Alito spends a considerable portion of the first 68 pages of his decision blathering on about what the abortion laws were in the US in the mid-1800s when the 14th Amendment was ratified—when women were chattel.
by Susan E. Stutz
Roe was decided in 1973. I was five years old.
I did not grow up politically aware, but as I came of age, I knew that my body is my own–I am the only one who gets to decide what happens to it. That I am, we are, more than incubators. All of my reproductive years were lived with the certainty that the right to decide for myself whether or not to have a child was secure and that my reproductive rights were protected no matter how many blockades my state tried to erect. I marched, I donated, and I believed—believe—in the inalienable autonomy of women.
Call it naïveté. Wishful thinking. Hell, call it stupidity. But, deep down, I never really believed that Roe would fall. But it has.
Although the case before SCOTUS concerns Mississippi’s Gestation Age Act, other than a brief mention at the beginning of the draft, there is almost nothing else about it in the entirety of the opinion. Rather, Alito spends a considerable portion of the first 68 pages (the remaining 30 pages of the draft are an index) blathering on about what the abortion laws were in the US in the mid-1800s when the 14th Amendment was ratified. You know, when women were chattel and not permitted to have an independent thought in their little heads for anything other than child-bearing and rearing, housekeeping, and unquestioningly obeying the men in their lives. Ah, those were the days.
Alito even goes so far as to harken back to a treatise written in the 13th century by Henry de Bracton, which declared that harm to a pregnant person by either violence or poison might be considered homicide if the fetus dies. The treatise also states unequivocally that women are inferior to men. Let us think about that for a moment–the United States Supreme Court is fashioning an opinion in the year 2022, at least in part, around words written in the 1200s.
Alito also argues that there is no precedent for the right to an abortion. What he next offers is a list of cases wherein SCOTUS has opined the very opposite when it comes to an individual's right to make their own medical decisions. Take, for example, Turner v. Safley (1987) and the right to obtain contraception; Meyer v. Nebraska (1923) and the right not to be sterilized without consent; Skinner v. Oklahoma (1942) and the right not to be subjected to involuntary surgery. As with these cases, whether or not to have an abortion is a medical decision, no matter how much the anti-choice side wants to say otherwise, and it deserves recognition.
And, because our nation’s history is not replete with examples of protecting a women’s right to an abortion, coupled with the fact that our Constitution does not have the word abortion in it, according to Alito, that right has never been ours. And, true to the misogynist’s handbook, he refuses to give any agency to child-bearing individuals who are at the center of this issue until the last pages of the opinion when he states (and I paraphrase) that if we do not like it, we can run for office and/or exercise our voting privilege. These electing officials will not enact legislation that takes away our rights. In an age of the most prolific gerrymandering attempts (and successes) in our nation's history, SCOTUS’ answer is to tell us to vote. Not that women have an inalienable right to autonomy. Not that women are to be seen and heard. Not that women were not made to live in the shadow of the men in their lives. Not that we deserve to make our own decisions. What it does say is that only women have a responsibility to change the tide against women–the men in power have no obligation to respect us and take steps to protect our rights. That upon the throne from which old, white men rule the world, there is no place for women. None. Zip. Nada.
It is clear, to even the most novice of SCOTUS opinion readers, that the current overly conservative Court aimed to wait for an abortion case—any abortion case–regardless of its facts or its relation to Roe to undo a woman’s right to the governance of her own body. Alito even goes so far as to say, “a state’s regulation of abortion is not a sex-based classification and is thus not subject to the ‘heightened scrutiny’ that applies to such classification.” Really? When have you ever met a genetically male individual who was able to have an abortion? Our reproductive systems are at the very core of what separates us. There is nothing else that women can do but that men cannot. If any issue deserves such a classification, reproductive rights are it.
It is hard not to be devastated. Not to tear my hair out by the roots at the sheer madness of it all. Not to scream until the world around me implodes. My blood boils as I write. In 2022, women still do not have the agency afforded to men—control over our bodies. As a species, seven nations have gone to the moon, 12 individuals have walked on it, and every day, we come closer to realizing a (hu)manned mission to Mars. We carry mini-computers in our pockets; we work for countries around the globe from the comfort of our American living rooms; we have super-computers that capture the entire internet every few days; we have sequenced the human genome; and, yet, women still do not have the fundamental right to say what happens to their bodies. Alito’s draft relies on the fact that because women have never been in control of their bodies, we do not deserve to be so now. He might as well have written, “it has always been this way,” and called it a day. In the 60,000 years since humanity left the African continent, women remain an object to be played with by men in glass houses.
I have spent 30 years in Florida’s legal system and have seen the Court from many perspectives (although I am not an attorney). I have read more state and federal court opinions than I can shake a stick at. I recognize that there must be an end. That there has to be a final word. If no entity were permitted to make the final decision, chaos would reign supreme all day, every day. But, what Alito’s draft also demonstrates, is the unmitigated danger of being the one to have the last word. If the draft becomes the official opinion, there is nowhere left for women to go besides their state legislators. Add to the mix that at least 13 states are classified as having trigger laws, which means they are poised to outlaw abortion in all respects once Roe has officially been overturned and options become extremely limited. There are also at least ten additional states set to enact even more stringent restrictions than they already have.
But, here is the rub in all of this. Outlawing abortion will never end abortion. It will only end safe abortions for those not privileged enough to be able to afford to take time off of work and travel to states which recognize reproductive rights. Throughout humanity’s history, women have always found a way to terminate a pregnancy regardless of its legality. What Alito’s draft means for those of us who face this dilemma every day is that they must now factor in the very real prospect of their death as a result of a botched back-office procedure. Abortion is healthcare, and it will never go away. But, countless women will die due to the dismantling of Roe. And the hardest hit will be women of color and those of little means. Once again, there is a reification of America's class system by the drawing of lines between the haves and the have-nots over the issue of reproductive healthcare.
So, what can we do?
For starters, we can lobby our officials to recognize the autonomy of women and child-bearing individuals. The House already codified women's rights in the Women's Health Protection Act, but it can't defeat the Senate filibuster, having fallen 49-51 (with Joe Manchin also voting no.) Send state or senate to 50409 and send a letter to your legislators. You can then turn that letter into a petition which you can share with friends and families and put on your social media platforms for even more attention.
We also have several petitions that have been written by individuals just like you and me that you can sign on to and share:
- Codify Roe v. Wade
- Congress Needs to Codify our Right to Abortion and Expand SCOTUS Now
- Roe v. Wade Overturn (targets the Supreme Court)
With Resistbot, you can now write directly to the Supreme Court. Send court to do it now. Also, take a look at John Macgregor, who's been using TikTok and his Resistbot page to drive a new letter each day to elected officials on the subject.
We can go a step further and take Alito up on his suggestion to run for office. There are thousands of seats out there that would benefit from having a pro-choice candidate. Text run to 50409, and the bot will provide you with a list of potential seats collated by the folks at Run for Something.
Continue to support Planned Parenthood which is our country’s leading provider of reproductive healthcare.
And we can donate to organizations that provide financial resources to those that need abortion healthcare but that do not have how to obtain it. Our friend, Helmi Helkin, has created a website that lists this type of organization in every state. If you missed it, you can watch or listen to the May 8th episode of Resistbot Live, where we discussed reproductive rights.
For those interested in legal non-fiction, Becoming Justice Blackmun, written by Linda Greenhouse (Pulitzer Prize winner and former N.Y. Times Supreme Court correspondent), offers a fascinating inside look at the Court when Roe was decided, highlighting Justice Blackmun’s journey to becoming the author of one of the inarguably most important decisions ever to be handed down by our highest court.
Thanks to Ty B.