With the possible overturning of Roe vs. Wade in the coming weeks, the question of bodily autonomy is once again at the forefront of our national debate. We’ll be exploring the history of Roe vs. Wade and the bodily rights granted to us by the Constitution along with delving into the questions of who does my body belong to and what rights do I (and others) have over it from a moral, ethical, and legal perspective?
Just over two weeks ago, the political website, Politico, leaked an initial draft majority opinion of the Supreme Court that points to the coming dismantling of the landmark Roe vs. Wade decision that guaranteed federal protections of abortion rights. The uproar and protests were immediate – including a number of marches held yesterday in Washington DC, LA, Chicago, and many of the Chicago suburbs including Elgin. As the news continued to dominate the media cycle, one of Jen’s friends – UU minister Rev. Jordin Nelson Long – began posting excerpts from the original Roe v. Wade decision. As a bit of a legal geek, I found it fascinating to read through the logical maze that the court navigated to come to their decision – and I realized that I don’t really know much about Roe v. Wade besides the blanket statement that it is what made abortions legal. When you dig into the questions and arguments of the decision, though, there’s so much more to it – and so much more at stake if the current Supreme Court does strike it down. So today we’re going to take a look at how we got to where we are and what’s at stake.
But first, a few disclaimers. First, I’m up here as a white, cis-male – the exact segment of our society that has gotten us into this mess to start with. And while I try to be cognizant of my white, male privilege – especially on a topic that I can never understand fully as a male – it’s very possible that something I say will rub someone the wrong way. If I do offend – please understand that it’s out of ignorance and not intentional.
Second, a word of warning that, as I mentioned, I’m a bit of a philosophical/legal geek. Weighing ideas, values, and actions against each other and defining things as precisely as possible is a challenge I enjoy. I understand that not everyone enjoys it the same way that I do. We are going to be wading into some of the behind-the-scenes working of our judicial system because I think it’s important to understand the systems we have to work within – but I’ll try not to get too bogged down in minutia of it all.
Finally, the right to an abortion is just one part of Reproductive Justice which encompasses the human right to have children, not to have children, to parent the children one has in healthy environments and to safeguard bodily autonomy and to express one’s sexuality freely. You may leave here today asking “what about” – what about access to reproductive health for the poor, what about the effect pregnancy has on domestic violence, what about the children stranded in the welfare state due to restrictions and unfair laws. All of those are important questions, but ones we don’t have time to address today – but if you feel strongly, we’re always looking for lay-led sermons and I’d be happy to talk to you about that opportunity.
So let us begin with a bit of a civics lesson – something we all had to learn in middle school but many of us have forgotten the details about in the years since. When the founders of our country drew up the blueprints for our government, they envisioned three separate bodies working together but also providing checks and balances to make sure one branch didn’t overstep their role.
We have the Legislative Brand (Congress) who makes the laws, the Executive Branch (the President) who actually does the day-to-day operations of the government, and the Judicial Branch who’s job is to make sure that the laws and policies don’t contradict anything in the Constitution.
What’s that? Oh, well the Constitution is just the supreme law of the country. It started as seven articles that outlines how the three branches of the government work with each other and the rights that the individual states have. Over the years, it’s been added to, or Amended, 27 times – adding sections outlining the rights of US citizens and refining and restricting the reach of the government. Today, we’re going to focus on two of those Amendments:
The 9th Amendment – which is all of one-sentence long: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Essentially, an “unenumerated right” is a right that you have even though they didn’t specifically mention it in the Constitution. They fit a lot in the document, but they couldn’t fit everything.
Then there’s the 14th Amendment, adopted in 1868 to protect formerly enslaved people against discriminatory state laws. This amendment covers a number of things, but the important part for today is the no “State [may] deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
That “without due process of law” – the Due Process Clause – is the important part because over the years, a number of Supreme Court rulings have combined that part with the 9th Amendment to say that people have a right to privacy, and the government can’t encroach on that privacy without having a good, legal reason.
The Supreme Court
Speaking of the Supreme Court, let’s take a look at how that whole thing works. As I mentioned, their job is to make sure none of the state or US laws or policies violate the Constitution. But they don’t look at every law – laws have to make it through a few lower levels before being heard by the Supreme Court.
So let’s imagine a state that says “here’s my new law and it’s going to apply to everyone that lives in my state.” Some of the state’s citizens don’t like the law because they think it violates their rights, so they say “hold on a moment, there buddy” and they take it to court. The lower court compares the law against the Constitution and makes a ruling – and if the losing side still disagrees, they can appeal and the case might go up to the next level of courts. Eventually, if it meets all the requirements of being heard by the Supreme Court, they will hear both sides of the argument and make a final ruling. When they do that, they might strike down the entire law or they may say “this part is ok but this part has to go”.
Now the judges on the various courts can’t just make their decision based on their own personal feelings or beliefs. They are supposed to base it on two things – Common Law and Stare Decisis. Common Law is essentially the law of the land – so they’ll comb through current and historical state and national laws, and even research laws from before our founding to see what the general idea of the law is and has been.
Stare Decisis is a fancy Latin term that roughly translates to “stand by things already decided” – so if the US courts have upheld or denied something in the past, the court will generally stand by it based on precedence. This policy allows some stability of law over the years regardless of the actual judges on the bench. While this is a general policy of the court system, it isn’t a firm rule – in some cases they do look at previous cases and say “nope, those justices got it wrong” – like when the court struck down racial segregation laws that had been upheld since 1896.
And that brings us to Roe v. Wade.
So let’s travel back in time to 1969 when “Jane Roe”, later identified as Norma McCorvey, became pregnant with her third child. She wanted an abortion but Texas law prohibited it unless her life was in danger. She sued, claiming that the Texas laws abridged her right of personal privacy.
She won her initial case in the US District Court for the Northern District of Texas but then the state appealed to the Supreme Court. In January 1973, the Supreme Court upheld the original ruling – stating that the 14th Amendment’s right to privacy does protect a pregnant woman’s right to choose an abortion.
But the court also understood that the states have an obligation to create laws that protect the health of women and prenatal life. The court saw those two sides – the rights of a woman and the protection of her health – as a pendulum that swung from one side to the other as the pregnancy progresses and the fetus’s ability to survive on its own. To balance those two sides, the Court tied state regulations to the three trimesters of pregnancy:
During the first trimester, they figured abortions are relatively safe so governments can’t prohibit abortions at all. During the second trimester, however, abortions are a little more risky for the mother, so governments can require reasonable health regulations. Third trimester abortions are even more risky for the mother and unborn child, so states could prohibit abortions entirely except in cases where an abortion is necessary to save the life or health of the mother.
Planned Parenthood v. Casey
This trimester framework served us well for nearly twenty years until the early 90s. At this time, the state of Pennsylvania had imposed requirements on all abortions regardless of the trimester – requirements including a waiting period, spousal notice, and parental consent. Planned Parenthood fought the requirements in the case of Planned Parenthood v. Casey and the Supreme Court heard arguments in 1992. This time, while the Court did uphold that the 14th Amendment protects a woman’s right to choose to have an abortion prior to viability, it replaced the trimester framework with a “viability analysis” – thereby allowing states to start implementing restrictions like waiting periods and spousal or parental notifications during the first trimester. It also changed the way future abortion cases would be reviewed, making it so state restrictions would only be considered unconstitutional if they were enacted for “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
In recent years, a number of states have tried passing laws that future restrict the ability of women to have an abortion, including the state of Mississippi which passed the Gestational Age Act in March, 2018. This act, which banned any abortion after 15 weeks (with exceptions for medical emergencies or abnormalities but not for rape or incest), was quickly followed up by a second law that forbade most abortions when a heartbeat could be detected – usually between 6-12 weeks. While both laws were passed, neither have gone into effect because they were immediately challenged in federal court which blocked its enforcement. This is the case that is currently in front of the Supreme Court with one question to be reviewed: “Are pre-viability prohibitions on elective abortions unconstitutional”. In other words, does the Constitution grant the right to an abortion before a fetus if viable.
A Change in Precedent
Based on the leaked draft opinion obtained by Politico, it appears that the answer may be “no” – the unenumerated rights protected by the Constitution does not include the right to an abortion. And since that isn’t a right protected by the Constitution, it’s up to the individual states to make their own laws on the matter.
While the original Roe v. Wade decision includes a history of abortion free from legal punishment both in our country and in human history as far back as the Greeks and Romans, in the draft opinion, Justice Samuel Alito bites back that “its survey of history ranged from the constitutionally irrelevant (e.g. its discussion of abortion in antiquity) to the plainly incorrect (e.g. its assertion that abortion was probably never a crime under the common law).
He argues that the right to abortion does not fall into the category of unenumerated rights because it isn’t “deeply rooted in this Nation’s history and tradition”, and, in fact the right to an abortion was entirely unknown until the late 20th century. He concludes by saying, “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. ‘The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”
While Justice Alito has cautioned that the leaked document is only a draft and does not indicate how the court will eventually rule, it seems highly unlikely that a different decision will come from the court. Which has many people wondering what comes next. The draft does include the disclaimer that, “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Nevertheless, the 14th amendment has been used to protect other rights not specifically mentioned in the constitution – including the right of interracial couples to marry (1967), the right of unmarried individuals to use contraception (1972), the right to engage in intimate sexual conduct (2003), and the right of same-sex couples to marry (2015). If Roe v Wade is overturned, there is fear that other rights could soon be challenged by states testing new laws against things like emergency contraception.
But that takes us away from our primary topic of today – a woman’s right to bodily autonomy. Generally speaking, the Constitution does grant everyone the right to bodily autonomy, allowing us to do whatever we want with our bodies as long as it doesn’t encroach on someone else’s rights. There are some exceptions to those rules – like how we can’t sell our organs or why there are laws that say some substances are legal and others aren’t, but those can be topics for another day.
The sticky wicket to the abortion debate is the part about not encroaching on someone else’s rights. Nowhere in the Constitution are rights granted to non-living persons – but there is not scientific answer for a line of demarcation between a fetus and a viable, living child. Without a conclusive answer, there are those that say that “life begins at conception” so that life is protected by the Constitution.
Even Justice Blackman, in the original Roe v. Wade judgement, wrote, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” – hence the original attempt to weigh the rights of the mother against the rights of the future-person using the trimester system.
Hypothetical vs Real Life
And here’s a place where I have to step back and check my privileges. It’s too easy to debate these philosophical questions from afar and forget what’s actually at stake with the answers. In one of my first drafts of this morning’s service, I was going down the rabbit hole considering the differences between a person’s rights and a person’s obligations. Similar to the Roe v. Wade arguments, I was asking at what point the right to an abortion is eclipsed by the mother’s obligation to the future-human. I asked whether an abortion at 25 weeks or 30 weeks or 37 weeks should be ok.
That’s when my proof-reader pointed out that you don’t train for a marathon and then stop after 25 miles just because you no longer feel like running. If a woman is considering an abortion that late in the term, it’s not because they’ve changed their mind. She shared with me an interview of Pete Buttigieg by Chris Wallace during the 2020 Democratic Party presidential primaries.
In the interview, Buttigieg said, “I think the dialogue has gotten so caught up on where you draw the line that we’ve gotten away from the fundamental question of who gets to draw the line, and I trust women to draw the line when it’s their own health.”
Wallace probes further by saying, “So just to be clear, you’re saying you would be ok with a woman, well into the third trimester, deciding to abort her pregnancy…it’s not hypothetical, there are 6,000 women a year who get abortions in the third trimester.”
Buttigieg responds, “That’s right, representing less than 1 percent of the cases. So, let’s put ourselves in the shoes of a woman in that situation. If it’s that late in your pregnancy, that means almost by definition you’ve been expecting to carry it to term. We’re talking about women who have perhaps chosen the name, women who have purchased the crib, families that then get the most devastating medical news of their lifetime, something about the health or the life of the mother that forces them to make an impossible, unthinkable choice. That decision is not going to be made any better, medically or morally, because the government is dictating how that decision should be made.”
So what’s next?
Even with my male privilege, I consider myself lucky that Illinois grants women the fundamental right to make decisions about their reproductive health care – including the right to an abortion prior to viability without any obstacles like waiting periods. With two daughters, I’m very happy that they’ll be able to make their own decisions – with or without my input – and I will support them in whatever they choose.
But our state is in the minority – with only 15 others (and the District of Columbia) to have that right protected by law. We can’t sit idly by while others’ rights in our neighboring states are being restricted – especially when the damage will be felt the most by people of color, young people, poor and working class people, and those living in rural areas – many of whom already are severely impacted by a lack of ready access to comprehensive and equitable reproductive care and social programs.
In Justice Alito’s draft opinion, he rejects the idea that abortion bans subjugate women in America. “Women are not without electoral or political power,” he writes. “The percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.” – almost as if to say women are doing this to themselves and it’s not the fault of the Supreme Court.
In response to that, I leave you with an excerpt from the May 3 Press Release, “UUs Remain Committed to Supporting Reproductive Justice, Will Continue to Fight for Abortion Access”: “as Unitarian Universalists, we believe that all bodies are sacred. Every person has the right to determine if, when, and how they want to have children…Comprehensive reproductive care, including access to abortion, is essential to the health and well-being of women and pregnant people. We will continue with those most impacted by this harmful decision to fight for permanent state and federal legislation that codifies and enshrines the right to access abortion care. Our faith still urgently calls us to advocate on behalf of all people to be able to readily access safe, legal abortion care whenever and wherever they need it. We will not rest until that reality is true across the country.”