The constitutional right of women to control their own bodies – including the right to choose to have an abortion – has been recognized in the United States for a half-century, ever since the Supreme Court’s landmark Roe v. Wade decision in 1973. In 1992, it affirmed this right in a second abortion case, Planned Parenthood v. Casey.
Now, however, thanks to Donald Trump, conservative jurists enjoy a 6-3 majority on the top court, and they made it clear in a hearing last Wednesday that they are ready to exercise their new clout to overturn, or at the least, emasculate Roe and Casey and, in so doing, make a woman’s right to choose subject to restrictions imposed by state legislatures.
When that happens (likely in late spring or early summer), all hell will break loose in the United States. Some of the heat and anger will inevitably spill across the border into Canada.
The case before the U.S. Supreme Court was an appeal by the state of Mississippi against lower court decisions that blocked a 2018 state law that sought to ban most abortions after 15 weeks (both Roe and Casey adopted the “fetal viability” standard of 24 weeks).
I spent a couple of fascinating hours on Wednesday listening to a livestream of the hearing.
Scott Stewart, Mississippi’s solicitor-general, made no secret of two facts: the state law was motivated by religious conviction – that all abortion is murder, plain and simple; and that the timing of the appeal was political – the state waited until the Supreme Court had a clear majority of conservative judges.
Being a believer in the right to choose, I found the arguments made by Justice Sonia Sotomayor, one of the three liberals, compelling.
Here’s a bit of it, lightly edited for clarity.
Sotomayor: “The newest ban that Mississippi has put in place, the six-week ban, the Senate sponsor said we’re doing it because we have new justices on the Supreme Court. Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? … If people actually believe that it’s all political, how will we survive? How will the court survive?”
Stewart advanced the argument of constitutional constructionists – if a right is not specified in the Constitution or its amendments, the right does not exist. Sotomayor countered with the “living tree” argument.
Stewart: “I’d emphasize that a problem here is we’re dealing with a right that doesn’t have a basis in constitutional text.”
Sotomayor: “Counsel, there’s so much that’s not in the Constitution, including the fact that we have the last word. Marbury versus Madison. There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet, what the Court did was to reason from the structure of the Constitution what was intended. And, here, in Casey and in Roe, the Court said there is that inherent in our structure are certain personal decisions that belong to individuals and the states can’t intrude on them. We’ve recognized them in terms of the religion parents will teach their children. We’ve recognized it in their ability to educate at home if they choose. They just have to educate them. We have recognized that sense of privacy in people’s choices about whether to use contraception or not. We’ve recognized it in their right to choose who they’re going to marry. I fear none of those things are written in the Constitution. They have all, like Marbury versus Madison, been discerned from the structure of the Constitution. Why do we now say that somehow Roe and Casey are so unusual that they must be overturned?
“When does the life of a woman and putting her at risk enter the calculus? Meaning, right now, forcing women who are poor – and that’s 75 per cent of the population – they are put at a tremendously greater risk of medical complications and ending their life, 14 times greater to give birth to a child full term, than it is to have an abortion before viability. And now the state is saying to these women, we can choose not only to physically complicate your existence, put you at medical risk, make you poorer by the choice – because we believe what?”
A good question.
Cambridge resident Geoffrey Stevens is an author and former Ottawa columnist and managing editor of the Globe and Mail. His new book, Flora! A Woman in a Man’s World, co-authored with the late Flora MacDonald, was published by McGill-Queen’s University Press in October. He welcomes comments at geoffstevens40@gmail.com.