Viewpoint: Religious activists on Supreme Court poised to overturn Roe v. Wade

Karen Rubin, Columnist

The United States has the highest maternal mortality rate of any developed country in the world (U.S. ranks 54th in the world behind Bosnia and Saudi Arabia), and Mississippi is almost double the national average. In Mississippi, women are 14 times more likely to die during their pregnancy than women who choose legal abortion. Mississippi has one of the highest rates of infant mortality, ranks lowest of 50 states in “quality of life” for children and has one of highest rates of poverty in nation.

But the radical, rightwing, religious, fanatic, activist justices on the Supreme Court hearing the Mississippi abortion case, Dobbs v. Jackson Women’s Health Organization, are dead set on a crusade to do away with Roe v Wade.  They don’t give a fig, not a care, about the life, the health or trauma of the mother. She is a nonentity. There wasn’t a single question about rape or incest or the fact that the “mother” could be as young as 12 carrying her father’s, brother’s or uncle’s fetus in the hearing.

It is so obvious they think of women as mere vessels, a brood mare lacking the “personhood” they would endow the fetus. Chief Justice John Roberts in his arrogance, ignorance and/or misogyny asks what’s so special about 15 weeks? How is it so different from 24 weeks? Is “viability” (the standard by which a woman was supposed to have the choice of whether to carry a fetus or not, determined to be 24 weeks – meant to balance the interests of a woman’s total right to choose with the state’s interest in protecting life) really a thing?

You could actually hear their ears shut down when Julie Rikelman, representing Jackson Women’s Health Organization and U.S. Solicitor General Elizabeth Prelogar tried to offer statistics about maternal mortality, infant mortality and quality of life for children in Mississippi. It was as if they had fingers in ears and were intoning “lalalalalala, I can’t hear you” in their head. Their questions betrayed their misogyny, their ignorance and their single-minded interest in divining some legal basis to deny women their autonomy.

But, your honors, 65 million women of child-bearing age will lose their autonomy, 35 million of them immediately because they live in the 20 states that have trigger laws once the “viability standard” and “undue burden” are overturned.

Lalalala. Don’t really care.

Justice Clarence Thomas (married to a rabid anti-abortion activist) asked Prelogar to identify the constitutional right that protects abortion. “Is it privacy? Autonomy? What would it be?”

Prelogar replied, “It’s liberty. It’s the textual protection in the 14th Amendment that the state can’t deny someone liberty without the due process of law.”

But she should have stared into his face and pointed to the 13th Amendment outlawing slavery and involuntary servitude, denying women the right to control their labor, bodies and life, by forcing women to bear a child.

“Allowing a state to take control of a woman’s body” and force her to bear the burdens of pregnancy “is a fundamental deprivation of liberty,” she said. “If women are not able to make the decision, if the state could take control of their body, force them to bear and deliver a baby, they will never have equal status under the Constitution,” she stated.

Indeed, showing their cards, Thomas raised the question of whether criminal child neglect laws can be used to prosecute a woman who abused drugs while pregnant. Indeed, if Roe fails, states will prosecute women for miscarriages (one in five pregnancies result in miscarriage), will track them if they obtain medication to induce abortion by mail, or even if they travel to obtain an abortion.

Women will be prosecuted if they drink or do drugs during pregnancy, which means they will be monitored, especially if vigilantes see a payday ahead (so much for the HIPAA privacy law). Already, Alabama has prosecuted nearly 500 women since 2006 for exposing a fetus to a “controlled substance” in the womb, including prescription painkillers.

When one of the “originalists” thought to trap Prelogar by demanding to know where the founders would have put reproductive rights – as if the 50-year “precedent upon precedent,” a super-precedent of Roe and Casey, weren’t sufficient – I imagine the surprise in learning “at the founding, women could end their pregnancy under common law. That was specifically discussed in Casey – note 19 – that at time of founding and well into the 1800s, women had the ability to choose to end their pregnancy.” Shocker.

“Not every woman has wanted to exercise this right, but one in four have – to control their bodies, their lives,” Prelogar stated. “Casey also properly recognized societal dimension – understanding in society that although controversial, [the right to abortion] is a liberty interest of a woman…For the Court to reverse course now would run counter to what equality is guaranteed to women in this country.”

Amy Barrett, installed in the stolen seat that had been Justice Ruth Bader Ginsburg’s, used adoption – “safe haven” laws – as an argument that abortion wasn’t necessary to “relieve the woman of the burden of parenthood” (but not the extraordinary health risk, physical, mental and emotional harm of pregnancy and childbirth). She showed obliviousness to the trauma to the “mother” and even the trauma to that child who will likely have a miserable life in orphanages, foster care, or when learning of the true nature of their conception – perhaps incest or rape.

But the only basis they could have to put the “rights” of a fetus – incapable of surviving on its own – over the rights of a fully formed female, is by endowing it with “personhood” based on a theology that life begins at conception. That is a religious view, not a secular one, as Justice Sonia Sotomayor noted, without adding that the Constitution expressly prohibits establishment of religion.

Sotomayor, perhaps to make the rightwing justices feel some sense of guilt, said, “When does the life of a woman, and putting her life at risk, enter the calculus?”

Indeed, if the Supreme Court’s only role (which is inferred, not expressly endowed in the Constitution) is to be the arbiter of what is constitutional, where do the constitutional rights of women come in? That’s why Congress needs to implement the Equal Rights Amendment which now has been adopted by the requisite 38 states.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts,” Justice Sotomayor asked.

Lalalalala. They don’t care.

About the author

Karen Rubin

Share this Article