In their decision to overturn Roe v. Wade, the six right-wing judicial zealots on the Supreme Court scorned legal precedent and mocked history to deprive women of equal citizenship under the law.
No one should be fooled. The Dobbs case, a landmark decision of the U.S. Supreme Court that held the Constitution of the United States does not confer any right to abortion, overruling Roe v. Wade and Planned Parenthood v. Casey, addressed a Mississippi anti-abortion law; but it shattered the foundation of equal justice under the law for women. It wrenched the most intimate choice about their bodies and their life from women and gave the right to decide to the states. And, as Justice Clarence Thomas detailed in his utterly unprincipled and hypocritical concurring opinion, the Court’s right-wing majority now has its sights on the right to contraception, the right to same-sex sexual activity and the right of gay couples to marry. (Thomas, characteristically and hypocritically, did not mention the right to interracial marriage, equally at risk from the decision, but omitted presumably because he enjoys that right).
The right-wing activist majority invoked the doctrine of “originalism,” suggesting that a constitutional right must be found either in the plain words of the Constitution or in the concurrent history – either of the founding or of the passage of the 14th Amendment in question under Roe.
Remarkably, as historian Jill Lepore notes, the Court’s zealots take no notice of the fact that at the time of the Constitution or the passage of the 14th Amendment, women had no legal standing. In fact, at the passage of the Constitution, the majority of Americans, including women and people of color, had no right to vote or to run for office. It is not surprising that the men involved in framing the Constitution or the amendments would overlook the question of women’s rights.
But even that assumption is an insult to any serious historical record. In historical reality, women’s right to their own bodies, particularly around the question of intercourse, conception and pregnancy, was central to the 13th, 14th, and 15th Amendments passed after the Civil War to end slavery and give African Americans equal rights under the law.
Under slavery, the sexual exploitation and forced pregnancies of Black women were central to the economy of the plantation. Slaves were valuable property. Black women were raped and impregnated, and had their babies sold off from them as a matter of commerce.
Ending forced sexual and reproductive servitude for Black women – and providing personhood for their offspring – was central to the passage of the 13th and 14th Amendments that abolished slavery and guaranteed all people equal protection under the law. As law professor Michele Goodwin concludes, “Mandated, forced or compulsory pregnancy – ripping the choice of pregnancy from the mother to the state – is a direct violation of the 13th Amendment’s prohibition against involuntary servitude, as well as the 14th Amendment’s defense of privacy and freedom.” In their peremptory decision, the six reactionary activists essentially erased the reality of Black women’s servitude and their liberation from their constitutional history.
The stakes involved are matters literally of life and death. Women are 14 times more likely to die by carrying a pregnancy to term than by having an abortion. Those who suffer most are poor women. Most poor women are white, yet Black women are over three times as likely to die by carrying a pregnancy to term than white women. In Mississippi, the state that Dobbs gave the right to force women to carry a pregnancy to term, a Black woman is 118 times as likely to die by carrying a pregnancy to term than by having an abortion.
The six judges distorted the history and ignored the implications of their decision because they were concerned not about the Constitution or about judicial precedent or about the implications of stripping women of this fundamental right. They were focused only on the outcome that they sought. As the three dissenting judges wrote, “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed. …The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.”
This right-wing majority – five of whom were appointed by presidents who lost the popular vote – is now running amok. They are acting like partisan operatives, not impartial justices. They ignore history to overturn New York’s century-old law regulating the carrying of guns; they are gearing up to gut the regulatory powers of the Environmental Protection Agency and other agencies that have been established since the Great Depression. Their effort to throw us back to another age will not and must not succeed. Their brazen arrogance has already shredded the legitimacy of the Supreme Court. But sadly, even as the struggle to curb their judicial wilding is waged, poor women will suffer most directly from their delusions.
You can write to the Rev. Jesse Jackson in care of this newspaper or by email at jjackson@rainbowpush.org. Follow him on Twitter @RevJJackson.
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