Roe V. who?
Now that the entire fiasco surrounding Roe v. Wade has cooled down, I find it appropriate to discuss it without offending too many people, something I do not deny being particularly susceptible to through my accounts.
In order to advance my piece, a brief historical description follows. On January 22, 1973, the Supreme Court of the United States (SCOTUS) ruled that criminalising abortion violated a woman’s constitutional right of privacy, found implicitly in the liberty guarantee of the due process clause of the Fourteenth Amendment. As a means to concentre the state’s distinct compelling interest in the health of pregnant women and in the potential life of foetuses, the Court established the point after which a state’s compelling interest in the pregnant woman’s health would allow it to regulate abortion “at approximately the end of the first trimester” of pregnancy. While defending the foetus’s right to life, the Court determined that point at “capability of meaningful life outside the mother’s womb” which occurs at about 24 weeks of pregnancy.
Earlier this year, Roe v. Wade, 410 U.S. 113 (1973), was overturned by a Dobbs v. Jackson Women’s Health Organisation (No. 19-1392) when SCOTUS held that the U.S. Constitution does not confer a right to abortion.
The Morning After
The foregoing is a necessary prelude to an understanding of my tract. I must address that it is constricted upon the incessantly voguish “pro-choice (or rights)” and “pro-life” discourse against what the SCOTUS has been endowed and particularly expected to discharge – the preservation of democracy and the U.S. Constitution.
As the possessor of the ultimate appellate jurisdiction over most, if not all, U.S. court cases that involve federal laws, SCOTUS is well competent to invalidate a statute for violating a provision of the U.S. constitution. Often regarded as the most consequential amendment amongst others, the Fourteenth Amendment of the U.S. Constitution, it writes: “…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” Unbeknown to the Founding Fathers of the Federalist Papers, this itself would prove to be a conundrum.
Discordant Intimacy
The hypocrisy of the “pro-life” activism is obvious upon modest introspection. It is manufactured from an anti-choice stand, often employing morality to justify abortion restrictions. But the whole case for extending protection to the unborn and the tendency to extend a bias in favour of life is merely a manipulable variable to promote the doctrine of evangelical Anglo-Saxon Christianity. The Didache (or Teaching of the Twelve Apostles), one of the earliest Christian writings, commands: “You shall not murder a child by abortion nor kill that which is born.” Of course, this would have had no influence had the SCOTUS opinion of Dobbs v. Jackson Women’s Health Organisation not include Justice Alito and four other members of the Court, all of whom are conservative Christians. At least four others are conservative Catholics.
I have not been able to discover whether or not these judges placed their personal, conservative beliefs above those of others when considering the case, but it appears that the American legislation is being shifted in a distinctly conservative Christian direction. A series of court decisions makes it obvious that SCOTUS is taking a hatchet to state-church separation, even requiring the American government to subsidise religion in certain circumstances. Up until Carson v. Makin 596 U.S. (2022), where Chief Justice John Roberts held that Maine’s “non-sectarian” requirement for the otherwise generally available tuition assistance payment violates the Free Exercise Clause, the Court for many decades held the opposite view, as in Everson v. Board of Education, 330 U.S. 1 (1947), where “no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”
That is not to say that pro-choicers are without due faults. The pro-choice camp advocates a position of individualistic choice. But the case for a choice paradigm is just that – championing a notion of choice. According to historian of reproductive politics Rickie Solinger, the flimsy rationale of “choice” is damaging for it obscures legitimate needs. She contends that in the 1960s and 1970s, abortion rights advocates initially used the term “rights” rather than “choice” for “rights” usually refer to privileges and benefits that a person can exercise without access to any possession of resources.
When one deduces the constitutive structure of “choice”, its concept is connected to possession of resources, creating a hierarchy among the haves and the have-nots. Consequently, it is not inconsistent to find the denial of abortion to those beneath the echelon when the state withdraws reproductive rights choices from poor women through legislations such as the Hyde Amendment, or family caps for the Temporary Assistance for Needy Families (TANF) which are systematically manufactured to decrease the likelihood of abortion among disadvantaged pregnant women. As Solinger states:
“Choice” also became a symbol of middle-class women’s arrival as independent consumers. Middle-class women could afford to choose. They had earned the right to choose motherhood, if they liked. According to many Americans, however, when choice was associated with poor women, it became a symbol of illegitimacy. Poor women had not earned the right to choose.
Liberty or Death
This pathetic moral spectacle would not be evinced if the pro-choice camp confederated themselves in a pro-rights faction. Ascribing inherent foetal rights would likely further their original mission, than marching in persistent protest just so one is allowed to “choose”. After all, these United States of America were conceived in libertarian values. To momentarily adopt a historical perspective, the Declaration of Independence produced by the Continental Congress proclaimed: “We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.”
It is apparent that even the firmest of international organisations have no influential sway over the American legislature. The United Nations Women’s Rights Committee noted that while the U.S. signed the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1980, it has yet to ratify it. Only a week after the U.S. Supreme Court’s ruling to overturn the abortion guarantee, top UN-appointed independent experts urged U.S. lawmakers to adhere to international law that protects women’s right to sexual and reproductive health, only to no avail.
Wade’s Revenge
The crisis of the SCOTUS’s betrayal and violation of the Fourteenth Amendment’s promises amongst others undeniably demonstrates democracy and liberal guarantees at risk. Why, then, are they so authoritarian? It seems trite, then, to say that individual liberty is intended for limited consumption only, for the ideas contained within the Constitution can be reverenced and disputed at the same time.
