A Rising Tide

 A Rising Tide

 

The leaked draft of Justice Alioto’s majority opinion overturning Roe v. Wade in a case out of Mississippi created a firestorm that will carry through the mid-term elections, those in the Fall and beyond. While the draft may not look the same in the Court’s final opinion, it is unlikely that any of the votes to overturn Roe will change, the testimony in recent Senate confirmation hearings notwithstanding. 

 

Over 70 percent of Americans consistently poll in favor of maintaining Roe as the law of the land. That support will manifest in the upcoming electoral cycles turning out anti-abortion legislators in state and federal elections as women and their male allies organize to support pro-choice replacements. 

 

If Roe is overturned, abortion will become the defining issue in the political divide that has engulfed America for several decades and should relegate the MAGA and anti-abortion movements to the fringes of American political discourse where they truly belong. 

 

Our daughter lives in Canada. Abortion there is considered a health service provided just like all other health services. The Canadian government believes it has no business telling medical providers which procedures they should provide to their patients and the government funded healthcare service treats abortion accordingly, leaving the decision to use it to women and their doctors. The procedure is less politicized as a result. 

 

Here in the United States, the majority will has been hijacked by a religious minority bent upon forcing their beliefs upon the entire populace whether they share those religious beliefs or not. 

 

I know women who have chosen to end their pregnancies by having an abortion. All are thoughtful, caring, and compassionate and made a difficult decision to end those pregnancies. None did it blithely or just because they could. None regret having made the choice. I respect them all for having made their choices and cannot consider taking away their ability to make those deeply personal decisions. 

 

I also know women opposed to abortion who would never choose to have the procedure. I respect them and their right to have that belief and make that choice. 

 

Where I draw the line is forcing either group to embrace the beliefs of the other. 

 

 Making abortion illegal will never end use of the procedure. Women will always find ways to end unwanted pregnancies. What overturning Roe will accomplish is the end of safe abortions in those states which make the procedure illegal. It will force many to take unwanted pregnancies to term and leave them with children they cannot support, and our laisse-faire support system will leave them to suffer with inadequate health care and food insecurity. 

 

Many have decried the unprecedented leak of Justice Alioto’s draft as the real problem. Such leaks are unprecedented and wrong but should not be used to deflect the discussion from the content of the draft. 

 

Better legal scholars than I have already plumbed the logic and support Alioto used to reach his conclusions justifying reversal of Roe v. Wade. They have pointed out two very troubling concerns raised by Alioto’s draft. 

 

The first is Alioto’s reliance on pronouncements by Sir Matthew Hale, a seventeenth century English barrister. In today’s world Hale would be labeled a classic misogynist. He espoused the biblical views common at the time that women were born from Adam’s rib and therefore his property. Hale would reduce women’s reproductive freedom to those of present-day livestock whose keepers regulate with complete impunity. Hale’s view relegates women back to being barefoot, pregnant and in the kitchen, like it or not. 

 

The second concern arises from Alioto’s analysis requiring constitutional rights to be firmly rooted in its original construct to pass muster. That analysis, when carried over to modern decisions, puts things like using contraceptives, same sex, and interracial marriages, LBGQTI rights, laws banning racial and gender discrimination and women’s right to vote in serious jeopardy. While Alioto tried to limit his analysis to just abortions, he understands that his analysis used to justify banning them can easily be used to justify other bans on things a majority of the justices believe are wrong. Legal precedents cannot be easily constrained.

 

Women and their allies across the country are already mobilizing, organizing, marching, and protesting the inevitability of Roe’s demise given the present makeup of the Court. The resulting movement will rekindle the one started by the women who are their mothers and grandmothers to create an America where women have equal rights to their male counterparts. 

 

Modern women who have experienced equal pay for equal work, the right to vote and work just like men, the freedom to have complete reproductive healthcare, the ability to sit in seats of political and economic power, the right to freely express their sexuality, and to enjoy free speech of their own opinions unconstrained by husbands or fathers will not go back to Hale’s views of their roles. We are in for quite a ride.