The Fall of Roe: Something Wicked This Way Comes
Reproductive healthcare is not the only fundamental right that has a date with the executioner.
by Susan E. Stutz
When Shakespeare published Macbeth in the early 1600s, the line “something wicked this way comes” referred to the monster that Macbeth had become. Drunk on the prospect of unlimited power, Macbeth takes into his own hands the outcome of predictions made to him by three witches by killing the reigning king to be king himself. As his power is usurped, Macbeth’s tenous reign can only be maintained through brutality and oppression. Fast forward 400 years, and much the same can be said about the lengths white men are willing to go to hold on to the reins of power.
In Dobbs, the opinion overturning both Roe and Casey, the Court has again demonstrated how the usurped privilege of white men is maintained, and how their need to control this country is accomplished by relegating women and people of color to the back alley. Those with power can rule the world, and the idea that a woman or person of color can enjoy any measure of liberty does not sit well with those who believe it is only their opinion that matters.
I, and millions of others capable of bearing children, have lived for 50 years secure in the knowledge that we have the final word over what happens to our bodies, and the decision to have children could only be made by us. When states put roadblocks in our way, Roe was the bulldozer that flattened them. Until June 24, 2022. Until Dobbs.
We have also lived these past fifty years knowing that the fight for women’s autonomy has not ended. To those who haunt the halls of power, there is only room for one form of humanity at the pinnacle. White, wealthy men have been there since the beginning, climbing there on the backs of women and people of color. Justice Alito’s majority opinion in Dobbs reifies this unearned privilege and reminds us that the perspective of white men is, and always has been, the only one that counts. They can’t maintain hegemony by becoming equals.
There are only two ways to view our Constitution and the rights enshrined therein: one with an eye toward the intervening 240 years, recognizing how society in America has evolved, and applying the legal concepts developed in the mid-1700s to the conflicts of today. The other is a strict constructionist perspective that dictates it must be interpreted as written. Generally, this means using the sight of the “founding fathers” together with what their words meant to them on the day the Constitution was written and ratified.
The phrase “all men are created equal” illustrates this idea perfectly. In this phrase, “men” is not used in the same way it is today: to reflect all of mankind. And, because of the Three-fifths Compromise—enacted one year before ratification—men and women of color were not considered fully-formed people at all; the phrase means exactly what it says—all men are created equal–all white, wealthy, land-owning, men.
Because of Judge Alito’s leaked draft opinion, we already knew justification for the Court’s decision harkens back to the 13th century. What is also clear, now that we have the concurring (Roberts, Thomas, Kavanaugh) and dissenting (Sotomayor, Kagan, Breyer) opinions, is that reproductive healthcare is not the only fundamental right that may have a date with the executioner.
Whereas Roberts and Kavanaugh manage to restrain themselves to the issue before the Court, Thomas’ separate concurring opinion is a harbinger of horrible things to come. According to Thomas, SCOTUS should “reconsider all of [the] Court’s substantive due process precedents, including Griswold [right to protection against state interference when it comes to contraception]. Lawrence [right to privacy of intimate relations for same-sex couples], and Obergefell [marriage equality for same-sex couples]. Thomas goes on to say, “[a]fter overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad of rights that our substantive due process cases have generated” (emphasis mine). Thomas calls into question a whole host of cases decided using the due process clause of the Fifth Amendment (due process a the federal level) and the 14th Amendment (application of the Fifth Amendment to the states). To be sure, not all cases that were decided relied on substantive due process will result in the same opinion without those amendments.
Ironically, Thomas does not mention the 14th Amendment case that directly impacts him: Loving v. Virginia, a 1967 case on interracial marriage. But for Loving, Justice Thomas would not have been permitted to marry either of his two wives. Because, if we were to take a strict constructionist view and dismiss substantive due process, people of color have never been, nor will they ever be, entitled to the fruits of democracy.
Hegemonic masculinity is the monster created by the formation of the United States. Our founding documents shore up the narrative, as men like Alito have wielded power to say what is acceptable and by whom: what we do in the privacy of our own homes, decisions we make with our families, and who we get to love. They have held the gavel on extending fundamental rights to everyone, not just the men in the mirror.
If cases decided on substantive due process were reversed, hard-fought rights that women and people of color have managed to gain since our country’s founding could face significant obstacles. Voting rights, access to birth control, interracial marriage, and same-sex marriage are all on the chopping block if Thomas’ suggestion is taken up in earnest.
We can’t allow it to happen.
Macbeth paid the ultimate price for his hubris. If we do not have a governing body that resembles and reflects the country’s make-up, women and people of color will continue to pay the price by losing the recognition that we are the people.
And, let’s face it, voting doesn’t entirely solve this problem. Yes, we need to vote for legislators to share our values and encourage one or more of the 80 million people who didn’t vote for President in 2020. But we also need to rethink the power structures in this country. Do we need justices to have lifelong terms? Should appointments to our highest court rotate, and on what timeline? Should we choose jurists in the same way that we choose our representatives? What as a country can we do about a court that so blatantly disregards its rulings? Our country has changed a lot in 240 years. Gone are the days when only white men should hold power. In 2016 we saw an incoming Congress that resembled us more than ever. That needs to continue, and it only happens when we start having a new conversation.
So, what can we do?
For starters, we can join the members of our community by signing on to their petitions:
- Roe is gone. Expand the Supreme Court before we lose all of our other rights!
- Roe v. Wade
- Codify Roe vs. Wade
- Protect Roe v. Wade
- Day 30 of Writing Until Roe v. Wade is Codified
And more are being started every day.
Send court to 50409 to send a letter to the Supreme Court.
Send run to see a list of offices you can run for.
And don’t forget to support local organizations such as the ones on this list created by our friend, Helmi Helkin, which assist those who need reproductive healthcare but do not have the means to access it.
Thanks to Elena and Chris E.