Last month, we learned the right to a safe, legal abortion in the United States is in grave danger. The Supreme Court of the United States is poised to overturn Roe v. Wade — the law of the land — and leave the question of reproductive freedom and bodily autonomy to state legislatures.
Make no mistake: This assault on reproductive freedom is an assault on all women — especially poor women, women of color, and Black women.
The draft decision overturning Roe v. Wade would create a federal patchwork where wealthy and middle-class women in anti-abortion states could still travel to states where the procedure is legal, but women without the ability to travel will be forced to carry a pregnancy to term. The draft opinion also affords no exceptions for rape or the life of the mother.
Approximately half of the women who receive abortion care in the United States live below the poverty line. Poor women are more likely to face barriers to care than wealthy women. Despite the barriers to access, women have made amazing progress since abortion care became widely available.
An amicus brief in the Dobbs v. Jackson case notes “for young women who experienced an unintended pregnancy, access to abortion in the United States increased the probability they finished college by nearly 20 percentage points, and the probability that they entered a professional occupation by nearly 40 percentage points … these effects tended to be greater among Black women.”
Even for healthy women, pregnancy comes with risks. Women die during or due to childbirth much more often in the United States than they do in peer nations, and Black women die three to four times more often than white, non-Hispanic women in the U.S. That is one of many reasons why reproductive freedom is a fundamental right, and must be protected by our Constitution, our courts, and our Congress.
Associate Justice Samuel Alito’s reasoning in the draft opinion not only reverses the landmark Supreme Court decisions on abortion in the United States, Roe v. Wade and Planned Parenthood v. Casey; it also puts decades of progress for women, people of color, and LGBTQ Americans in jeopardy. Alito, quoting Washington v. Glucksberg, argues that any right not explicitly mentioned in the Constitution must be “deeply rooted in this Nation’s history and tradition.” Abortion, therefore, should be illegal because instead of being legal for much of American history, there were many laws that made abortion illegal prior to Roe v. Wade.
There are factual flaws in that argument — abortion wasn’t as universally prohibited as Alito suggests — but the logical flaws in the argument will have grave implications for most Americans. Women didn’t appear in the Constitution until 102 years ago, when we gained the right to vote. In the eyes of the Supreme Court and the Constitution, we are still not legally equivalent to men. Second-class citizenship for women is “deeply rooted in our nation’s history and tradition.” Will that be the new constitutional standard for women?
LGBTQ Americans, who are never explicitly mentioned in the Constitution, can only point to two decades of relative freedom since Lawrence v. Texas invalidated state laws prohibiting same-sex relationships. Justices Rehnquist and Scalia, whom Alito frequently quotes in his draft opinion, were two of the three justices who voted against gay rights in that case; the third, Justice Thomas, is still on the court and undoubtedly one of the votes to overturn Roe.
Thomas and Scalia, joined by Alito, would go on to vote against marriage equality. While Alito twists his logic to its breaking point to assure readers that the opinion on Roe will not affect jurisprudence outside of abortion, I do not believe we can trust this Supreme Court to find freedom and equality for LGBTQ Americans in our nation’s “history and tradition.”
Black Americans such as myself only gained basic humanity under the law when the 13th, 14th, and 15th amendments were adopted, guaranteeing an end to slavery, equal protection under the law, and the right to vote. Even then, the nation’s original sin evolved from chattel slavery into Jim Crow, and in many places in this country, our Constitutional guarantees became void in practice. If the Constitutional test for Black Americans becomes our nation’s history and tradition, the Justice Alitos of the world will see 50 years of relative equality, and 350 years of subhuman citizenship.
If we limit our idea of fundamental rights to the history and traditions of the United States, we will not like what we find. In her book Medical Bondage: Race, Gender, and the Origins of American Gynecology, Deirdre Cooper Owens explains how the institution of slavery exploited Black women’s reproductive labor.
“Slave births created an incentive rooted in real property that merged with European religious and patriarchal notions,” she writes. Further, enslaved women who were sentenced to death had their executions delayed so they could give birth and preserve the property of their owners. Indeed, many of the policies and legal theories used to separate the interests of the mother and a fetus are rooted in slavery.
We do not want our laws to reflect the horrors of that history. Instead, I believe Alito should read what the Constitution says in plain language. The 13th Amendment states, “Neither slavery nor involuntary servitude … shall exist within the United States.” Through its prohibition on slavery, our Constitution has already spoken on the issue of bodily autonomy.
Motherhood has been an incredible gift that has transformed my life and the lives of many women for the better. However, motherhood should never be involuntary; and if the state can control whether you stay pregnant, then the state can control whether you become pregnant. From there, it’s not hard to envision a world where the state can tell you when you must be pregnant.
The idea of a forced pregnancy, with neither consent nor autonomy, recalls the nightmares of my ancestors and a chapter of our nation’s history and tradition to where no one should ever want to return.
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