Why Roe v. Wade is much more than a women’s rights issue

Listen to this article

“It’s hard to not think that Roe is just the first in a line of dominoes,” said Emily Berman, an associate professor of law at the University of Houston.

Berman is one of many legal experts and lawmakers to have expressed concern after a draft opinion leaked to Politico Monday that suggests the Supreme Court is poised to overturn Roe v. Wade when it renders a final ruling on Dobbs v. Jackson Women’s Health Organization.

“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division,” Justice Samuel Alito wrote in the initial draft majority opinion.

The immediate consequence of reversing Roe v. Wade would, of course, be the end of federal protection around individual’s right to obtain safe, private reproductive healthcare. Abortions are the center of attention in the public debate, but experts say repercussions could reach far beyond women’s rights.

The language and logic cited in the draft for overturning Roe could also be applied to several other cases guaranteeing “unenumerated rights” that aren’t “deeply rooted” in the Constitution. This language alone disenfranchises women and people of color, who were considered property of White men in 1776 when those roots took hold.

Furthermore, the implied right to privacy and due process that served as the basis for Roe has since laid the foundation for numerous Supreme Court decisions. Griswold v. Connecticut, which recognized a fundamental right to contraception, Obergefell v. Hodges, which legalized same-sex marriage and Loving v. Virginia, the case that legalized interracial marriage, and several others hang in the balance.

“The Supreme Court has, in the past, reversed precedent and reversed course, but in most of those cases, it has been to expand or uphold individual rights,” Monica Hopkins, ACLU DC executive director said. “Here…it would be one of the first times that they would overturn precedent that would strip constitutional rights from individuals.”

“Once you allow this kind of extreme power to take hold, you have no idea who they will come for next,” Hillary Clinton told Norah O’Donnell this week on CBS Evening News.

Mississippi and Louisiana are among thirteen states that have trigger laws that would go into effect should the court strike down Roe. In Mississippi, that means abortions would be banned with just two exceptions: when there is a formal rape charge and when the procedure is performed to protect the life of the mother. It is not clear where rape victims could turn, however, since the only remaining clinic would be forced to close.

In Louisiana, lawmakers passed the “Abolition of Abortion Act” that would not only ban the practice, but also classify abortion as a homicide crime.  Mothers and healthcare providers could face felony charges, in turn also stripping them of their right to vote.

Although nearly two-thirds of Americans said they are likely to back candidates who support the right to abortion in the November vote, as many as twenty-one states have laws or amendments in place that show an inclination to ban abortion at the first opportunity.

Regardless of where you stand on a woman’s right to bodily autonomy, we should all agree that legislators are not qualified to make broad-stroke medical decisions on behalf of their constituents. Oklahoma State Senator Warren Hamilton (R) exemplified the dangers of lawmakers wielding such power last week when he questioned why the state’s proposed 6-week ban included an exception for ectopic pregnancies.

“A child who is, in fact, living out part of his or her early life as the unfortunate circumstance of being an ectopic pregnancy is…a unique human being with its own DNA,” Hamilton said. “I guess I just don’t understand why we’ve created an exception where we allow those children to be murdered, but not the others.”

An ectopic pregnancy occurs when a fertilized egg grows outside the uterus, usually by implanting in a fallopian tube.  Ectopic pregnancies are medical emergencies that can be life-threatening for the mother, and they are impossible to carry to term.  The condition is fatal for the fetus.  To deny the mother an abortion would essentially sentence her to die along with the pregnancy.

The bill that eventually passed in Oklahoma included exceptions for medical emergencies like ectopic pregnancies, and for rape and incest if they were reported to law enforcement.

Morality is subjective and although abortion is an issue about which many Americans disagree, it is imperative to consider the consequences of surrendering any rights.  Policy-makers on both sides of the isle are working to further an agenda with, presumably, honorable intent.

Now is the time to have the tough conversation about how we can better support women and babies, to find the reasonable middle ground between late-term elective abortions and withholding access to essential medical care women need for their physical and mental health. Our daughters deserve better.