Column: That stench you smell? It’s just the Supreme Court’s funeral pyre for women’s rights
It was impossible to listen to the Supreme Court’s oral arguments over a restrictive Mississippi abortion law without wondering how a woman who has experienced pregnancy and childbirth so many times could be so cavalier about it.
On Wednesday, newly installed Justice Amy Coney Barrett suggested it’s no big whoop to deny a woman an abortion because … adoption!
For the record:
3:06 p.m. Dec. 4, 2021An earlier version of this column referred to the court case Casey vs. Planned Parenthood. The case was Planned Parenthood vs. Casey.
If the whole point of abortion is to save a woman from the burdens of parenting, implied the justice, then she can avoid them by just plopping down her newborn at the nearest firehouse door.
“Why don’t the safe haven laws take care of that problem?” wondered Barrett. “It doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden.”
I guess it makes sense that the dystopian idea of forcing women into servitude as child-bearing vessels would be promulgated by a mother of seven with a sweet-sounding voice. This is patriarchy with a pretty face.
Why should the white, upper-middle-class Barrett trouble herself that women are about 14 times more likely to die during or after childbirth than from complications of an abortion?
Or that in Mississippi, it is 75 times more dangerous to give birth than it is to have a first- or second-trimester abortion, according to Julie Rikelman, the Center for Reproductive Rights attorney who argued against the law on behalf of the state’s only remaining abortion clinic.
“For a state to take control of a woman’s body and demand that she go through pregnancy and childbirth, with all the physical risks and life-altering consequences that brings, is a fundamental deprivation of her liberty,” Rikelman told the court.
The future of legal abortion is at stake in Dobbs vs. Jackson Women’s Health, a case that was prompted by Mississippi’s new law banning abortions after 15 weeks. The cutoff is not just arbitrary; it flies in the face of the long-established standard that a state may intervene in a woman’s abortion only after a fetus has attained viability, or the ability to live outside the womb, at around 24 weeks.
If the court upholds the Mississippi law, as most court watchers expect, the floodgates will open to a deluge of state laws poised to end the procedure altogether.
The court’s unquestionably anti-choice supermajority will have ripped away a right that American families have enjoyed and relied upon for half a century.
Not for any good legal reason, but because most of the right-wing justices personally oppose abortion.
Make no mistake — outlawing abortion at this point in American history would be a purely political decision by the Supreme Court, not a constitutional one.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” asked a stony Justice Sonia Sotomayor.
Her conservative colleagues turned themselves into pretzels to justify overturning the watershed precedents of Roe vs. Wade, which legalized abortion in 1973, and Planned Parenthood vs. Casey, which reaffirmed it in 1992.
It was bad enough when Barrett suggested that bringing an unwanted pregnancy to term was not much of an imposition. But then Justice Brett M. Kavanaugh suggested it is the court’s role to be “neutral” on the matter, and that the court has wrongly been “forced … to pick sides on the most contentious social debate in American life.”
At that point, I actually screamed at my radio: Dude! You are a judge! It is literally your job to pick sides!
Anyway, noted Rikelman, far more calmly than I ever could have: “I don’t think it would be a neutral position. The Constitution provides a guarantee of liberty … if states can take control of women’s bodies and force them to endure months of pregnancy and childbirth, then they will never have equal status under the Constitution.”
Kavanaugh also suggested the court need not follow the doctrine of stare decisis — the custom of respecting precedent — since the Supreme Court has reversed itself many times over the decades. I would have spit my beer if I’d been drinking one. (Remember his contentious confirmation hearing in 2018, when Maine Republican Sen. Susan Collins, who favors abortion rights, cast a key vote to confirm Kavanaugh after she assured the world he respects precedent and viewed Roe as “settled law”?)
Sotomayor also bridled at Kavanaugh’s disingenuous distortion of court history.
Any time the court has overturned a watershed precedent, she suggested, the result has always been meant to expand personal liberties, not shrink them.
Kavanaugh’s “long litany of cases,” as Sotomayor put it, “involved us recognizing and overturning state control over issues that we said belong to individuals.”
Back in 1992, when it reaffirmed Roe, the court said that previous judicial decisions should be respected unless they egregiously violate principles of justice. Such was the case when the racist doctrine of separate but equal was overturned or, later, when laws prohibiting gay marriage were deemed unconstitutional.
“Men and women of good conscience can disagree ... about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage,” the justices wrote at the time. “Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”
That was as true 30 years ago as it is today.
The only thing that has changed is the ideological composition of the Supreme Court.
As Justice Sotomayor fears, the stench will only get worse.
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