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Leaked U.S. Supreme Court draft decision has poor legal reasoning and terrifying consequences

With Roe v. Wade’s imminent nullification, 26 U.S. states are set to place bans on abortion. This blatant attack on bodily autonomy places more than half of U.S. states alongside the 24 other nations that have banned abortion entirely. When Roe v. Wade is overturned, it will be yet another human rights violation committed by the United States government. By adding to the 90 million women of reproductive age worldwide who have been stripped of a fundamental right, the U.S. government is once again showing how little it cares about its citizens’ rights, wellbeing, and liberty.

 

By effectively banning abortion in more than half of the United States, the Supreme Court will be exposing lower income families to unnecessary and unwanted financial hardship. Many families are spending up to 20 percent of their earnings on childcare, and childcare costs are up 41 percent since the start of the pandemic. The overall cost of raising a child until the age of 18 was estimated to be $233,610 in 2017, and that doesn’t include the massive expense of a college education. By restricting abortion rights, American citizens will be forced to bear the massive financial burden of raising a child. Like a Colorado GOP group said, “Republicans hate poor people,” and lower income families will be even more affected by the impending abortion ban as they may not be able to afford having a child.

 

Despite what certain fascist propaganda machines may tell you, the Court’s draft decision to overturn Roe v. Wade flies contrary to what most Americans want. More than half of Americans feel that Roe v. Wade should be upheld, and only about a quarter of Americans believe it should be overturned. One of the many reasons that the American public is up in arms over the leaked draft decision is the massive disconnect between government and citizen that this draft decision epitomizes. The Supreme Court, while not intended to be a political body, certainly is one. Its recent actions make it clear that the U.S. government does not act on behalf of its citizens. Now, the Court plans to overturn a ruling that provided a fundamental right to every person in this country with a uterus? It’s embarrassing to see this nation stoop so low.

 

If this draft decision becomes official, it would needlessly condemn thousands of women to death. The United States has the highest maternal mortality rate out of all developed nations, with about 17 maternal deaths for every one hundred thousand live births. It’s estimated that that banning abortion would raise maternal mortality by 21 percent nationwide. Many of these deaths are preventable with an abortion, but this draft decision is shutting down that possibly life-saving option for hundreds of thousands of women. Furthermore, when abortion is not legal, geographically reachable or non-discriminatory people often turn to unsafe abortions. It’s been estimated that about 45 percent of all abortions worldwide are considered unsafe, although that number will certainly rise if Roe is overturned. In developed nations, about 30 women out of every one hundred thousand die from having an unsafe abortion performed. By overturning Roe, the Supreme Court is announcing to the world that they support the deaths of thousands of women each year. It’s disgraceful.

 

The legal reasoning behind this draft decision is just as painful to legal scholars as the social implications of its outcome are. The draft decision written by Justice Samuel Alito states that, “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one in which the defenders of Roe and Casey chiefly rely—the Due Process Clause of the Fourteenth Amendment.” The justice’s reasoning for this position is clear—religious and political beliefs—but the opinion operates under the guise of impartiality and objectivity that the Supreme Court is known for. Throughout the draft, Alito makes reference to a case that determined that a state’s ban of physician-assisted suicide was constitutional, Washington v. Glucksberg, in order to prove his opinion has a basis in legal reasoning. 

 

Glucksberg states that rights must be “implicit in the concept of ordered liberty” and must be “objectively, deeply rooted in this nation’s history and tradition.” From a first reading of this idea alone, it’s clear that the author of this opinion had a traditional stance on Constitutional interpretation, which favors older ideology to modern socio-political changes. This decision essentially argues that for a right to be considered truly a Constitutional right, it must be clearly upheld throughout the nation’s history—which is problematic for numerous obvious reasons. This statement assumes that U.S. tradition and history is always correct, and therefore must be upheld, which leaves room for concerning cases in the future to use this same reasoning, and no room for ideological growth that is natural throughout the aging of a nation. 

 

Ironically, though, the opinion goes on to argue almost the exact opposite of this idea during its discussion of stare decisis. Alito writes that stare decisis, which means the legal principle of determining a case based on precedent, is not a required command to follow but a suggestion. Does this not entirely undermine their previous point of both following a select few cases that work with their opinion, but also that national tradition may not be the answer? Alito name drops Plessy v. Ferguson as an example of previous precedent that was overturned by Brown v. Board, but at that time wasn’t racial segregation and violent discrimination an idea “deeply rooted in this nation’s history and tradition?” Additionally, couldn’t this exact same line of reasoning be used to claim that racial segregation was also “implicit in the concept of ordered liberty” by the racist proponents of segregation? 

 

Later in the decision is the determination that “the inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.” This is terrifying to read as it essentially argues to states that criminalizing abortion is acceptable as it is common tradition in many cases.​​ This claim about criminalizing abortion is backed up by nineteenth-century laws and legal doctrine dating back to the thirteenth century—which, to these Justices, somehow still has an say on modern law. This is horrifyingly backwards.

 

Justice Alito also sort of said “trans rights” in his argument that “abortion is not a sex-based classification,” but obviously this was unintentional and instead done to ignore the undue burden and clear discrimination that bans on abortion place on women. Alito noted that because abortion doesn’t fall under a sex-based classification, it isn’t subject to “heightened scrutiny” that applies to sex-based classifications. Alito writes that this classification is only triggered when something is “designed to effect an invidious discrimination against members of one sex or the other,” which overlooks the obvious instances of discrimination against women that occurs from one carrying a child, giving birth, and so on, as well as the instances of discrimination that lead up to an individual requiring an abortion. Alito utilizes the arguments of amicus briefs in favor of his opinion to claim that instances of abortion restriction does not entail discrimination. Writing that “attitudes about the pregnancy of unmarried women have changed drastically; that federal and state laws ban discrimination on the basis of pregnancy, that leave for pregnancy and childbirth are now guaranteed by law in many cases, that the costs of medical care associated with pregnancy are covered by insurance or government assistance; that States have increasingly adopted ‘safe haven’ laws, which generally allow women to drop off babies anonymously and that a woman who puts her newborn up for adoption today has little reason to fear that the baby will not find a suitable home.” 

 

These claims are shallow and not indicative of the larger issues at hand. “Attitudes” about unmarried pregnant women changing does not mean that these women’s lives are therefore easier or better. Discrimination on the basis of pregnancy still occurs despite laws in place attempting to prevent it, additionally just because parental leave is often guaranteed by law the length of the leave is inadequate in many cases and these leaves are still often unpaid. This falsely assumes that the individual who has given birth to a child will be able to recover in the amount of time given, and will be able to care for their child without income. Most notably is the statement that “a woman who puts her newborn up for adoption today has little reason to believe that the baby will not find a suitable home,” this is only true for healthy white babies. Any child that is not a picture of perfection to the white couples looking to adopt likely will be out of luck despite the number of individuals on an adoption waiting list. This also ignores the number of children older than twelve months within the foster care system who are overlooked in favor of babies they can mold themselves, and who don’t have any childhood trauma the adoptive parents would have to address.

 

“We must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy,” the draft writes almost comically. “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply long standing principles of stare decisis, and decide this case accordingly”. This has to be a joke, as if it wasn’t insanely obvious this entire decision was a long-term plan to enforce the conservative Christian values that are losing steam in modern U.S. politics… 

 

Legal scholars and those who have been following the Supreme Court’s move to overturn Roe v. Wade are not surprised by the draft opinion leaked on Politico which called the Roe decision “egregiously wrong from the start.” Since before the court essentially ignored the Texas Heartbeat Act in September, Roe’s status as solid precedent has been slowly chipped away at. The selection of Dobbs v. Jackson Women’s Health for the court’s docket was intentional and timely for their goal of controlling women’s bodies and utilizing faux-religious doctrine as the law of the land. 

 

Authors’ Note: While this article uses mainly terms associated with cisgender women, it’s important to note that not only cis women get abortions but trans men, non-binary people, etc. The right to abortion is important for everyone.

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