Thursday, December 2, 2021

Yesterday Roe V Wade Supreme Court Discussion

Yesterday, a majority of  Supreme Court Justices* signalled that they are prepared to overturn precedent and the decision that allows abortion before fetal viability. Roe V Wade "guaranteed" the right to terminate a pregnancy and Casey determined that states could regulate abortion, but only AFTER fetus was viable (i.e. could live outside the womb). Also remember that all the Judges were asked about this during confirmation hearings and all but Clarence Thomas said this was "settled law".


That "settled law" is the basis for Americans to have control over their own bodies as part of the right to privacy. This is important to remember, since this same right to personal body autonomy is the basis for the federal rules that allow both contraception and gay rights / marriage.

For a moment, let us put aside the decision if a zygote / fetus / personhood is defined at conception or at viability outside the womb or at "quickening" and let's look at the consequences if the federal ruling is overturned. 

If Roe V Wade is overturned:

  •  Women in almost half the country would no longer have the right to an abortion. They will have to take a child, regardless of mother's of child's health, to full term.
  • 22 states will outlaw all abortions immediately. They have laws that do just that called "bounce back" laws. 
  • In about 10 other states, the right to abortion is the law already and it will continue to be legal. (Yes that leaves about 18 states that will have to fight it out in the legislatures.)
  • Also note that the Texas law (which is still standing) means that women are not legally allowed to travel to another state or another country for an abortion. The Supreme Court ahs so far let that stand. So it not outlaws abortion in that states, but makes anyone who helps a woman travel to another state financially liable as well.
  • When asked about women's autonomy, Amy Coney Barrett noted that abortion lawyers in the 1970s said a law that made women take a pregnancy to term would be penalized in terms of jobs, society and equality. ACB argued that new laws allowing any woman to give up her child legally in all 50 states removed that argument. This means states can force a rape victim, victim of incest or a woman who will die if she gives birth to take the fetus to term. Note that the Mississippi law under consideration specifically outlaws abortion for rape, incest or the mother's safety.
  • The basis for gay rights / contraception and other laws will be removed. Note: the justices did say that was "settled law" as well and that they would not be overturned. But these are the exact words they used when asked about abortion rights.
  • Despite a vocal minority that wants to outlaw all abortion all the time, 67% of Americans believe abortion should be legal or legal with restrictions on timing (as we have now). Public opinion should not drive this, but Kavanaugh, Gorsuch and Barrett all quoted public sentiment in outlawing all abortions.

John Roberts wanted to find a compromise to uphold the law in Mississippi, but to also keep abortion legal in some cases. This was not endorsed by any other justice as it would leave a huge legal muddle and not provide direction.

One thing I find endlessly frustrating is  when the question posed to Republicans (remember Sarah Palin - arch conservative) "If your daughter was pregnant with an unwanted child, what would you do?" And the answer all of them have given was, "I would expect her to do the right thing." But if the law is overturned, those daughter will not have any choice at all.

Like most Americans, I think abortion is a terribly com;icated decisions to make, and I do not think any woman who contemplates it has an easy choice or does it lightly. But until a fetus can survive on its own, I think it is a woman's choice. And I don't say this lightly. My cousin had 2 children seriously premature that would have died without extraordinary measures and medical breakthroughs. And they were born at 28 and 29 weeks. I still think it is a woman's choice until 22 weeks  or viability - mwhich has not moved since the Casey decision.

*The majority that will decide to do this were appointed by Presidents that lost the popular vote when they appointed them - i.e. George Bush II and Donald Trump.

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