Rights, Reliance, Ruth . . . and More: “R”eflections on Roe

Abortion rights demonstrators gather at the Utah State Capitol in Salt Lake City, June 24. Rick Bowmer/AP

Rep. Marjorie Taylor Green, R-Ga., at the Supreme Court. Tyrone Turner/NPR

In the unlikely event that global warming has put you into a perpetual state of estivation, I will open with what is now clearly yesterday’s news: As expected since May 3, when Josh Gerstein and Alexander Ward of Politico, in direct violation of the customary secrecy of Supreme Court deliberations, leaked the draft majority opinion in Dobbs v. Jackson Women’s Health Organization, the Court announced on June 24 its 6-3 decision to overturn 1973’s landmark case Roe v. Wade (410 U. S. 113), holding: ”The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”

The media erupted with dire warnings and jeremiads, women in pussy hats took to the streets with smudged mascara and clenched fists, dozens among a mob of  7,000 to 8,000 attempted to force their way into the Arizona State Capitol, and protesters gathered overnight at the home of Justice Clarence Thomas after members of the pro-abortion group Ruth Sent Us circulated the addresses of all six justices who voted in the majority.

Although Religion and ’Rong might be among the R’s with which I will analyze yesterday’s decision, I will take neither of these perspectives as I describe my own complicated relationship with Roe v. Wade, which was decided less than a month before my 20th birthday. I was still a virgin and would probably have opposed abortion if I even paid attention to the decision. But the times they were a-changin’. Having voted for Nixon  at 19 as a beneficiary of the 26th Amendment, I began a multi-decade penance in 1976 when I wrote in the name of Eugene McCarthy because I couldn’t bring myself to vote for a Southern Baptist. And having been deflowered by the end of December 1974, I was married before the 1976 election and pregnant by the late summer of 1978, when I was a hotshot graduate student going straight for my PhD at that bastion of Southern liberalism in Chapel Hill. A baby would have been inconvenient for me on that fast track to academic glory, and my husband and I agreed that I should take advantage of the opportunity offered to me by the Supreme Court ruling. It’s not a confession I am necessarily eager to make publicly (even though I have made it under the seal of the confessional), but considering the positions I am preparing to argue, I decided it would be rank hypocrisy if I omitted the undeniable truth that I aborted a child—my only child—in October of 1978.

I have wildly mixed feelings about that choice, especially in light of the fact that it prevented my only opportunity for motherhood. Of course, the academic glory in whose favor I decided never came to fruition either, and that husband and I were divorced by early 1979. Although I have wept many tears in the knowledge that I would never be a mother, I have not felt like a murderer nor particularly regretted the decision I made. But I have indeed wondered if childlessness weren’t the punishment that fit the deed. My story is otherwise irrelevant here except as context for my ensuing arguments, which are generally in support of yesterday’s ruling in Dobbs.

And so I turn to the ruminations that follow. They are not intended as a well-reasoned, three-pronged argument in favor of overturning Roe v. Wade. Rather, they are some random thoughts that have crossed my mind as I experienced the news coverage—words and pictures—of the crisis that began simmering on May 3 and came to a full boil yesterday. By some quirk of the dictionary, the topics I jotted down in preparation for this post all began with the letter R. I’ll begin with some relatively dry topics related at least tangentially to the law.

RBG
Not only the pro-choice activists, but most feminists of any stripe, have lionized Ruth Bader Ginsburg, especially since her death less than two years ago led to the appointment of Amy Coney Barrett and the realignment of the Supreme Court to a reliable 5-4 conservative majority. However, taking a close look at Ginsburg’s views reveals that she herself did not agree with the reasoning in Roe v. Wade. Frederic J. Frommer wrote in The Washington Post in May:

Ginsburg, who died in 2020, criticized the 7-to-2 decision both before and after she joined the high court. She argued that it would have been better to take a more incremental approach to legalizing abortion, rather than the nationwide ruling in Roe that invalidated dozens of state antiabortion laws. She suggested a ruling protecting abortion rights would have been more durable if it had been based on the Equal Protection Clause of the Constitution — in other words, if it had focused on gender equality rather than the right to privacy that the justices highlighted.

In researching for the above, I learned not only of Ginsburg’s opposition to Roe. In addition, I came across reports that some members of the liberal media are currently blaming Ginsburg in part for the Dobbs decision, arguing that she should have retired during the Obama Presidency so he could appoint a likeminded justice.

Reliance
I also learned a new legal term today, reliance—one that fits right into my general assessment not of Dobbs itself, but of the illogic of its opponents. As noted in Time, “When Americans come to rely on a decision of the Supreme Court, the Justices have historically exercised special caution about abandoning it”; it is central to the legal concept of stare decisis (“to stand by decided matters”), which undergirds legal decision-making based on precedent. “Reliance interests” would apply if Americans have come to rely on the legal right to an abortion—if, that is, “people have organized intimate relationships and made choices that define their views of themselves and their places in society” in terms of the ready availability of abortion. The Time writer predicts that “individuals’ lives and relationships will be disrupted [in] jarring ways” because of Alito’s reasoning, which declares “an absence of concrete reliance” on Roe and Casey. 

My view of this argument is not a legal one, but one based on straightforward reasoning. It’s easy to  understand the concept of reliance in non-legal contexts, and sometimes people take reliance a little too far, turning to a chain of blame to absolve themselves of the consequences of their actions. Thus, I would suggest that women who wish to avoid bearing children could rely on numerous methods of prevention before that ultimate reliance on access to abortion—methods ranging from oral contraception to abstinence. Perhaps exercising those fundamental choices would be better than “organiz[ing] intimate relationships” in reference to Roe v. Wade.

Rights
Over the course of my life, I have expended considerable study and thought on the subject of rights. However, even though I took advantage of the legal freedom to have an abortion, I never thought that doing so was exercising a right, constitutional or otherwise. I am reminded of a paper one of my students wrote many years ago, in which he expressed passionate belief in the rights of his pet iguana. I laughed aloud when I read it; even though PETA had been founded 1980, long before I began teaching, I wasn’t familiar with the phrase “animal rights“ nor do I ascribe to the concept now. 

Nor am I more than an armchair philosopher, so I can’t argue intelligently about the various categories of rights (natural or legal, claim or liberty, positive or negative, individual or group). I would point out, though, that we have a constitutional form of government, whence arise the rights that protect us. Specifically, we have a Bill of Rights, supplemented by various additional Amendments to the Constitution, notable among them the 13th, 14th, 15th, 19th, and 26th.

I am aware, of course, that the Supreme Court can essentially create rights by extending the application of other rights. So in Griswold v. Connecticut (1965), the Court extended the “penumbra” of the Bill of Rights (and the due-process clause of the 14th Amendment) to create a right to privacy relating to matters of contraception, which was further extended in Roe to include abortion, and also applied to interracial marriage (1967) and same-sex marriage (2015). 

Today I read the following by a CNN analyst and prophet of doomsday, Stephen Collinson: “If one constitutional right can be wiped out, why not others?” In that context, I do find quite telling the attitudes of college students today—a demographic with whom I am very familiar—who are entirely willing to assert the right to abort their unborn children, the right of biological males to swim on women’s teams, and the right not to be offended. But they are equally willing to dispense with the very rights enshrined in the first ten Amendments. Most are openly hostile to free speech, many dispute the right to keep and bear arms, and some have expressed confusion about the need for protection against unreasonable search and seizure. My somewhat circuitous point is that the current generation—abetted by the media and the education system, among others—is quite willing to play fast and loose with the concept of rights to suit the moment. 

And I would simply remind the doom-mongers that actual constitutional rights cannot be “wiped out” by judicial decision or other sleight of hand. In Article V, the Founding Fathers themselves provided for process by which to amend the Constitution. These slow and deliberate steps generally prevent passions of the moment from undoing the provisions enshrined in that document.

Rage, riot, and (lack of intellectual)  rigor
As I implied previously, my main concern in these reflections is not a critique of a legal decision and its impact on the political, ethical, or religious Zeitgeist—which would be beyond my acumen in any case. Instead, my attention in these last few weeks has primarily rested on the untenable positions taken by the mob in reaction to the leaked draft opinion and then the decision as announced on June 24.

Some of the most alarming threats, according to the Wall Street Journal, come from a shadow group self-identified as Jane’s Revenge, whose flyers circulating since May 3 warn of a “night of rage” and proclaim a chilling threat: “To our oppressors: If abortions aren’t safe, you aren’t either.” 

Rioters in Portland vandalized cars, smashed windows, and painted anarchistic graffiti—often irrelevant to the issue of the day—across the city : “Death to SCOTUS,” “Time to Riot,” “ACAB [All Cops Are Bastards],” “End CIV[ilization],” and “Abolish Schools.” In Colorado, arsonists set fire to a pregnancy crisis center and smeared the building with graffiti.

And of course intersectionality had to rear its ugly head, offering interpretations of the news that strain the credulity of thinking people. Here’s a take on the day’s judicial news from a reader of the News and Observer [Raleigh]:

It’s a dark day in this country now that women, non-binary people and trans men are second-class citizens and have no right to control our bodies and determine whether we wish to carry a pregnancy to term. We must stand up to Republicans and the tyranny of the minority.

Under the headline “With Roe v. Wade Overturned, Disabled People Worry How They’ll Be Affected,” NPR offered this bit of gobbledegook:

Though the court’s decision will impact everyone, disabled people, especially those with multiple marginalized identities, will be disproportionately impacted for a number of reasons, such as health care inequities, sexual violence, poverty and the loss of autonomy that they have historically experienced.

Responsibility
I have now come to the final point in my discussion and the one I care about the most—the enduring value of responsibility. It is a value considered anathema by those who deem it a microaggression to claim that with rights come responsibilities or that actions have consequences. It is the value abdicated by those who cried #MeToo and #BelieveSurvivors.   It is, indeed, the value I myself abdicated in October of 1978. 

And it is the value everywhere absent from the slogans emblazoned on signs and painted on buildings throughout the country today:

• My body, my choice [the old saw from the 1969, now a worldwide rallying cry in the movements for “bodily autonomy” and “reproductive rights”];
• I am a vagina voter;
• Don’t commandeer my womb;
• Keep your bans and religion off my body;
• End compulsory pregnancy;
• Keep your rosaries off my ovaries;
• No forced pregnancy.

I suppose the theme is clear—along with the complete lack of elementary logic. I won’t belabor the point except to repeat what I suggested earlier: These women have every right to choose, at several steps along the way from flirtation to childbirth—or even beyond that to adoption. And it seems to me that the protesters who carry signs screaming “Fuck the Court” might exercise a little choice in their own decision to fuck in the first place.

For me,  the most revealing sign of all is the one I will end with. It speaks for itself: