SCOTUS’ leaked decision ignores half the human race
POLITICO leaked a draft decision on May 2 that makes it clear the Supreme Court plans to overturn Roe v Wade. What’s enraging is that women’s health, freedom, and autonomy over our own bodies isn’t mentioned anywhere.
The decision is rife with assumptions and disingenuous allusions to history, both the history of abortion and the history of laws referring to it. Then there’s the crafty rewriting or re-interpreting of public opinion and what influences it, like on page 6 where SCOTUS (opinion written by Alito) calls Roe “egregiously wrong” and claims that law and Casey, the followup decision that created the “undue burden” standard, “enflamed debate.”
Right there, this decision makes clear it’s perfectly OK with Alito, who wrote it, to claim a #SCOTUS decision caused division within America, not the legislators who fought abortion and the party leaders and noisy advocates for forced birth.
It’s also abundantly clear that this decision isn’t founded in any kind of precedent or legal standard, but his (and Gorsuch’s and Kavanaugh’s and Barrett’s) beliefs; he cites ad nauseam the text of the #Mississippi law that came before the court. Many references to unborn human beings and unborn children, but no reference at all to the woman who is the “host” of that creature.
Note the language there about how abortion is “dangerous for the maternal patient” (still not calling her a woman), which decades of legal abortion have established is simply not true. Legal medical abortions are safer than childbirth for many, if not most, women.
Note that I intentionally refer to women here, leaving out the potential “maternal patients” who are trans men. That’s because the ideas behind these anti-choice laws are to keep cisgender women in their place — at home, pregnant, cooking dinner and cleaning house. The people behind these laws that increasingly criminalize a medical procedure are not thinking about the rare instance of a trans person becoming pregnant. If they considered that possibility, I’d bet their decisions on abortion might change.
In fact, to that point about a person’s sexuality, this decision gives a disturbing hint about other decisions the Court might make going forward with its Trump-appointed conservative majority. On page 9, it disparages Roe as treating the Constitution “remarkably loose”-ly, and tosses in the idea of a right to privacy not being Constitutional either. That right to privacy was critical to laws that made gay marriage legal, and contraceptives legal, because both decisions determined that what consenting adults do in private relationships is their own business. Overturning both decisions is on the agenda of the right-wing folks in the U.S. who want us all to go back to a time when men were men, women were women, and ne’er the twain shall meet. Except in the bedroom and kitchen.
Then there’s the idea that protecting a woman’s right to control her body is part of the Equal Protection Clause of the Fourteenth Amendment. Alito argues that “a State’s regulation of abortion is not a sex-based classification,” as if biological men could get pregnant (back to why I’m referring to women when I talk about these laws).
What’s absolutely infuriating is that Alito keeps referring to history, and not just judicial history.
“a fundamental right must be “‘objectively, deeply rooted in this Nation’s history and tradition,’ ” he says on page 13, blithely ignoring the decades when historical legal precedent kept abortion legal. British Common Law applied to the Colonies, and that law said that abortion was legal before “quickening,” when a woman felt the movement of a fetus within her body. Note that said law privileged the woman, and recognized that she and she lone knew what was going on inside her.
Alito uses a select application of the Common Law to bolster his claim that abortion has always been illegal, then undercuts his own argument by admitting, reluctantly, that those laws applied after quickening.
The “eminent common-law authorities (Blackstone, Coke, Hale, and the like),” Kahler v. Kansas, 589 U.S. __, — _ (2020) (slip op., at 7), all describe abortion after quickening as criminal. (p. 16) (emphasis mine)
writing near the time of the adoption of our Constitution, Blackstone explained that abortion of a “quick” child was “by the ancient law homicide or manslaughter” (citing Bracton), and at least “a very heinous misdemeanor” (citing Coke).” 1 Blackstone, Commentaries on the Laws of England *129 — *130 (7th ed. 1775) (Blackstone). (p. 17)
Then he says “Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law.” So just because it wasn’t illegal to bring on menses, as most midwives and women referred to an early abortion caused by herbs or other means, doesn’t mean it was LEGAL. Interesting grey area, there; when does “not illegal” mean “not legal either”?
I’m still reading the 98-page draft, but you get that the argument being set out could have been written by a far-right-wing Dominionist. Here’s the story on the leaked draft; it gives more detail about the leak and links to the PDF of the decision as well.