Analysis Social Justice

The Handmaid’s Tale is Reality

Sherri Donovan discusses the terrifying consequences of the Supreme Court’s ruling against abortion.

| Sherri Donovan |

I remember meeting Supreme Court Justice Brennan in his chambers at the Supreme Court when I was in law school. With his eyes sparkling brightly, he told me that it was letters from women around the country that inspired his vote and determination for Roe v. Wade. My late term abortion was traumatic enough when a hole in the stomach of the fetus was discovered. I can not imagine if I would have been forced to carry to full term only to give birth to a dead fetus. I am forever grateful to a Planned Parenthood clinic in Vermont that assisted me with an early abortion. My friend Donna had an ectopic pregnancy and would have been dead if not for her abortion. My mother was forced to do a back alley dangerous abortion in Puerto Rico because abortion was not legal. My daughter is distraught that she and possible children in the future will have less rights than her mother and their grandmother.

Dobbs v. Jackson Women’s Health Organization will go down in history and herstory as a catastrophic Supreme Court decision. I was appalled that Alito, who writes for the majority compares overturning Plessy v. Ferguson which legalized race segregation to the Dobbs decision which overturns Roe v. Wade and permits the restriction of a woman’s rights to control her own body.

The Dobbs majority completely ignores the Women’s rights movement and advances over the last century and recent decades. It completely ignores that it is a matter of healthcare, life, liberty and privacy for women. The majority opinion refuses to recognize that the clear majority of the US population is in favor of pro-choice. More than two-thirds of Americans are in favor of retaining Roe. One quarter of American women will have an abortion before the age of 45.

The Supreme Court does not mention that this decision is out of step with the rest of the world.  Over the past several decades, more than 50 countries throughout Asia, Africa, Europe and the Americas have liberalized their abortion laws. Latin American countries have more reproductive rights than the women in the USA. Only the United States, Poland and Nicaragua have reduced abortion access in the 21st century. Canada has decriminalized abortion at any point in a pregnancy. Most Western European countries impose restrictions on abortion after 12 to 14 weeks, but they often have liberal exceptions to those time limits, including to prevent harm to a woman’s physical or mental health.

The Court without unanimous support overturns precedent of two Supreme Court decisions, Roe v. Wade, and Casey v. Planned Parenthood and more than twenty other cases reaffirming or applying the constitutional right to abortion. There is no change in law or fact that necessitated this drastic, action. As the dissent in Dobbs makes clear, “Casey is a precedent about precedent. It reviewed the same arguments made here in support of overruling Roe, and it found that doing so was not warranted.”

The Alito decision is stuck in the criminal earlier history of abortion. Women were chattel in this country and could not own property, vote or obtain a credit card or law license. How far back would these extreme right judges and appointees of Trump go?  The dissent points out that, “The majority makes this change based on the question: Did the reproductive right recognized in Roe and Casey exist in “1868, the year when the Fourteenth Amendment was Ratified? … Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second class citizenship”. The dissent continues, “…our point is different: It is that applications of liberty and equality can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents. Roe and Casey fit neatly into a long line of decisions protecting from government intrusion a wealth of private choices about family matters, child rearing, intimate relationships, and procreation. … In the Fourteenth Amendment’s terms, it takes away her [a woman’s] liberty.  In conclusion, Kagan, Sotomayor and Breyer state “With sorrow – for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection – we dissent.”

According to the majority of the US Supreme Court, guns have more rights than women over their bodies. The hypocrisy and blatant political nature of the Dobbs decision is clear. In their opinion June 23, 2022 forcing New York and other densely populated states to allow more handguns in public and causing more danger to the public, the conservative majority, led by Justice Clarence Thomas, argued that medieval law imposing arms restrictions – specifically, the 1328 Statute of Northampton – “has little bearing on the Second Amendment” because it was “enacted… more than 450 years before the ratification of the Constitution.” Yet in their ruling the next day, June 24, 2022 in Dobbs v. Jackson Women’s Health, setting women’s rights back half a century the conservative justices, led by Samuel Alito (who was also in the guns majority) and joined by Thomas, argued precisely the opposite. They justified abortion bans by citing, among others, “Henry de Bracton’s 13th-century treatise.” That was written circa 1250 and referred to monsters, duels, burning at the stake – and to women as property, “inferior” to men. The moral hypocrisy about helping families and children is noted when considering that, a state-by-state analysis by public health professionals shows that States with the most restrictive abortion policies also continue to invest the least in women’s and children’s health, as the Dobbs dissent exemplifies.

The dissent begins by stating, “For half a century, Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), have protected the liberty and equality of women. Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions… Today’s Court, that is, does not think there is anything of constitutional significance attached to a woman’s control of her body and the path of her life”.  The dissenting opinion written jointly by Justices Sonia Sotomayor, Elana Kagan and Stephen Breyer states that the Court is “rescinding an individual right in its entirety and conferring it on the State, an action the Court takes for the first time in history.” The Dobbs dissent points out that the majority’s brazen rejection of stare decisis, respect for precedent, “breaches a core rule-of-law principle, designed to promote constancy in the law.” The dissent said the majority’s refusal to address real world consequences “reveals how little it knows or cares about women’s lives or about the suffering its decision will cause.” The dissent raised questions about rape, incest, threats to a mother’s life, interstate travel for abortion, morning-after pills, IUDs, and in vitro fertilization. The dissent writes, “Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest. If that happens, “the views of [an individual State’s] citizens” will not matter … The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment,”

Even Chief Justice Roberts admonished fellow conservatives for cavalierly overturning the Roe v. Wade super-precedent. “Surely we should adhere closely to principles of judicial restraint here, where the broader path the court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed” Roberts wrote, The majority’s “dramatic and consequential ruling is unnecessary,” and “a serious jolt to the legal system”.

The concurrence of Clarence Thomas makes specific reference to overturning other well established precedents that rely on the 14th Amendment. He cites Griswald which concerns the right to use birth control; Lawrence v. Texas protecting consensual adult sex and Obergefell granting the right to same sex marriage. How peculiar he does not mention Loving v Virginia which relies on the same constitutional principles and protects interracial marriage. Justice Clarence Thomas’s separate concurrence made crystal clear that he would indeed do away with the entire substantive due-process doctrine on which the right to abortion rested. As the Justices Sotomayor, Kagan & Breyer sharply note in the dissent, “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”

Pregnant women, health care providers, pharmacists, as well as possibly volunteers, family members, friends and anyone who has significant contact may be investigated, or arrested as suspect if a pregnancy does not end as a healthy birth. Surveillance will certainly increase.  Half the States will move to outlaw or restrict abortion. Will there be trials and investigations if a miscarriage is murder? In certain States, Women now risk criminal prosecution for ordering a day after pill. Health care providers will now have the dilemma of letting women die or suffer serious injury or risk loss of their license or a lawsuit if they perform an abortion. Poor, Black & women of color will be punished the most. Approximately fifty-two percent of women of child bearing age will face abortion restrictions.  During the past four years, eleven states have passed abortion bans that contain no exceptions for rape or incest.  In Texas, already, children aged nine, ten, and eleven, who don’t yet understand what sex and abuse are, face forced pregnancy and childbirth after being raped. States might also ban other reproductive practices, such as in vitro fertilization or the use of intrauterine devices.

What is to be done?

  1. Utilize your First Amendment right to protest.
  2. Join and support reproductive rights organizations and organizations assisting women in States that restrict abortion and other reproductive rights/ birth control options.
  3. Support electoral candidates that advocate for abortion rights.
  4. Get active in the mid-term elections.
  5. Advocate for the passage of federal legislation to codify Roe.
  6. Advocate for the immediate addition of judges to the Supreme Court and other judicial reforms.
  7. Learn and teach women how to protect their privacy to avoid unintentionally providing possible evidence to prosecutors who can get access to information through health care institutions and technological devices.  
  8. Utilize and share the following resources:
  9. If you need to find a clinic or help people find a clinic: 

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