“First they came for the socialists, and I did not speak out—because I was not a socialist. Then they came for the trade unionists, and I did not speak out— because I was not a trade unionist. Then they came for the Jews, and I did not speak out—because I was not a Jew. Then they came for me—and there was no one left to speak for me.” – Martin Niemoller
The Supreme Court is posed to strike down Roe v. Wade, which guaranteed women the right to abortion as a fundamental human right under the Constitution. This is a right that has been embedded in our society for 50 years and has been confirmed numerous times by Supreme Court Justices appointed by both Republican and Democratic Presidents. In fact, in the 1992 case Planned Parenthood v. Casey, three Republican-appointed conservative Justices, Sandra Day O’Connor, Anthony Kennedy and David Souter, voted to affirm Roe v. Wade, because overturning Roe would cause “profound and unnecessary damage to the court’s legitimacy, and to the nation’s commitment to the rule of law.” These three Justices wrote in their opinion that even though some of them as individuals found abortion offensive to their own principles of morality, “their obligation [was] to define the liberty of all, not to mandate our own moral code.”
Mandating a radical fundamentalist Christian moral code is exactly what the majority of the current Supreme Court is proposing to do. Marching in lockstep, Republican-appointed Justices, who swore under oath in their Senate confirmation hearings that Roe was settled law and that the principle of “stare decisis” (meaning “to stand by the things that have been decided”) should be respected, will now vote to overturn Roe v. Wade. Until now, the Supreme Court has rarely overturned precedent unless the cases denied fundamental civil rights to a group of Americans, such as denying citizenship to Black Americans (Dred Scott v. Sandford) and upholding racial segregation under the “separate but equal doctrine (Plessy v. Ferguson).
This will be the first time in 150 years that the Supreme Court has eliminated an existing Constitutional guarantee. Prior to this case, the Supreme Court was hailed as the objective, non-partisan protector of civil and human rights, protecting minorities against the tyranny of the majority. What is so ironic now, is that a woman’s right to choose abortion is favored by an overwhelming majority of Americans.
In his authorship of the draft majority opinion in Dobbs v. Jackson Women’s Health, Justice Samuel Alito shows little regard or respect for his Supreme Court predecessors, calling Roe v. Wade and Planned Parenthood v. Casey “egregiously wrong.” He argues that Roe had unclear roots in the Constitution because the Constitution makes no reference to abortion and any substantive due process right must be “deeply rooted in this Nation’s history and tradition.”
As a woman and as a civil rights lawyer who lived through a time before Roe v. Wade became law, I am horrified, outraged and furious on so many levels.
First of all, how could abortion or any other woman’s right be foundational when women had neither a voice nor a vote at the time the Constitution was drafted? Furthermore, the fact that abortion is not mentioned specifically in the Constitution is irrelevant. The Constitution is a living document whose fundamental principles may be applied in situations that the Founding Fathers could not have foreseen in their lifetimes. The Supreme Court has affirmed many other personal liberties not mentioned specifically in the Constitution using the Due Process Clause guarantee that no state shall deprive any person of “life, liberty or property” without due process. There has been a long-standing understanding that such liberty includes the right to make personal, intimate decisions without government interference. The Constitution does not mention marriage, yet the Supreme Court has found that interracial marriage and same sex marriage are fundamental Constitutional rights under the Due Process Clause. The Constitution does not mention contraception, yet the Supreme Court has ruled that the government may not restrict women’s access to birth control. Government has no business barging into our bedrooms or participating in any personal decision to seek any medical procedure that a woman and her doctor deem necessary. Be forewarned, this new Trump Republican Party and its surrogates in the Supreme Court will not stop at banning abortion. They will likely go after your rights to contraception, same sex marriage and interracial marriage next.
Decisions about who to marry and when and if to have children is deeply personal and private and should not be determined by the changing whims of politicians or the serendipity of living in a state that respects those rights. Republican former First Lady Barbara Bush, when asked about her views on abortion, stated firmly that this issue should not be in the Republican platform at all. She said that while she does not like abortion, we have no right “to make that choice for someone else.”
Second, I have lost all faith in the legitimacy of the Supreme Court. The Court has clearly been engineered and compromised by partisan politics. No longer can we rely on the Supreme Court to carry the vanguard for civil rights and equality. Republican Senator Susan Collins noted, “If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meeting in my office.” Republican Senator Lisa Murkowski echoed her Republican colleague when she stated that, if the decision “goes in the direction that this leaked copy has indicated, I will just tell you that it rocks my confidence in the court right now.”
I am additionally shocked that Chief Justice Roberts is more perturbed about the leak of the draft ruling than he was about the shocking revelation that Justice Clarence Thomas did not recuse himself in a case that might implicate his wife if documents sought by the January 6th Committee were released by the Court. Justice Thomas was the only Justice to rule against the release. On any other level of the judiciary, this would be a clear conflict of interest and a serious breach of ethics. Yet, the Supreme Court remains the only judicial body allowed to police itself, with no rules of conduct. This is frightening, given what is happening on the Court and what the Court may be called upon to rule on in the future, including the outcome of the next Presidential election.
Third, I am sick and tired of Republican hypocrisy. They call themselves “pro-life,’ but that could not be further from the truth. They are merely “pro-birth.” Once they have forced women to give birth, they no longer have an interest in safeguarding the lives and health of mothers and their babies. They take no notice of the families that don’t have healthcare, living paycheck to paycheck, who can barely afford to feed their existing children. They could care less that the gains women have made in workplace equity and equality will be lost, further hindering women’s ability to take care of their families. Michele Norris, in an opinion for the Washington Post, aptly states that “This is the false piety hidden in the Republican Party’s zeal to roll back a woman’s right to choose. The sanctity of human life is all-important right up to the point when that flesh-and-bone child enters a world where programs designed to support women, the poor or households teetering toward economic ruin are being scaled back by a party that claims to be about family values.”
These same Republicans have voted against affordable health care, a cap on insulin prices, free childcare, paid family leave, child tax subsidies and supplemental nutrition assistance for children. In their 2024 platform, they propose to eliminate Medicare, Medicaid, Social Security, the Americans with Disabilities Act and the Affordable Care Act. They are even silent when it comes to the simplest principle of enhanced child support enforcement so the men who father these children must provide for the lives they create. And we must not forget the lives of all the children who have died because of gun violence. Republicans have voted against every attempt to reasonably regulate gun ownership, especially military style mass-killing weapons, so that guns don’t get into the hands of the mentally ill or terrorists.
Finally, I am beyond shocked by the cruelty of the Supreme Court and the extremist Republicans in not even carving out exceptions for rape, incest and the life of the mother. Since the Republicans and their Supreme Court surrogates don’t wish to face the seismic consequences that a total ban on abortion will have, let’s get graphic. This decision will prevent a medical abortion for the woman with kidney disease whose doctors say her pregnancy is life-threatening; for the pregnant woman whose high blood pressure may kill her; for the woman with severe clinical depression who is criminalized for trying to save herself; for the woman who doesn’t know she is pregnant because of irregular periods or heavy spotting; for the girl who doesn’t even know she is pregnant for months because she has only just started puberty and her school district has banned sex education; for the women who religiously took birth control but that birth control failed; for the women with ectopic pregnancies; for the parents who are told their baby will be born with anencephaly, without a brain; for the woman who is told that her fetus has no heartbeat; for the woman who miscarries and has to prove it was natural so she won’t go to jail for murder; for the woman who can only conceive by in vitro fertilization because she had to freeze her healthy eggs before undergoing chemotherapy for cancer; for the parents who are told their baby will not live past infancy and will be in extreme pain; for all the young women ostracized, shamed and criminalized after being abused by a family member, while the men that impregnate them suffer no consequences. These false-pious Republicans ignore the women living in rural remote areas who cannot afford the transportation, hotel and time off to travel to another state for this health procedure. Poor women, many of whom are women of color, will be forced once again to seek dangerous back-alley abortions that often result in sepsis and death. These are just some examples of the women who will be scarred for life.
I just can’t understand the need of these extremist Republicans to impose their ideology and radical fundamentalism on others. If you don’t believe in abortion, don’t get one. But don’t interfere with my right to make decisions about my body. I am Jewish, and my religion permits me to get an abortion. In fact, my religion puts a woman’s well-being and health above all else. Why is your religion more important than mine? Is it just that you can’t accept our country’s changing demographics and want to return to a society dominated by white, male Christians, where women and people of color remain second-class citizens?
Washington Post columnist Jennifer Rubin has told journalists to stop referring to the tribal convulsions in our country as a culture war, “as if there was a merely a “battle between two sides over hemlines or movie ratings.” Instead, she says, “This is religious tyranny…in which the right seeks to break through all restraints on government power in an effort to establish a society that aligns with a minority view of America as a White, Christian country.”
I’m sure Ms. Rubin’s use of the term “establish” was intentional, because what these radical Republicans and their proxies on the Court are doing is a clear violation of the “Establishment Clause” of the First Amendment to the Constitution. The Establishment Clause expressly forbids Congress from promoting one religion over others. By engineering a Supreme Court whose Justices are beholden to and compromised by the Republican Party and the ultra-Conservative Federalist Society, and then seeking to pass a nationwide abortion prohibition law, Congress has clearly done just that.
The world looks to the United States as a model for progress and the growth of human rights. Yet, we will be the only developed and industrialized democratic nation in the world that now prohibits abortion. According to the Center for Reproductive Rights, we will join the ranks of only 20 other countries and regions in the world where abortion is illegal: Andorra, Aruba, Congo, Curacao, Dominican Republic, Egypt, El Salvador, Haiti, Honduras, Iraq, Jamaica, Laos, Madagascar, Malta, Mauritania, Nicaragua, Palau, Philippines, San Marino, Senegal, Sierra Leone, Suriname, Tonga and West Bank/Gaza Strip.
It is way past time for the Democrats to raise their voices and reject the Republican’s use of the label “pro-life.” There is only one political party that is truly pro-life, pro-choice and pro-family. We are at a critical juncture in our democracy. If you don’t vote for Democrats, you may lose more than you even realize.
If you are not a radical right anti-democratic extremist, you had better get off the sidelines because the Republicans and the Supreme Court may be coming for your Constitutional rights next. And there may be no one left to speak for you.