×

It’s not about Roe v. Wade

The leaked draft of a Supreme Court decision that would overturn Roe v. Wade is ostensibly about a woman’s right to control her own body, but it is actually about much, much more. Justice Samuel Alito’s draft opinion hinges on the 14th Amendment, which specifies that any right conferred by its due-process clause must be “deeply rooted in this nation’s history and tradition.” He claimed that the 50-year-old right to abortion was not rooted in history and tradition and therefore, for the first time, a constitutional right could be rescinded.

The draft decision is sloppily written, logically inconsistent and clearly politically motivated. I assume that it will be made neater and based on better legal arguments before it is finally released, but for all intents and purposes Roe (and the supporting case, Planned Parenthood v. Casey) are dead. This despite assurances by both justices Kavanaugh and Barrett during their confirmation hearings that they would not reverse settled law like Roe. The bigger issue is not whether long-settled precedents can be reversed but what does that, as a new precedent, mean for other rights?

Before my Conservative friends jump on me for having deep concerns about this ruling, let me tell you that I was raised a catholic, attended catholic high school, and think that in most cases abortion as a means of contraception is morally repugnant. But, is contraception morally repugnant? Should it be illegal? Should LGTBQ people’s private lives be the subject of police action?

Back when Roe was decided, I lived in a town where alcohol was illegal, even in restaurants. My first job took me to Connecticut, where contraception was still illegal. In much of the U.S., gay sex was illegal until just a few decades ago. In Texas, “homosexual conduct” remains part of the Texas penal code, despite Lawrence v. Texas, which 16 years ago took away the states’ rights to criminalize such private behavior.

Whatever your opinion on abortion, please consider whether you want other people’s beliefs or the government questioning your personal choices that harm no one. What is “deeply rooted in this nation’s history and tradition”? Slavery was legal until 1865. Women could not vote until 1920. Black people were denied many of their civil rights until 1964. What is truly and deeply rooted in our history and tradition is what Martin Luther King Jr. said was the arc of history tending towards justice. That is what the 14th Amendment seeks to protect, our right to move to more just society without government suppression of individual liberties.

Martin Niemoller, a Lutheran pastor who knew and initially supported Hitler but then learned his true plans, wrote a famous poem: “First they came for the socialists, and I did not speak out–because I was not a socialist. Then they came for the trade unionists, and I did not speak out– because I was not a trade unionist. Then they came for the Jews, and I did not speak out–because I was not a Jew. Then they came for me–and there was no one left to speak for me.”

This Supreme Court seems to be coming for your personal rights, based on the faulty argument that things not rooted in tradition cannot be constitutionally protected. This includes the right to privacy as well as to freedom to behave as we wish, so long as we do not harm others. Once Roe is overturned, the ultra-conservative court majority will be able to use that “not rooted in tradition” precedent to overturn many other modern rights. Gay marriage? Contraception? Minority voting rights?

Conservatives have gotten what they wished for, a Supreme Court that is willing to reverse history and take away rights that most thought were inviolate. But who will they come for next?

— — —

Lee Keet lives on Lake Colby, near Saranac Lake, and is chair of the Cloudsplitter Foundation.

NEWSLETTER

Today's breaking news and more in your inbox

I'm interested in (please check all that apply)
Are you a paying subscriber to the newspaper? *

Starting at $4.75/week.

Subscribe Today