenty weeks after conception. I find this reasoning to be extremely comical, as conservatives normally could care less what other nations are doing when it comes to important issues such as universal healthcare, free college education, or legalizing marijuana for recreational use. They are hypocrites of the worst kind.

The fact is that whether access to abortion is the law of the land or not, the need will not disappear, and the procedure will still occur…it’ll happen in a way that threatens women’s health and freedom. What bothers me most about the pro-life movement is that they care so much for the fetus until it is born. Then the baby and its mother are on their own. Conservatives don’t consider the burden that a baby can be on a woman who is not ready to be a mother. Perhaps she doesn’t have the support of the father of her baby or her family. Maybe she doesn’t have a stable source of income. There are so many things a woman must consider when making one of the biggest decisions of her life- whether or not to bring a child into the world.

Conservatives are completely against social welfare programs, universal healthcare, and universal pre-school; all important factors in raising a child. Some conservatives are so religiously radical that they don’t even support the use of contraceptives, the only guard against pregnancy on which a sexually active woman can rely. They’re obsessed with the idea of the perfect nuclear family, which isn’t necessarily the end goal for many people in the 21st century.

I’m not here to argue the constitutionality of Roe, I’m not a constitutional lawyer. I am disputing that Roe should have been codified long ago by a Democratic majority. We never should have relied on the morality of the Courts to protect this precious right. Democrats have had a majority in the House and Senate twelve times since 1973. Why haven’t they done anything to ensure that women’s reproductive rights would be preserved for decades to come? Eliminate the filibuster and do it today!

Although we should have been prepared for this day, we’re not. As a result, the opinion will likely come down in the Spring, leaving it up to individual states to decide whether abortion will be a legal medical procedure. As they always say, elections have consequences and we’re feeling the residual effects from 2016 right now. To all those liberal voters who turned their nose up at the thought of voting for Hillary Clinton-are you happy with your choice now? We need to get active on the local level because we could be dealing with a 6 to 3 conservative majority for a long time, and it could affect many other issues that are near and dear to our hearts. I guess it’s true what they say-freedom isn’t free.