The Advocate July/Aug 2022
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How SCOTUS’s Roe Decision Fails Today's America

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Views expressed in The Advocate’s opinion articles are those of the writers and do not necessarily represent the views of The Advocate or our parent company, Equal Pride.

After spending most of my career working to ensure reproductive justice, I feel heartbroken. Heartbroken for the millions of people across the United States who have lost access to abortion. Heartbroken for the millions more who will lose reproductive care as well as gender-affirming care as reproductive facilities close. Heartbroken for our LGBTQ community who understand all too well that our existence and the legal rights will soon be the targets of the Supreme Court’s conservative majority. I want to let you all know that I hear you; I see you; I grieve with you in this moment of pain. The Supreme Court’s 6-3 decision overturning Roe v. Wade substantially degraded our nation’s core principle that there exist personal liberties that the government may not take away relating to our “bodily integrity” and “family life.”  This decision strikes at the core of these principles.

In Dobbs v. Jackson Women's Health Organization, the Court’s conservative majority gives states full power to regulate abortion. They heartlessly took our fundamental right away and added insult to injury by dropping the level of legal review to the lowest floor, called rational basis review. That means if a state can show some rational reason and legitimate state interest for outlawing abortion, the Supreme Court will effectively rubber-stamp it. Our three progressive justices speak truth, “a state will be able to impose its moral choice on a [person] and coerce [them] to give birth to a child.” Dobbs means “a state can always force [a person] to give birth.” We know who will bear the most severe burdens of its decision: Black, Latinx, AAPI, indigenous, immigrants, people living in poverty, persons with disabilities, and LGBTQ+ people. Not only is this decision racist and sexist, but it is patently classist. Those with money may travel out of state for abortion care, and others without resources may face an impossible quandary due to how much money they have and where they live; not to mention the list of interstate issues that will arise when states criminalize seeking abortion outside of your state or criminalize telehealth options. The right-wing majority Court hides behind statements of neutrality. 

This decision is nowhere near neutral. As a practical matter, this ruling takes away a person’s right to bodily autonomy and hands it to states to determine whether a person has any say left in the matter. This reflects a concentrated effort to uphold racist and patriarchal practices of limiting the autonomy of women and LGBTQ+ individuals. How can it not be, when the Court’s analysis of whether abortion is constitutional looks to laws developed in the 1200s to 1800s to say that the right to abortion is not within our nation’s history and traditions? The court ignores its own precedent on the fundamental right to abortion, which is five decades old. This country was built on slavery and systemic discrimination, especially against people of color, who have suffered tremendously at the hands of the powerful. Women were the property of their husbands and couldn’t vote. LGBTQ+ people were tormented and killed. The right-wing majority of justices uphold our nation’s most shameful treatment of its people.  Justices Breyer, Kagan, and Sotomayor state in dissent, that our history is made up of white men making the decisions of who had liberty. It is telling that the Court’s determination of history relies only on criminalization laws designed by the few men in power.

The conservative majority says that abortion does not fall within our nation’s history or tradition, and it does not allow for ordered liberty, the test of whether a right is protected by the 14th Amendment of our Constitution. Justice Samuel Alito, who wrote for the majority, says ordered liberty requires a balance between the government and its people. He says it is voters who should decide the rules around abortion, through their elected representatives.  This is just the start. Where other cases have relied on these exact same principles (right to marriage, right to love the person(s) you choose, right to contraception), Alito claims abortion to be different because it speaks to an issue of morality. Yet, in 2022 these issues are still a “moral” battleground for conservative extremists dead set on erasing queer people. From “don't say gay” laws, and banning drag reading hours at local libraries, to criminalizing gender-affirming care, what is defined as morality for some is, in reality, the joys of existing free from harm and with human dignity.

Justice Clarence Thomas shows that we must take this threat to other rights that we won seriously. His statement that the Supreme Court should reconsider all our substantive due process rights – contraception, privacy, and marriage –is terrifying. He specifically calls the Court to reconsider key cases in queer rights – like Griswold, Lawrence, and Obergefell, inviting states to lead the charge to overturn them. He wants the reasoning used in Dobbs v. Jackson Women’s Health Organization as a roadmap. These rights did not exist when the Constitution was written. They would not pass the Alito test of being strictly a part of our nation's history and tradition. But the Constitution was written to adapt to the times and contains the key principles of liberty, equality, and justice from the start, which we can’t mention without acknowledging the hypocrisy of slavery including by founders who were slaveowners themselves.

Friday’s decision strays far away from these principles, as the Court acts inappropriately to overturn a well-established precedent (stare decisis) to take away rights from the people the three progressive justices make clear in their dissent that we should heed their warnings, “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.” We know, today, that this decision is far from the last attack on our liberties, and our three liberal justices sound the alarm. They state, “we cannot understand how anyone can be confident that today’s opinion will be the last of its kind.” Right-wing zealots focus like a laser beam on excising our cherished rights and liberties. And we must stop them, right now. Knowing that we will fight back, as a community, is what gives me great hope today.

Kierra Johnson is the Executive Director of the National LGBTQ Task Force. Johnson came to the Task Force after serving as Executive Director of URGE: Unite for Reproductive & Gender Equity.

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