Thoughts on Roe

Oh, the mess we’re in

At this point, I have a new theory on the leak out of the Supreme Court in June of the draft decision to overturn Roe v. Wade. Knowing the shock that a final decision overturning Roe would provoke, some wise soul in the court’s apparatus deemed it useful to soften the ground by releasing a draft. The preliminary decision was shocking enough, but at least it was a draft, the leaker reasoned; once the justices gauged early reaction, maybe they would navigate toward the center. Or so my new theory goes.

Nice try. Pardon the gun analogy (another loaded issue), but the court’s conservative majority came out with both barrels blasting. Say what you will about the shock of the ruling — overturning 50 years of established law on the abortion issue — but if you take time to read the decision itself (warning: NSFW, it’s way too long and dense), you’ll find it deeply reasoned and annotated. The decision, to some extent, rests on an implicit condemnation of the act of abortion itself — ending a fetal life — but its explicit judgment is to send the issue back to the states so the people and their elected representatives can have another whack at it, which they’ve already started doing. In other words, abortion is not a stated constitutional right, the court ruled, so it should be returned to the states for the people to decide.

To this layman though, the court’s decision was like a cluster bomb. While it was clearly aimed at a legitimate and foundational issue — the separation of perceived constitutional rights from legislative rights — it levied massive collateral damage by wrecking 50 years of established legal, cultural and social norms at the stroke of pen.

While the court made a reasonable argument (whether or not you agree) that the constitution does not explicitly protect the right to abortion, there’s plenty of ambiguity there. Are not reproductive rights foundational to a woman’s sense of liberty and freedom, American values enshrined in the constitution? This was at the heart of the argument to preserve Roe — that a woman’s right to an abortion is inherently protected by the Fourteenth Amendment’s due process language.

But like everything else in life, the law — and even the Constitution — can be ambiguous. Imagine a Venn diagram with two circles representing pro-choice and pro-life interests. Through a constitutional lens, particularly applying a concept as broad as due process, there’s a very large overlap of those two circles. This overlap is reflected in established polling data showing 62 percent of Americans favor the right to abortion during the first 15 weeks of pregnancy. Given the constitutional ambiguity on the question and the broad public consensus, in my opinion the court should have let Roe stand, as imperfect as it was. There’s no reason to say that common sense (or stare decisis) shouldn’t sometimes prevail over constitutional literalism.

But the conservative majority on the court seemed to take some measure of satisfaction, even glee, on just ripping the band-aid off the issue. The sting won’t go away for a very long time.

The pro-choice camp, of which I am a charter member, looks at all of this as a real-life adaptation of “A Handmaid’s Tale.” While I wouldn’t go that far, there were some ominous thoughts in Justice Clarence Thomas’s concurring opinion that give pause.

Agreeing that Roe rested on a misapplication of the Fourteenth Amendment’s due process clause, Thomas cited other cases that also rely on the same constitutional principle — same-sex marriage (Obergefell v. Hodges), the right to contraception (Griswold v. Connecticut), and private sexual acts between consenting adults (Lawrence v. Texas). Again, whether or not you agree, these are all established law and deeply embedded in the fabric of our culture and society. But Thomas hinted that maybe it’s time for a second look.

“For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”

I don’t know about “A Handmaid’s Tale,” but that sentence carries a tone of sinister autocratic neutrality reminiscent of “1984.”

The Roe decision comes at a time of deep division and unrest in this country, when nothing seems certain and everything feels chaotic. I think a lot of us look around — see things like Jan. 6, Uvalde, Ukraine, $7 gasoline, Georgia’s 14th Congressional District, and the Roe ruling — and say, this isn’t who we are, is it? But it is, in fact, who we are right now. Like Odysseus in his long journey home, we are being tested. In the arc of history, we’re still a very young country and we have a lot of growing up to do yet.

When we think of our own lives, we all occasionally have the thought, “I wish I knew then what I know now.” In our collective life right now, we have an opportunity to do that. Deep down, we all know how we should live as Americans right now. Instead of being impatient and judgmental, we should be empathetic and charitable. Instead of being divisive, angry, impulsive or despairing, we should be tolerant, aware, determined, respectful and optimistic.

At other times in our history — many worse than now — we’ve come out on the right side and there’s no reason to think we can’t now as well. This is who we are as Americans — that regardless of Roe, Uvalde or any specific issue, when the shit hits the fan we ultimately find a way to get together and fix things. When you’re in the middle of it — which we certainly are now — it doesn’t feel that way. So have faith, be patient, stay strong. We’ll get there.