Roe Is Dead

“So, women had more rights fifty years ago than today?”

Asked my wife this morning after hearing of the leaked Supreme Court decision overturning Roe v Wade. Brilliant at math, she dislikes figuring in her head. She asked, “How old would Roe be today?”

“Forty-nine,” I replied.

“So women had more rights fifty years ago than they do today?”

I thought it over: Roe, sure; Title IX of the Civil Rights Act was passed in ’72; the ERA seemed like a shoo-in… so, maybe yes.

Presiding over that period was an all-male Supreme Court (having never known a woman justice), a Congress with 15 women out of 535 members, and a Presidency … well you get the idea.

Today almost 30% of 117th Congress are women; SCOTUS chambers have a women’s restroom, and the Presidency … maybe, someday (there is still Edith Wilson, right?).

In the private sector the pay-gender gap has narrowed from about $.69 to $.84 for every dollar a man earns (yet also seems to have plateaued according to Pew Research); only two percent of Fortune 500 CEOs are women; yet according to Forbes, women-led startups are flourishing.

Of course, Trump and Bush, neither of whom was supposed to be in office per the will of actual voters, did a lot of damage, placing four justices between them, including Bush-nominee and anti-Roe author Samuel Alito. With arch-conservatives Scalia and Rehnquist gone, all they needed was that master of inertia, Clarence Thomas, to tip the scales. Chief Justice John Roberts is the rancid icing on a very foul cake indeed.

Of particular issue was Roe itself.

It’s a negative ruling, a restriction on what the states may do. But then so is the First Amendment. It restricts Congress from passing laws with respect to official religion or restriction of speech or the press. That can work, but only as law. Roe wasn’t part of the Constitution. It relied on what, even its proponents admitted, was a liberal interpretation of the 14th Amendment, and its equal protection clause: The states could not interpose themselves into a private decision between a woman and her healthcare provider.

Stare decisis, the doctrine of following precedent, carried it most of the rest of the way, huffing and wheezing past Planned Parenthood of Eastern Pennsylvania vs. Casey.

Alito, in fact, rationalizes that in 1992’s PP v Casey four of nine justices wanted to overturn Roe, but that stare decisis showed up as the ultimate party pooper, restricting them to just a nick here, or a slice there.

No longer.

“…Stare decisis does not compel unending adherence to Roe’s abuse of judicial authority,” Alito writes.

Surely it doesn’t forbid it, either?

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Alito continues.

Suppose we rephrase that slightly:

It is time to heed the Constitution and return the issue of women’s reproductive liberty to the people’s elected representatives.

Sound okay?

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion [why would it? Were there women when the Constitution was drafted & adopted? author’s note], and no such right is implicitly protected by any constitutional provision, including the one on which defender of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.

Reads the operative paragraph.

It’s been suggested that overturning Roe might lead us back even further, to state or federal regulation of contraception, miscegenation, or mixed-race marriage. Alito tries to carve abortion out from those issues, calling them “fundamentally different” because Roe destroys what the law characterizes as an “unborn human being.”

He goes on to praise Mississippi legislators for making a series of “factual findings” and noting, somewhat disingenuously, that only six other countries besides the US permit abortion on demand. The dishonesty in that is breathtaking. Since when has SCOTUS used Europe’s routine condemnation of capital punishment here as a basis for banning or restricting the death penalty?

Furthermore, laws in many of the countries that don’t include the six are really “soft” restrictions on abortion, allowing exceptions due to mental health (as well as physical health) and/or economic hardship.

What now?

Activists have already gathered in front of the Supreme Court building in DC. To what purpose, I couldn’t say. Unless we learn this leak is somehow a hoax, and it turns out the justices are holding hands, singing “Stare decisis forever!!! the damage is done.

Never mind the damned court. It’s time to work on legislators.

You know, the people who ought to have got off their asses in the first place and made all reproductive services easily available to all women. The ball’s in their court now.

And remember Joe Biden?

Deeply unpopular right now, and probably for the remainder of his single term in office. Unless… unless he somehow gets off his ass and helps to push a law through Congress making those reproductive rights I mentioned available the way Lincoln pushed through the 13th amendment (oh, yes he did!).

Pols haven’t wanted to touch abortion because why would they? Why goose a sleeping tiger? Roe was in place. As Stephen King wrote in Insomnia, it always would be. Stephen King can’t be wrong. So why alienate the right-to-life-begins-at-conception-and-ends-at-birth crowd without good reason?

Only now the reason is good.

Imagine the response of grateful women and the men who support them, or just happen to support liberty. Joe has the chance to be remembered for something more than not being Donald Trump.

And, one more thing.

No woman can call herself free who does not own and control her own body.

Thus spoke Planned Parenthood founder Margaret Sanger, damned today by many progressives as a proto-Nazi racist eugenicist, mainly because one or two authors picked up on anti-PP propaganda from the anti-choice organization Family Research Council. Sanger opposed abortion, hoping contraception would make it unnecessary. She wasn’t a racist. She addressed the KKK because, like it or not, the Klan was a big deal in the 20s. They had the organization to get her message out and that is all she cared about.

Care about it some more now.

And stop buying into anti-choice bullshit.