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  • Jason DiPane

Sunset is Coming for Roe v. Wade



Justice Alito said as much in a first draft opinion. How do we know this? The opinion was leaked. The unprecedented nature of such a leak is astounding for such a major case and yet it happened. The whys are easy to speculate but that's the smoke and mirrors at play in our country politically and in too many of our courts.

Arguments about who leaked and how.

A renewed clamor for term limits and expanding SCOTUS.

Accusations of activist judges legislating from the bench will fly.

All of these amount to nothing and are used to one end or another by both parties.

The problem is that those arguments are only a distraction from the real turmoil women and girls in our country will face. The decisions will be returned to state legislatures to regulate or prohibit abortions. Not all states will attempt to outlaw the safe and necessary procedure. Those who don't will afford access to those who can afford to travel to such reasonable states. That is, those persons who can afford to do so.

For the remaining majority, choices will be made in the quiet of a home or mind to accept their circumstances, possibly with fatal results because of unknown health issues as others make decisions to accept the risk of fatality in trusting someone to do for them what a doctor is no longer legally allowed to do.

I'll say it again. MAKE NO MISTAKE.

Outlawing abortion DOES NOT STOP ABORTIONS.

Outlawing abortion WILL RESULT IN DEATHS OF WOMEN AND GIRLS who lacked a safe medical option.

This world had seen centuries of women dying from unplanned pregnancies as well as backroom abortions. Until 50 years ago, the options were there for those desperate enough to take the risk. Many were taken by charlatans with "snake oil" remedies to an unplanned and unwanted pregnancy. Most were lucky in that nothing happened. Too many were given a "cure" that would end their own lives. That doesn't even take into account the use of unsterilized "instruments" in untrained hands in unsanitary facilities.

This was a tragedy that Roe v. Wade corrected. Legally. Though Justice Alito wrote that by his reasoning the decision of SCOTUS in 1973 was wrong, it's what all judicial decisions are, an opinion.

"Roe’s “survey of history ranged from the constitutionally irrelevant to the plainly incorrect,” Alito continues, adding that its reasoning was “exceptionally weak,” and that the original decision has had “damaging consequences.” [SOURCE]

His argument that there is no "right to an abortion" in the Constitution can, is and will be seen as ranging from "constitutionally irrelevant to the plainly incorrect" as well. Am I a Constitutional lawyer? No. But the Constitution wasn't written by just lawyers either. As an "outsider" my perception is shared by many, possibly most. The Constitution was meant to evolve with society as it advanced, grew, learned and changed. Can I be certain of that? With the simplest of history education, I can.

Things not present in the Constitution as rights at the time of its original acceptance.

1. The freedom and rights of Africans, kidnapped and treated as property and not people.

2. The right to vote as a woman and citizen of the United States.

Those were changed. Painfully and begrudgingly slow but still changed. This is no different so where do we go from here. First and only choice is fight for the candidates who believe that a woman's bodily autonomy includes ALL REPRODUCTIVE CARE. Why "ALL"? Because this decision will open the floodgates for state legislation on other aspects of women's reproductive care.

  • Contraception

  • Option of tubal ligation

  • Prevention of surgical intervention in ectopic pregnancies which have a 2-4/1000 mortality rate untreated

  • Inducement with Pitocin (oxytocin) in cases of in utero fetal death and possibly even in cases where controlled start of labor is necessitated by previous risks of childbirth (pre-eclampsia)

These will be targeted by state legislatures and some are already in the process of writing the bills.

So how do we solve this? Simple. Vote in each and every election you possibly can. We need legislators not seen as proponents of abortion but as advocates of women and their autonomy. It will be the state elections that matter most to some and Congressional races to others. The plain truth is we need both. We need to control or limit the harm that can be done by state legislators in the moment but we also need members of Congress working on an amendment to end this argument once and for all. It will not be easy.

Getting a bill through both houses of Congress is a heavy lift on most issues so an amendment is going to seem insurmountable. Then we face the ratification by the states; an even heavier lift but we have to try. We cannot simply accept that this is the way it will be without attempting to right the course of our country.

Then we we can talk about things like

  • Judicial appointment minimum qualifications like actual courtroom experience

  • Term limits to ensure we don't suffer a "brain drain" by appointing youth over experience or keeping someone on a bench too long with too much authority

  • Equal codes of ethics regulations that apply to all federal judges and justices

There are others but I'll be happy to look at those AFTER we fix what will be one of the greatest reversals of a decision and the biggest setback to women's rights since the Constitution was drafted and left them out.

And as a final note. Justice Alito's phrase choice of "has had "damaging consequences" betrays that he is no less an activist member of the judiciary than any other. This "leak" was the high sign to those that share not the legal opinion but a "faith based" opinion. Politics is never far from the bench of SCOTUS and it's become much worse since the 1990's. The justices who upheld Roe v. Wade who Justice Alito described and said, "ranged from the constitutionally irrelevant to the plainly incorrect" are the following.

  • Chief Justice Warren E. Burger - lifelong Republican who helped ensure Eisenhower's nomination

  • Assoc. Justice William O. Douglas - seen as the most "liberal" member but that was when being a civil libertarian meant something

  • Assoc. Justice William J. Brennan Jr. - another liberal but nominated by President Eisenhower

  • Assoc. Justice Potter Stewart - a staunch Republican, nominated by President Eisenhower but a believer in the actual "rule of law" and not just the talking point

  • Assoc. Justice Byron White - a Democrat nominated by President Kennedy

  • Assoc. Justice Thurgood Marshall - nominated by President Johnson and the first African American justice

  • Assoc. Justice Harry Blackmun - another Republican and nominee of President Eisenhower's

  • Assoc. Justice Lewis F. Powell Jr. - another Democrat nominated by a Republican, President Nixon

  • Assoc. Justice William Rehnquist - a STAUNCH conservative who believed in federalism, PERIOD.

This WAS NOT a "liberal court" by any stretch of the imagination. Those nine MEN, in a vote of 7-2, upheld the case of Roe v. Wade for the plaintiff. Now you need to know that in those days a 7-2 vote was as close as you'd get to unanimous. Seven out of that group of men said the 14th Amendment's Due Process Clause provided a "right to privacy" that a woman had a right to exercise in her own medical decisions.

Those ol' boys upheld that?

Landmark doesn't adequately cover it.

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