Farewell to Roe? Just one item today, folks -- a look at what appears to be the coming Supreme Court decision overturning Roe v. Wade, revealed in a leaked draft of an opinion written by Justice Samuel Alito and obtained by Politico.
We knew this was coming: There were signals when Mitch McConnell refused to let Barack Obama have a Supreme Court pick in his last year in office, when Republicans approved a judge who was credibly accused of sexual assault, and when McConnell jammed through a judge who belonged to a religious group that held that women should be subservient to men.
Republicans have been maneuvering and plotting for this day ever since Roe was decided in 1973. And if it comes about, as the draft decision indicates, then the right to an abortion will virtually disappear in just about every red state in the country.
But it's not just a woman's right to control her own body that's at stake here: The decision would also essentially declare that Americans do not have a right to privacy, and put other court decisions that were based on privacy at risk of also being overturned.
That was the basis of Roe: That there is a right to privacy in the Constitution, and as the Roe decision said, that right is "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
Here's where things get interesting: That right to privacy is an unenumerated, or implied right. In other words, it is not expressly mentioned in the Constitution, as is freedom of religion, speech, the press, etc.
Courts around the world have recognized that their citizens have certain inherent political and civil freedoms -- natural or intrinsic rights inherent to individuals or to mankind that do not need to be articulated. In many cases, those natural rights do eventually become part of a constitution via amendment.
For example, Australia has recognized an implied right of freedom of communication on political matters. Ireland has recognized the right to marry and the right to earn a living. None were originally mentioned in their respective constitutions.
In the US, courts have recognized the right to travel and the right to vote, and specifics of the latter -- based on race, gender, age, etc. -- were eventually added to the Constitution.
That brings us to the right to privacy. Some courts believe that not only is privacy a natural right, they also say that it is an implied right -- a right derived from an interpretation of other rights that are enumerated in the Constitution. A "reasoning-by-interpolation."
This was spelled out in Griswold v. Connecticut in 1965, when the Supreme Court ruled that married couples had the right to buy and use contraceptives without government restriction.
In an opinion written by Justice William O. Douglas, the court decided that this right of privacy emanated from other "zones of privacy" expressed in and protected by several amendments to the Constitution:
1. The First Amendment guarantees the right of association, a form of privacy in that who you hang out with is none of the government's business.
2. The Third Amendment prohibits the quartering of soldiers in any house in time of peace without the consent of the owner. In other words, your house is private and the government can't force you to take roommates of their choosing!
3. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The government can't enter your private dwelling without a good reason.
4. The Fifth Amendment, with its protection against self-incrimination, enables citizens to create a zone of privacy that the government cannot force them to surrender.
All of those are forms of privacy, the court ruled in Griswold. So there is a right to privacy enshrined in the Constitution, they said; it's just not spelled out.
Finally, the Ninth Amendment says that just because the Constitution explicitly mentions certain rights, it doesn't mean that other rights don't exist: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Griswold subsequently has been used as precedent in a number of other Supreme Court cases, including:
1. Eisenstadt v. Baird (1972), which extended Griswold's right to birth control to cover unmarried couples.
2. Roe v. Wade (1973), giving women the right to have an abortion.
3. Carey v. Population Services International (1977), which gave young people who were at least 16 years of age access to contraception.
4. Lawrence v. Texas (2003), which granted people a right to homosexual relations by striking down a Texas sodomy law that prohibited certain forms of intimate sexual contact between members of the same sex.
5. Obergefell v. Hodges (2015), which legalized same-sex marriage in another landmark case.
So what happens next?
Well, we have to see what the Supreme Court's final written decision on Roe says, and whether all of the conservatives on the court sign on to it, which seems likely.
If Roe is overturned, then Republican lawmakers across the country are going to be salivating to criminalize abortion and throw women in prison.
As attorney Jeffrey Toobin said on CNN, how many years in prison will a pregnant woman who tries to get an abortion in a red state get? How about if she goes to a blue state to get one, goes back home, and her abortion is discovered? What about people in blue states who send women in red states abortifacients? How about the doctor who performs an emergency abortion to save a woman's life? How much time will they spend behind bars?
You can be sure that one thing they will not do is put health care measures in place to help teen girls who end up with mental health issues because they were forced to carry their rapists' baby to term. Or to help the women who are badly injured from an illegal abortion. Or to help the families of the women who will die.
But there is likely to be another fallout: You know that if the Supreme Court, in overturning Roe, declares that Americans do not have a right to privacy and protection from government intrusion, then watch for conservatives to take aim at same-sex marriage next. Is Griswold, with its right to use birth control, also in their sights? And what else?
After all, Alito writes in his draft that "The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation's history and traditions."
Neither is interracial marriage. Or the right of Black people and women to vote. Or the right of women to keep their own money and own property in their own name.
If rights that aren't deeply rooted in the nation's history are off the table in your world, Sammy, then we might as well just don corsets and pound a carpet with a rug beater in the back yard.
Meanwhile, why Democrats didn't pull out all the stops to codify a woman's right to choose in law sometime in the past couple of decades is beyond me. And now it could be too late.
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