Quick Thoughts on Roe v. Wade
Roe v. Wade
Oof. This is a complex one.
Earlier this week a draft majority decision was leaked to Politico on the case of Mississippi vs. Jackson Women’s Health Organization. The decision is authored by Justice Samuel Alito. It’s a majority opinion and the leaker indicated that 5 justices have joined the majority opinion, namely Justices: Kavanaugh, Barrett, Gorsuch, Alito, and Thomas. Justices Sotomayor, Breyer, and Kagan have all dissented. The Chief Justice, John Roberts, had not yet decided according to the leaker.
The Draft Majority Opinion rests on one sentence.
“We hold that Roe and Casey must be overruled.”
Chief Justice Roberts confirmed the authenticity of the draft opinion.
This is unprecedented and leads to a number of clear and unclear consequences.
1) Clear legal consequences
The federal constitution no longer conveys a right for an abortion to individuals. It is now up to the individual states to determine access to abortion.
Trust between clerks, justices, and court staff at the Supreme Court must be at a 150 year low. I have no insider information, but the private deliberations surrounding decisions between justices and their teams is a critical pillar in the Supreme Court’s decision-making process. That Trust has been shattered.
The legitimacy of the Court has been called into question. Justice Sotomayor asked during oral arguments on the Mississippi noted that Mississippi decided to pass a restrictive law because “we have new justices.” That observation lead her to ask “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”
2) Unclear legal consequences
Will the overturning of Roe result in a wave of new cases asking the Supreme Court to overturn other long held decisions?
Does the majority opinion open the door to possible attacks on fundamental rights that are not mentioned anywhere in the Constitution? More particularly, are gender rights, sexual rights, and issues around the right to contract now open for reinterpretation? (Think gay marriage, non-discrimination accommodation laws, protected classes of gender, sexual orientation).
Will the majority hold? Now that the leak has happened, will the 5 justices stick to the opinion or will the outcry over the decision cause someone to change their vote?
3) Ethical and Moral considerations
There are deeply held beliefs about life, dignity, autonomy, and choice in the US. The cultural arguments surrounding abortion have been deep and intense since before Roe. The different perspectives seem to be irreconcilable.
The Choice camp.
A deeply held belief that the creation of life is an unequal experience. The consequences of sexual relationships don’t equal divide between male and female. Women bear an unequal burden of the consequences of a sexual encounter. A male may have a brief sexual encounter and walk away without ever knowing the consequences of his actions. Women experience the same moment entirely differently and could carry with them the consequences of such an encounter for a lifetime. Pregnancy is no small thing for woman and potentially a total non-issue for a man. The unfairness and burden of being pregnant, birthing a child (with all of its risks), and raising a child fall on women. Should a woman have the right to deploy technology after a sexual encounter to control those consequences? The answer for those in the Choice camp is yes. A woman in consultation with health professionals should be able to make decisions without interference from the state. The choice camp cannot find an observable moment for when life can be declared to have begun. The overwhelming majority of fertilized eggs never make it past the first two weeks.
There isn’t an observable, workable, and measurable way to declare life begins at conception.
The Life Camp.
Life begins at conception and rights attach to a baby long before it develops limbs, eyes, a brain, or a heart. The focus is on the life that is activated at the moment of conception. Abortion ends life and is therefor murder. The unfairness experienced by women is outweighed by the newly created life. Particular care needs to be taken to protect the new life as this baby is in no position to speak out and advocate for itself. The possibility of ending a life merely because it isn’t fair to the mother is murderous.
The moderate camp.
Moderates try to weigh the positions of the pro-choice and the pro-life camps. Moderates see the unequal distributions of unwanted pregnancies BUT ALSO worry about the when life begins. Moderates disfavor abortion except in limited instances of rape, incest, and the life of the mother. Moderates don’t believe that abortion is murder BUT do believe that the State can limit abortions after 21 weeks. Moderates recognize that the moment when life begins isn’t knowable, but clearly at 7 months pregnancy life has happened.
For those who are members of the Church of Jesus Christ of Latter-day Saints, I had a twitter conversation about the theological consequences of abortion for us here:
4) Political Consequences
I don’t know. All I do know is this: Dems are mad. Rs are glad. Those who voted for Trump to get justices to overturn Roe v. Wade have won.
Will this matter in the 2022 midterms? I am doubtful. I do think Blue states will get Bluer and Red states will get Redder.
I love you all. Please be kind to each other on this topic. The world needs more kindness when discussing hard things. Be charitable.