Women's bodies are front and center these days since a leaked Supreme Court draft opinion overturning Roe. This is my small offering on this subject.
We didn't know much about our bodies in the 1970s, but we did know that rape, incest, coercion, health, age, fetal abnormality, poverty and myriad nuanced reasons could produce a pregnancy that was unsustainable for our physical, emotional or mental health.
We made hard choices. In my high school and college, girls and women disappeared from view after illegal abortions. Some died. Women of a certain age have stories.
I survived college without being sexually assaulted, although no woman was unaware of the threat. It did not take long to discover that guys who claimed sex as the prerogative of drunkenness were at every fraternity-house party. I remember being taken home early by a date because "there's a girl upstairs." As a 19-year-old sophomore I thought, "That poor girl's in trouble." Oh how my heart aches for her.
In 1973 when Roe came down I was the mother of two babies, planned and deeply wanted. I was lucky. By 1984 I was a lawyer.
In 1995 I was admitted to practice law before the Supreme Court of the United States (SCOTUS). What an honor it was to stand before the nine and be welcomed into the Supreme Court Bar by Justices Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Scouter, Thomas, Ginsburg and Breyer. Since retirement I have tucked away all framed credentials but this one. It hangs where I pass it every morning. It has always made me feel good. Until now.
Now I read Justice Alito's draft opinion overturning Roe with grief and depression. He is joined by Justices Thomas, Gorsuch, Kavanaugh and Barrett, all conservative Republican judges, three of them chosen by former President Trump based upon his promise to end constitutional protection for women who need abortion care.
One basis of Alito's opinion particularly turns legal reasoning on its head. He writes that "a right to abortion is not deeply rooted in the Nation's history and traditions." Of course the same argument can be used to overturn other rights. The constitutional right to interracial marriage is less than 60 years old (Loving v. Virginia, 1967). Contraception made legal in the US two years before (Griswold v. Connecticut, 1965). Hardly deeply rooted. And same-sex marriage was given constitutional protection only 7 years ago (Obergefell v. Hodges, 2015). Barely rooted at all.
The Constitution doesn't mention marriage or contraception. It doesn't mention worker's rights or disability rights. They aren't deeply rooted in our history either. With only white men of property framing the Constitution, most of the rights we rely upon every day are not "deeply rooted." Sadly, what has been embedded in our history is discrimination. We remember that enslaved women and girls were forced to bear their enslaver's offspring. Alito's reasoning is a straight march to the confines of the back of the bus, this time for all girls and women of child-bearing age. Forced pregnancy should be no more lawful than forced sterilization.
The opinion overturning Roe doesn't mention separation of church and state. But that is deeply rooted and is being violated in this draft opinion. State laws criminalizing abortion health care are based upon the religious views of some. In this case, the five who signed on are all products of a Catholic education. I am a Christian whose faith does not dictate that all pregnancies be carried to term; nor does my religion prescribe the wearing of the burqa, with only my eyes visible behind a screen. When religious beliefs of some become the law of the land, church and state are no longer separate.
Many don't believe that protest will change what is coming, as crucial as protest is. Grief and depression likely won't change anything either. But many of us are fearing for all the girls and women who may need need abortion health-care and are in a state that does not value them or their autonomy, a state whose legislators don't care if they are raped by a family member or stranger, or are no more than a child themself, or so many other pregnancy crises.
We have to face this, talk about it, and continue to take all steps to save girls and women from the religious patriarchy of five members of the Supreme Court (including a woman) and of the political right who either think they know what is best for every girl or woman in every situation or don't care. In 1973 Roe v. Wade struck a balance protecting the life and health of the woman and the life of a viable fetus, one that with advanced medical intervention could survive outside the womb. That balance is now gone. Grief and depression is appropriate. But it must be a catalyst. Abortion should be safe and legal. With social safety nets it can also be rare. There's much to do. Nina Naomi
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