The shock of Justice Samuel Alito’s leak draft opinion Dobbs v. Jackson Women’s Health It has left many questioning how the Supreme Court could so easily overturn nearly 50 years of precedent protecting women’s legal right to abortion.
Of course, those who have followed the court’s instructions in recent years are not entirely surprised by the draft opinion.Courts are increasingly Prioritizing religious rights over other rights and public health, including cases focusing on LGBTQ+ rights, women’s health and COVID-19 restrictions.the severity of Textualism and Originalist Approaches The opinion used by Alito in the draft opinion (and apparently approved by the court’s conservative majority) obscures the dark future of women’s rights and health.
In fact, the Opinion paints the realities of women’s lives in 2022 through rose-tinted glasses — when it doesn’t mention them at all. With the obvious goal of overturning two major abortion precedents, Roe v Wade and Planned Parenthood v. Caseythis new Supreme Court sees women’s life and health as purely abstract concepts
Seeing the lives of women in 2022 through rose-tinted glasses
Alito, for the most part, argued that the word “abortion” was not in the Constitution and that it wasn’t “deeply rooted in the nation’s history.” But Alito’s textualist and originalist approach to abortion not only obscures the legal and social context of women’s lives in the past, but is completely detached from their lives today.
In fact, he made little attempt to balance the interests of women—their health, mental health, economic security and duty of care—with the state’s interests in restricting or prohibiting abortion. In a 67-page draft opinion, he devotes less than two pages to the impact of banning abortion on women’s lives.In a few sentences, he dismissed roe and Casey The court considered women’s autonomy and equal opportunity, and quickly concluded that by 2022, women would have enough power that they wouldn’t have to worry if they had an unwanted pregnancy.
His claims: women are no longer excluded as single mothers, are legally protected against pregnancy discrimination in the workplace, have access to health insurance while pregnant, and are eligible for parental leave “in many cases”. The reality of women’s lives in 2022 is very different from what Alito paints.
Alito’s happy scene completely wipes out the fact of pregnancy and motherhood in America U.S. has the highest maternal mortality rate In rich countries, the ratio is twice as high as in the nearest country.Rate is Black women are three times as likely as white women. It is far from certain that all women will be covered during pregnancy. Low-income women and women of color most likely to be uninsured during pregnancy.
The United States is also the only developed country There are only 6 in the world This does not guarantee paid maternity leave.childcare is prohibitively expensive for many families. The opinion is free of any social, racial and economic background.
U.S. women’s reproductive health and Serious disparities in racial and socioeconomic health among women Completely ignored.Alito’s only mention of race is in a footnote suggesting that the practice of abortion stemmed from the eugenics movement, which sought to sterilize women of color to reduce the black population, a claim made by his colleague Judge Clarence Thomas in in his consent Box v. Planned Parenthood.
claim has been widely refuted by historians And completely confuse women’s autonomous decision-making with state-sanctioned forced sterilization. More importantly, this line of reasoning ignores persistently high rates of black maternal morbidity and mortality, Public Health and Human Rights Crisis This has been largely ignored by policymakers for decades.
Research shows that access to safe abortion reduces maternal mortality. a 2019 Research in the American Journal of Preventive Medicine showed that states with the strictest abortion laws and policies had significantly higher maternal mortality rates. other research A similar association has been demonstrated for the link between abortion and maternal mortality.because of a Most black women live in the South Southern states most likely to further restrict or ban abortion if court overturns roe and Caseythe court’s decision is likely to exacerbate the black maternal health crisis.
“Equal participation in the economic and social life of the country”
Alito Condemns 1973 roe The court’s “fact-finding” includes citing amicus curiae briefs filed by the American Medical Association and the American Public Health Association on the harms of illegal abortion to women’s health and well-being. For Alito, it is not the court’s job to engage in this “fact finding” because the interpretation of the Constitution should not involve consideration of the law’s impact on real people. The complexities of entertaining women’s lives can overwhelm the courts’ legal analysis and reasoning.
In fact, Alito asserts roe The court’s consideration of two factors, “the relative weight of the interests involved” and “the need of today’s profound problems”, is legislative rather than judicial interpretation. So shouldn’t medical, public health or social science evidence on the effects of abortion on women’s health and well-being be considered by the courts?
Again, Alito refused because it was totally unfeasible, Casey The court’s “undue burden” standard, which defines it as a policy that “places significant obstacles in the path of a woman’s pursuit of an abortion until the fetus becomes viable.”But it can be seen from the figure Dobbs Think he could not understand that any such enormous burden would undercut the state’s power to restrict or ban abortion.he sneered roe and Casey Courts balance a woman’s interest in freedom to control her reproductive life with her interest in a “potential life.”
Abortion, he argues, is different from other interests that courts consider to be libertarian interests, since many believe it constitutes the life of an “unborn person”; therefore, courts should not intervene. Along this line of thinking, one would have to conclude that women’s interests would not be so significant that it would override state power to restrict or prohibit abortion.
He also wholeheartedly refused concept of trust Casey court When it asserts that “women’s ability to participate equally in the country’s economic and social life is facilitated by their ability to control their own reproductive life.” Alito does not consider this interest in dependence, instead asserting that “anyone – especially the courts – It is difficult to assess the impact of abortion rights on society, especially on women’s lives.”
So, if courts aren’t supposed to resolve complex issues, who should? Alito asserted that women had enormous political power. If they want legal abortion, they should simply elect candidates who favor the choice. He pointed to Mississippi, which is testing the constitutionality of pre-feasibility abortions, as an example of women’s enormous political power, noting that in the 2020 election, women voted more than men.
Overshadowed by this rosy picture of American democracy are some disturbing realities.Mississippi is one of six U.S. states This does not allow any excuse to vote in person or by mail. Only 14% are women Members of the Mississippi state legislature, who make up 52 percent of the population.
Now, pit these differences against Mississippi women’s reproductive health and maternal experiences.They’re brutal: Nearly a quarter of Mississippi’s newborns in 2019 lived in Maternal Care Desert; Nearly half of Medicaid-covered mothers report no postpartum checkup. The kids aren’t much better either.Mississippi has national Highest infant mortality rate and highest poverty rate domestically, with 28% of children live in poverty.
The future of women’s health and equality
Alito’s opinion not only signaled that the court was prepared to overturn nearly 50 years of constitutional protections for legal abortion. It allows courts to distance themselves from any consequences of their decisions on the lives of real people, especially the most disenfranchised and marginalized.
During oral argument, Justice Brett Kavanaugh suggested the court must use ‘Strict neutrality’ in abortion debate To avoid having to “pick sides”. Essentially, this court wants to wash away the issue, leaving chips where it can.At the end of the opinion, Alito said matter-of-factly: “We do not pretend to know how our political system or society will respond to today’s overturned decision. roe and Casey. Even if we can foresee what will happen, we have no right to let this knowledge influence our decisions. We can only do our job, which is to interpret the law…”
In other words, what this decision means for women’s health, safety, autonomy and equal opportunity, and for the well-being of their children, is irrelevant to this Court.
Alito’s textualist and originalist approach to constitutional interpretation assumes that a correct interpretation exists and that courts should not play a role in considering the actual impact of their decisions.
But courts, including the Supreme Court, have been considering the practical and social implications of their decisions. As constitutional scholar Melissa Murray points outin overturning the legal principle of “separate but equal”, the court Brown v. Board of Education Extensive social science evidence on the impact of segregation on educational opportunities and mental health of black children was considered. The draft opinion, which refuses to consider the actual impact of their decision on women, underscores the conservative grip on the court and further deepens Justice Ruth Bader Ginsburg’s loss.
Ginsburg, who is mostly dissenting, often cites medical and public health evidence, constantly reminding the court majority of the realities of women’s daily lives and health. For Ginsburg, abstracting and excluding women’s lives in the name of neutrality has long been used to cover up injustice.she sees the courts weakening roe By approving state restrictions on abortion are Worst for low-income earners female.
in a Interview with the BBC in 2019, she warned that women and their allies should be as concerned about abortion rights as they were in 1973, lest they be completely eroded.With the leak of Alito’s draft opinion and the possibility of court overturning roe and Casey By June, most Americans who support legal abortion had passed the time to take her warnings seriously.