Recently a draft opinion from the Supreme Court was leaked to the press. It was written by Justice Alito, and appeared to suggest that the court has voted to overturn the earlier Supreme Court decision from 1972 known as Roe v. Wade.
That decision, which stated that the right to abortion was protected by privacy, which is implied in various amendments to the Constitution. It has been considered decided law for these last fifty years, and a great step forward in women’s rights to equality.
The political left is outraged that they would do this, though most expected it at some point; and the right is outraged that someone leaked this draft decision, though they have been advocating for this since Roe was decided. Who actually is responsible for this leak remains unknown, but it is easily argued that the leak came from the right.
The public seems quite clear that they did not want Roe v Wade to be overturned, and by a fair amount. And by a larger amount they want abortion to be legal, or legal within certain conditions.
Even though I am a man, my interest is in all citizens having equal protection under the law. As I see it, banning abortions places an undue burden on women, because they cannot conduct their lives without restrictions based on their gender and fertility. Men are free to engage in sex with any consenting adult, but do not have to be burdened with carrying to term a fetus should pregnancy result. Though they commonly can be held civilly liable for the care of the child, they have no equal criminal restriction on their actions during the pregnancy. The woman who is pregnant becomes compelled by law to conduct her life in such a way as to deliver the pregnancy to term, and in such a way as to not cause it to end prematurely. This includes lifestyle and diet changes she may not wish, and perhaps compulsory prenatal medical appointments. The male who co-caused the pregnancy is not so compelled to actions of any measure of equality, and therefore the burden of unwanted pregnancy falls more heavily on women than men.
Having sexual intercourse does not automatically guarantee pregnancy, and it since it is often done for pleasure, it cannot be said to be reserved solely for producing children. Sex for pleasure is an act engaged in by men and women throughout human history and prehistory.
Prior to the development of effective birth control, women could not exercise this right to engage in sex without accepting the risk of pregnancy. And while this risk is greatly lower with modern birth control, it isn’t guaranteed in all cases, and often birth control is not used by many women who do not intend to have sexual intercourse. Thus in pursuing a pleasurable lawful act, they are burdened with considerable risk and consequences should an unintended pregnancy occur. Whether it is rape, or failure of birth control, or any other reason, no one should be compelled to become or remain pregnant against their will.
The pending decision expected in June is an affront to the liberty of women. I have written of this before, but it has its genesis in religious belief. There is no reasonable understanding that an embryo in a woman’s womb is a separate life entitled to the protection of law when that conflicts with the protections afforded to the woman. The assertion that life begins at conception fails to make a reasonable argument to assign person-hood to a biological process that can only take place inside the womb, and may not in natural course result in an infant. And in deciding this the court makes every woman who wishes to have sex, whether she is married or not, subject to the risk of not only pregnancy, but the completion to term of that pregnancy and the care of that child once born, until such time that nature inhibits this ability. It places every woman, and women alone, forced to consider a full term pregnancy and childbirth as a risk when engaging in sexual intercourse unless she has permanently ended her ability to have them, or her partner has had a vasectomy. And here additional burdens are born by the possibility of rape, however small they may be.
Ultimately, this is a law to regulate behavior. And I expect that the next thing to come will be allowing states to decide if birth control may be permitted, and perhaps prohibitions of sex outside of marriage. *Alas, as I come back to work on this piece after some days away, already we see legislatures in various states proposing laws that would impose those exact restrictions.
Reverend Doctor Martin Luther King jr. said “…the arc of the moral universe is long, but it bends toward justice.” This has been the case for most of the history of the world, but not without interruptions and setbacks. Sometimes these interruptions have been retardation. And sometimes they have lasted generations. There have always been those who would impose their religious beliefs onto others against their will. And while the focus of MLK’s work was on racial justice, the same justice is needed for all members of society.
Should this leaked draft opinion become the law of the land it will make a setback in that arc of justice. It will retard the application of equal treatment under the law to all Americans and cause great harm and injustice to many. And while I would like to hope that it will be rejected by a majority when the final vote is given, it is incumbent on The People to cast votes over the course of the coming years and decades to reshape the political landscape in order to change the members of the court.