by Hugo Amador

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June marks one months since a Supreme Court justice clerk leaked an opinion draft that declares that The Supreme Court has voted to overturn one of the most talked about cases since its inception: Roe v. Wade.

 

In this 1973 decision, The Supreme Court deemed that individuals had a constitutional right to abortion. Roe v. Wade was grounded on the Fourteenth Amendment, which declared that individuals have a “right to privacy.” However, with time, this legal argument was faced with critique against the ambiguity of the Fourteenth Amendment. 

 

For decades after its inception, Roe v. Wade support was padded by a historical narrative; state laws prohibiting abortion at all stages of pregnancy were not imbedded in the jurisprudence of ancient law. Rather, the restrictions were seeded in the latter half of the 19th century. Before this, abortion early in pregnancy was allowed in most states.

 

States like Illinois and New York were some of the first to criminalize abortion in the late 19th century. The restrictive laws were initially enacted in response to alarming claims of failed abortion attempts which, at times, would lead to death. In 1857, the newly founded American Medical Association began the wave against allowing abortion at any period of gestation. It appeared as if the organization was motivated by concern of fetal life, but also by concern that middle-class “Anglo-Saxon” birth rates were not up to par compared to those of immigrants and individuals of color. 

 

The new draft opinion written by Supreme Justice Alito is a complete repudiation of the 1973 decision, and likewise of the 1992 decision Planned Parenthood v. Casey which confirmed and maintained the rights enacted in Roe v. Wade. 

 

“Roe was egregiously wrong from the start,” Alito writes. “We hold that Roe and Casey must be overruled.”

 

The draft relies heavily on originalism; it appears as if Alito’s draft focuses and relies on provisions regarding federal protections for trial by jury and against self-incrimination and how it does not parallel an individual’s rights to abortion. This suggests that the roots of the “deep-rootedness” runs in conjunction with a deeply anglophile national fantasy. The fourteenth amendment, in which Roe and Casey were justified, surfaced quandaries regarding the rights of individuals against the states. However, it may appear – through a peruse of Alito’s precedents – that the judges did not have a bedrock for determining, objectively, which rights are not federally protected against the states. 

 

So perhaps a history-based approach, or rather a conclusion on stare decisis, cannot be the means of defining the rights of a patient, an individual. In making an appeal to the national spirit of a people, more so those past rather than present, the question still depends on which people exactly? Perhaps their motivations were to rule out – in the contexts of tradition, history, and liberty – the years since Roe’s rectification. And likely, perhaps, to rule out those who aren’t with them on the issue as well. Many may come from the perspective that laws inhibiting individuals who become pregnant from exercising on a choice of abortion, or, generally, on mitigating their own reproduction are clear violations of elements “implicit in the concept of ordered liberty,” Alito and the remaining four judges do not seem to think so. There may be a difference of opinion, but theirs appear to be contoured by a deeply rooted tradition of calling the individual, the patient, the physician, not just incorrect but completely shy of the discussion.

 

The fight to overturn these two cases is not a novel one. Growth in conservative perspective around the country, bolstered by a conservative administration in the last 5 years sought many means to repeal, or hinder, women’s rights to abortions in America. 

 

In 2017 two undocumented individuals in custody sued the Trump administration for a policy against allowing abortions in detention agencies. Tens of thousands of unaccompanied, undocumented migrants are apprehended at the border each year. With many of them having suffered sexual abuse and rape in their home country or during their journey to the U.S. Many of which come from countries in central and south America that wholly outlawed abortions. 

 

Many undocumented women seek refuge in the U.S. partly for oppression against their rights in their home countries. Although many claim that overruling Roe and Casey is entirely an attempt to return the decision on abortion to the states, allowing women who want an abortion to travel across state lines should they want one, this is not an equitable approach towards immigrant women and women in poverty who do not have equal feasibility of seeking health services in different states.

The current dilemma, therefore, can be approached from a equity point of view, rather than a historical and/or moral standpoint. As Ruth Bader Ginsburg exclaimed, regardless on whether Roe and Casey is overturned, “If you have the sophistication and the money, you’re going to have someplace in the United States where your choice can be exercised in a safe manner,” she said. Thus, this would mean that poor and immigrant women would not have a choice as Americans.