“Liberty is the power to do everything that does not interfere with the rights of others: thus, the exercise of the natural rights of every individual has no limits save those that assure to other members of society the enjoyment of the same rights.”
Thomas Paine
If the recently released draft opinion in Dodd v. Jackson Women’s Health is reflective of the Supreme Court’s ultimate decision, a women’s constitutional right to have an abortion will be overturned. Going forward, states will be able to enact their own laws with respect to abortion.
This apparent decision should come as no surprise as former president Trump made it clear in an interview with Chris Wallace, “I am putting pro-life justices on the court.” During their confirmation hearings, his appointees, Gorsuch, Kavanaugh and Comey-Barrett, disingenuously suggested, publicly and/or privately with some senators, they considered Roe v. Wade “settled law”.
Rightly or wrongly, such a decision will further undermine the public’s perception and confidence the Judiciary, and Supreme Court in particular, as strictly non-partisan. It will also result in less than equal protection for reproductive freedom for women in many states.
Alito argued “Roe and Casey must be overruled” as “no such right [to abortion] is implicitly protected by any constitutional provision” including “the Due Process Clause of the Fourteenth Amendment”.
Interestingly, nowhere in the Constitution are the words, “privacy”, “education”, “health care”, “contraception”, “marriage” or other “unenumerated” rights broadly recognized pursuant to the Fourteenth Amendment.
Alito suggests unlike other unenumerated rights, abortion is unique as it involves more than one individual. Yet, he also relies heavily on Washington v. Glucksberg which says unenumerated rights must be “deeply rooted in this Nation’s history and tradition”, which abortion is clearly not.
Reliance on Glucksberg opens the door for overturning other socially controversial rulings guaranteeing an individual’s right to interracial marriage (Loving v. Virginia), obtaining contraceptives (Griswold v. Connecticut), engaging in private, consensual sexual behaviors (Lawrence v. Texas), entering into a same-sex marriage (Obergefell v.Hodges) and for some extremists eliminating the prohibition against segregated schools (Brown v. Board of Education); although all are long-term political goals of Christian Nationalists and their vision of a theocratic America.
They and other conservatives, who vocally profess to stand for individual freedoms, are the first to try to limit the liberties of others whose views are contrary to their fundamentalist beliefs.
Many states have already passed restrictive laws and others outright bans on abortion in the event Roe is overturned. Draconian consequences include sizeable fines, lengthy prison sentences and suspension of physicians’ medical licenses for people who perform abortions.
Some states are also trying to prevent their residents from obtaining FDA-approved drugs for self-induced “medication abortions” even if prescribed by a doctor and purchased from out-of-state suppliers by mail.
More alarming are laws permitting, actually encouraging, individuals to report even just suspicions their neighbors, friends or even people they do not know, including those in other states where abortions services may be legal, who may have performed or in any way assisted someone to have an abortion; with incentives of up to $10,000 plus court costs if those “accused” were found guilty. As the Court refused to hear a challenge to Texas’ law; the constitutionality of such stealth vigilantism is unclear.
These shades of the Salem Witch Trials smack of a society most Americans have thought could only exist in totalitarian states.
As the Due Process Clause, the Privileges or Immunities Clause, the Citizenship Clause and the Dormant Commerce Clause of the Constitution prohibit states from exercising their jurisdiction beyond their borders, prosecutions of people for activities occurring in other states remains questionable.
In a free society, individuals must have the right to act as they please unless their actions interfere with or impair the rights of others. A woman’s right to make choices relative to her body should be left to her, her family, her doctors and her personal faith … not to politicians nor the courts!
