by Jay Bookman, Georgia Recorder [This opinion article first appeared in the Georgia Recorder, republished with permission]
May 6, 2022
For almost five decades, Roe v. Wade has been established American law, guaranteeing the constitutional right of choice to all Americans. Even those Supreme Court justices now ready to toss that precedent aside have previously testified under oath during their Senate confirmation hearings that they believed Roe is established law that ought to be respected.
They lied to the Senate, and they lied to us. The fact that most Americans on both sides of the abortion question understood them to be lies at the time they were told does not alter their character as lies. And those lies have been accompanied by multitudes of other lies, as lies tend to be.
For example, we have been told for most of the decades since Roe that the pro-life movement was not seeking an absolute ban on abortion, that of course reasonable exemptions would be allowed in cases of rape, incest, life of the mother or health of the mother. Of course it would not apply to ectopic pregnancies, or to pregnancies in which fetal defects would make it impossible for the baby to survive. To impose a ban in those situations would be barbaric.
Likewise, we have been reassured that a reversal of Roe would not mean a national ban on abortion, but would merely return the decision-making powers to the 50 states, which would each craft its own approach to the issue. We have also been told earnestly that post-Roe, no one would be seeking to prosecute those who sought abortions, out of sympathy for women placed in such a difficult situation.
But now, on the precipice of that change, all such reassurances are being abandoned. Congressional Republicans are preparing legislation to ban abortion nationwide. Laws already on the books in various states in anticipation of Roe’s reversal would outlaw not just abortion but the crossing of state lines to seek an abortion. Think of them as fugitive abortion laws. Bills are also moving in state legislatures to treat abortion as homicide, with pregnant women, doctors, nurses and administrators as murderers or accomplices.
And those three exceptions? Republicans who today dare to support allowing abortion in cases of rape, incest or life of the mother risk excommunication from their party, in yet another example of the party’s increasing radicalism. The only acceptable position now is to insist that human life begins at conception, and all else flows from that.
If human life begins at conception then any attempt to end that life must be treated as murder. If human life begins at conception then it doesn’t matter how that conception occurred – rape, incest — it doesn’t matter. A woman who was given no choice about whether to have sex is also given no choice whether to carry to term and give birth if that rape results in pregnancy.
“Oh, don’t worry,” we are told. “Rape rarely results in pregnancy,” which is false. But if those instances truly are rare, then surely we can allow an exception in those cases?
No, we cannot. If human life begins at conception then all abortion is murder. If human life begins at conception then of course it is criminal to cross state lines to end that life. If human life begins at conception, if embryos are full-blown U.S. citizens, then of course the U.S. government must intervene; it cannot allow pre-born Americans to die in one state but live in another.
In a leaked draft opinion, written with the apparent support of four of his nine colleagues on the Supreme Court, Justice Samuel Alito dismisses the idea that Americans have a constitutional right to privacy, and with it the idea that some decisions are too intimate and personal to be decided by the heavy hand of government. As Alito notes, the words “privacy” and “abortion” are mentioned nowhere in the Constitution, therefore leading him to conclude that we have no right to such things.
He also waves away the Ninth Amendment, which the Founders included in anticipation of just such an argument. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” it states. Alito writes that the amendment does not apply, because the right to abortion “is not deeply rooted in the nation’s history and tradition.”
But if there is no right to privacy in the Constitution, if it is not among those rights “retained by the people” even if it is not explicitly mentioned, then the door is reopened to challenge other rights granted as part of the right to privacy: the right to obtain contraceptives, the right of gay Americans to live as straight Americans live, the right to marry. Because after all, “gay” and “contraceptive” also do not appear in the Constitution.
Instead, Alito writes, “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
If that draft opinion holds, as it probably will, the state legislators that you elect, the members of Congress and the attorneys general and governors that you elect, will now decide whether and how the rights that we have enjoyed for half a century will continue to exist.
The Constitution, as construed by this court, will no longer protect us. Our only remaining protection is through the ballot box, and if we don’t make our voices heard loudly and clearly there, then we can expect even worse rulings in the years ahead. Vote wisely or accept the consequences.
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