“Abortion presents a profound moral issue on which Americans hold sharply conflicting views.” So begins a draft opinion by Associate Justice Samuel Alito, leaked from the US Supreme Court on May 2, 2022. If confirmed, this judgment would overrule the Court’s past decisions to establish the right to access abortion. In Alito’s words, “the authority to regulate abortion must be returned to the people and their elected representatives”. The Court’s opinion rests on a strictly historical interpretation of the US Constitution: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” His extraordinary text repeatedly equates abortion with murder.
The Due Process clause of the 14th Amendment to the Constitution has been the main foundation underpinning the right of American women to an abortion. That 1868 Amendment was passed during the period of American Reconstruction, when states’ powers were being subjected to certain limitations. The goal of the Amendment was to prevent states from unduly restricting the freedoms of their citizens. That guarantee of personal liberty, so the Supreme Court had previously held, extended to pregnant women, with qualifications, who decided to seek an abortion. Alito rejected that reasoning. He argued that for any right not mentioned in the Constitution to be protected, it must be shown to have had deep roots in the nation’s history and tradition. Abortion does not fulfill that test. Worse, roe was an exercise in “raw judicial power”, it “short-circuited the democratic process”, and it was “egregiously wrong” from the very beginning. It was now time, according to Alito, “to set the record straight”.
What is so shocking, inhuman, and irrational about this draft opinion is that the Court is basing its decision on an 18th century document ignorant of 21st century realities for women. History and tradition can be respected, but they must only be partial guides. The law should be able to adapt to new and previously unanticipated challenges and predicaments. Although Alito gives an exhaustive legal history of abortion, he utterly fails to consider the health of women today who seek abortion. Unintended pregnancy and abortion are universal phenomena. Worldwide, around 120 million unintended pregnancies occur annually. Of these, three-fifths end in abortion. And of these, some 55% are estimated to be safe—that is, completed using a medically recommended method and performed by a trained provider. This leaves 33 million women undergoing unsafe abortions, their lives put at risk because laws restrict access to safe abortion services.
In the USA, Black women have an unintended pregnancy rate double that of non-Hispanic White women. And the maternal mortality rate for Black women, to which unsafe abortion is an important contributor, is almost three times higher than for white women. These sharp racial and class disparities need urgent solutions, not more legal barriers. The fact is that if the US Supreme Court confirms its draft decision, women will die. The Justices who vote to strike down roe will not succeed in ending abortion, they will only succeed in ending safe abortion. Alito and his supporters will have women’s blood on their hands.
The 2018 Guttmacher–lancet Commission on Sexual and Reproductive Health and Rights For All concluded that these rights, which included the right to safe abortion services and the treatment of complications from unsafe abortion, were central to any conception of a woman’s wellbeing and gender equality. The availability of an essential package of sexual and reproductive health interventions should be a fundamental right for all women—including, comprehensive sexuality education; access to modern contraceptives; safe abortion services; prevention and treatment of HIV and other sexually transmissible diseases; prevention and treatment for gender-based violence; counseling for sexual health; and services for infertility. What kind of society has the USA become when a small group of Justices is allowed to harm women, their families, and their communities that they have been appointed to protect?
The route forward is unclear and perilous. This Court’s argument suggests possible future attacks on a raft of other civil rights, from marriage equality to contraception. Despite urgent pleas from some members of Congress, the long-overdue encoding of roe into law by the Biden administration is highly unlikely. That a court is about to force through a health policy supported by only 39% of Americans is dysfunctional. Indeed, if the Court denies women the right to safe abortion, it will be a judicial endorsement of state control over women—a breathtaking setback for the health and rights of women, one that will have global reverberations.
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