Kait Guyer Writes

I’m Kaitlyn Guyer (she/her). I’m a mom. I’m a wife. I’m a daughter, a sister, a friend. There are a lot of things happening in the world right now about which I have many thoughts and feelings. This seemed like a good way to get those out of my head and to share them with others who may need to read them.

On the overturning of Roe (Part 1, probably)

Abortion is a fact of life. Humans have been experimenting with ways to terminate pregnancies for quite literally millennia. Whether it is legal has no bearing on whether it happens. When it is illegal it tends to be far more dangerous. Nonetheless, yesterday the US Supreme Court released an opinion which officially overturns Roe v. Wade and Planned Parenthood v. Casey, the two cases which had previously established a constitutional right to abortion in the US.

In his majority opinion, Justice Alito argues that the basis on which Roe, and also Casey, were decided was legally dubious and that the court was wrong to find a constitutional right to an abortion where none exists. Both decisions rely, at least in part, on the right to Substantive Due Process. The opinion reads: “The Court’s decisions have held that the Due Process Clause protects two categories of substantive rights—those rights guaranteed by the first eight Amendments to the Constitution and those rights deemed fundamental that are not mentioned anywhere in the Constitution. In deciding whether a right falls into either of these categories, the question is whether the right is ‘deeply rooted in [our] history and tradition’ and whether it is essential to this Nation’s ‘scheme of ordered liberty.’”

Alito goes on to argue that, since abortion is not a right explicitly guaranteed by the first eight amendments, it would need to fall into one of the latter two categories, either deeply rooted in the country’s history and tradition or essential to the country’s scheme of ordered liberty. Since it wasn’t until the 20th century that there was any mention of legal protection of abortion in the US, and in fact many states had previously made it a crime, it couldn’t possibly be deeply rooted in history and tradition. Alito writes, “ordered liberty sets limits and defines the boundary between competing interests.” On the issue of abortion, those competing interests are, of course, the interests of the person who is (or can become) pregnant and the interests of the fetus (described in previous abortion decisions as “potential life”). The argument in the Dobbs opinion is that, since people in different states evaluate these interests in different ways, the legality of abortion should be left up to the people of the states to decide (“The Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”)

I find these particular arguments troubling for a number of reasons. First, it is absolutely possible and should be acceptable for there to be a settled legal determination which defines the boundary between the competing interests involved in this particular issue. To imply that the interests of an unborn fetus, which cannot survive and be born without relying on an actual fully formed human being for literally everything, somehow outweigh the interests of the person upon whom that fetus relies, is really quite insulting to people with uteruses. Why does the Supreme Court not believe they have the legal foundation on which to protect the life and liberty of at least 50% of the citizens of this country?

Second, if there is not, in fact, a constitutional basis to prevent states from making abortion illegal, what is to prevent the court from overturning previous decisions that prevent states from outlawing things like birth control, same-sex marriage, or even interracial marriage? If none of these rights are actually enshrined in the constitution, and if people in different states weigh the interests involved in each of the issues differently, and if they are not “deeply rooted” in our history and tradition, then it seems like there is no constitutional basis on which the court would seek to protect them should a state pass a law that makes these things illegal. While Alito’s opinion claims that this opinion is about abortion and abortion alone, Justice Thomas’ concurring opinion opens the door to future challenges to decisions similarly based on the idea of substantive due process. Of course this decision is specifically about abortion; that is the only issues this particular case addresses. But the court of course relies on precedent established in previous decisions to evaluate future cases, so it is not out of the realm of possibility that this decision would influence future decisions about things that have been determined to be rights by previous courts.

Third, the fact that this court continues to rely on what they believe to have been the intent of the group of WASPs who wrote the constitution in the 1780s as the basis for their interpretation of the constitution in 2022 is wild to me. In the 1780s, the only people who could vote were white male property owners who were literate. In the 1780s, people owned other human beings. They could not have even imagined a country like the one we have today. The sheer size of it, the technology we have, the diversity we have. It would completely blow their minds. Perhaps it is time to acknowledge that relying on their original intent is inappropriate in the context of today’s society. Just a thought.

The text of the Fourteenth Amendment, Section 1, reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Notice it says “born” in the first three words. Notice also that it says no state will deny any person of life or liberty. I would argue that making abortion illegal denies people with uteruses liberty and could also deny them life. When the constitution was written, and even when this amendment was written, childbirth was safer than abortion. Today, the opposite is true. We cannot continue to base our entire legal framework on the thoughts, ideas, experiences, and worldview of a group of people that only included white men who had no way of imagining how their words would applied two and a half centuries after they wrote them.

Regardless of the legal arguments, there are practical implications of this decision which, in some cases, are happening already. Pregnant people will die as a result of abortion being illegal. We know this because abortion has been illegal in this country before, and it is illegal in other countries right now. Children will be born into families who don’t want them. When children do not have love, the implications are serious and long-lasting. More children will enter the foster care system. That system is its own topic for another day. For now, let’s just say that is not a positive outcome. The folks who are celebrating this ruling as a win are seriously disconnected from reality and/or lack empathy for people who are different from them. I completely understand that some folks have a deeply held belief that life begins at conception. That belief is faith-based and therefore should not influence the laws that apply to all of us. If you hold that belief and you become pregnant, don’t have an abortion.

There are many other real-world implications that this decision is having/will have on the real lives of real people, but this post is long enough. I will save that for another post. For now, I leave you with some suggested further listening and reading.

Further listening:

Further reading:

Kaitlyn Guyer

Leave a comment