By Ames Sheldon
On Tuesday May 3, the Supreme Court confirmed that a leaked draft ruling provided to Politico to overthrow the landmark decision on Roe v. Wade, which ensured a woman’s right to obtain a legal abortion, was authentic but not yet final.
A final decision from the Supreme Court is expected by the end of June or early in July, when justices will rule on Dobbs v. Jackson Women’s Health Organization, a case on the constitutionality of Mississippi’s law that would ban abortions after 15 weeks of pregnancy. The state of Mississippi went even further, asking the Court to overturn Roe v. Wade, the decision that established a constitutional right to abortion nearly 50 years ago. Defeating Roe v. Wade would mean the Court would brazenly ignore “50 years of its own precedent.”
In the fundamental 1973 Supreme Court decision, justices ruled 7-2 that the due process clause of the 14th Amendment of the U.S. Constitution includes a “right to privacy” that protects the choice to have an abortion. No state could prohibit abortion before the fetus is viable outside the womb, which generally occurs between 23 and 26 weeks of pregnancy.
For most of the first 100 years of American history, early abortions were not illegal before fetal quickening – when the fetus’ movements can be detected. The earliest laws regulating abortion in any way were poison-control measures meant to protect women from dangerous abortifacient drugs that could kill the woman as well as her fetus.
If Roe v. Wade is overturned or gutted, more than half of the states in this country are certain or at least very likely to ban abortion. The Texas Senate Bill 8, which went into effect last September 1, banned abortion after six weeks, when many pregnant people don’t yet realize they are even pregnant. This bill also deputized citizens to enforce the law, suing anyone performing or seeking an abortion, and giving the citizen a $10,000 cash award for doing so. Since then, other states have enacted similar laws. Starting this summer, Oklahoma will make it a felony to perform an abortion in that state. Leaders in conservative states like Arkansas, Georgia, Indiana, and South Dakota plan to call special legislative sessions to ban abortion once the Supreme Court rules.
If the right to abortion is negated, it will be up to the states to decide whether the procedure should be legal in their jurisdiction – this would result in a confusing patchwork of different laws. Without Roe v. Wade, the only states that will allow pregnant people to obtain abortions within their borders are on the Northeast and West coasts as well as Alaska, Colorado, Hawaii, Kansas, Illinois, Minnesota, Nevada, and New Mexico.
At the same time, two-thirds of Americans don’t think Roe should be overturned. Most Americans support at least some form of abortion rights, especially during the early stages of pregnancy, though some people believe there should be certain restrictions.
A ban on abortion could affect hundreds of thousands of pregnant people each year, and of course low-income women and women of color would disproportionately bear the burden of the new restrictions. Many of the people who are anti-abortion believe that they are “saving babies” though they don’t typically provide a home for every child a mother or parent can’t care for; they don’t offer funding for rent or child care, or maternal, neonatal, and pediatric health services.
They don’t seem to be able to imagine all the social, emotional, mental, and physical circumstances that lead to the decision to terminate a pregnancy. Eliminating the right to abortion will mean more deaths and life-altering negative outcomes for pregnant and postpartum folks. It would also inhibit the safe medical management of miscarriages and ectopic pregnancies. Already the maternal mortality rate in the US is the highest among developed nations, which again disproportionately impacts Black and Brown women. Don’t even get me started on the notion of forcing a victim of rape or incest to bear a child against their choice.
The real question turns on when does personhood begin. Is it at fertilization, six weeks later, 15 weeks later, 24 weeks later, or at the safe delivery of a living baby? One could argue that a law like Oklahoma’s, which defines an “unborn child” as “a human fetus or embryo in any stage of gestation from fertility until birth” violates the religious freedoms guaranteed under the First Amendment. The First Amendment states that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The First Amendment separates that which is “church” from that which is “state.” In other words, the “state” is prohibited from imposing its views on matters that belong to “church.”
Surely those who believe that a human life begins at fertilization are basing their opinion on faith– which is a matter of “church” –not based on science or “state.” Eliminating the choice of a pregnant person who doesn’t believe that personhood begins with conception violates their right to free exercise of religion. Most rational people differ on when in a pregnancy a fetus actually becomes a person with a guaranteed right to life.
As an unknown source wrote the following statement, which has gone viral: “How about we treat every young man who wants to buy a gun like every woman to wants to get an abortion—mandatory 48-hour waiting period, parental permission, a note from his doctor proving he understands what he‘s about to do, a video he has to watch about the effects of gun violence. Let’s close down all but one gun shop in every state and make him travel hundreds of miles, take time off work, and stay overnight in a strange town to get a gun. Make him walk through a gauntlet of people holding photos of loved ones who were shot to death, people who call him murderer, and beg him not to buy a gun. It makes more sense to do this with young men and guns than with women and health care, doesn’t it? No woman getting an abortion has killed a room full of people in seconds.
And then there’s contraception…
Duke University’s School of Law professor Neil Siegel states that the leaked draft opinion on abortion rights could very well open challenges to other legal rights to privacy such as contraception, same-sex marriage, interracial marriage. In other words, birth control could very well be on the chopping block as well.
It’s easy to forget what life was like for women before birth control was readily accessible. In Massachusetts, it took my great-grandaunt Blanche Ames, my grandmother, and many other birth control advocates 100 years to ensure that all women have legal access to birth control.
My historical novel ‘Lemons in the Garden of Love‘ provides an engrossing reminder of how far we’ve come in our fight for equality and reproductive health in this country. As one reviewer said, in this novel, readers “come away with a much deeper understanding of the depths and human costs of the long struggle for reproductive rights and its centrality to the unfinished fight for gender equality.” We can’t go backwards! Without reproductive freedom, how can anyone determine the course of their own life?
Women have been trying to gain equal rights ever since the founding of this country. But the fight for equality and control over our bodies is far from over. According to House Speaker Nancy Pelosi, this coming “election just turned into the biggest fight for women’s rights in our nation’s history.”
It is critically important now that we vote for pro-choice candidates in November.
Formerly a journalist and lead author of WOMEN’S HISTORY SOURCES: A GUIDE TO ARCHIVES AND MANUSCRIPT COLLECTIONS IN THE UNITED STATES (R.R. Bowker), Ames Sheldon is also the author of three award-winning historical novels: ELEANOR’S WARS, DON’T PUT THE BOATS AWAY, and LEMONS IN THJE GARDEN OF LOVE. See her website amessheldon.com for more information.
