“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”– Justice Samuel Alito, United States Supreme Court, June 24, 2022.
With those words, the nation’s highest court reversed itself, declared it had been wrong in Roe v Wade a half-century earlier, and by a 6-3 vote denied American women the freedom to choose by stripping them of their constitutional right to abortion.
The decision is wrong. It is stupid. It is dangerously out of touch with the needs and desires of a majority of the American public. It is a disgrace, a triumph of politics and political pressure over justice and common sense. It deprives American women of a fundamental right that the court had recognized in 1973 in Roe and affirmed in 1992 in a second case – a right shared by Canadian women since the Morgentaler decision in 1988.
Last Thursday’s ruling in Washington was all of the above –wrong, stupid, dangerous and a disgrace. It was also absurd and inane. The constructionist conservatives, now a majority on the Supreme Court thanks to Donald Trump, decided that a constitutional right to abortion could not possibly exist because the word “abortion” was not written into the Constitution when it was drafted in 1787 in Philadelphia by an assembly of 56 delegates from 12 of the 13 states. These “Founding Fathers” – nary a woman among them – were acutely interested in property rights – nearly half of them were slave owners, and slaves were valuable properties. Human rights – women’s rights, in particular – were simply not on anyone’s mind 235 years ago. It would never have occurred to the Fathers that abortion might concern anyone other than a pregnant woman.
A young whippersnapper like Thomas Jefferson might have been hooted down it he’d tried to tell oldster Ben Franklin that the Constitution had to include a right to abortion and a guarantee that state legislatures would make access to the procedure obstacle free.
It is inane that the court in 2022 would take away a constitutional right so important to the millions of women who have exercised it during the past five decades – and take it away on the absurd ground that the need to guarantee a right to abortion was not foreseen by an assembly of important men and built into the document they were drafting 235 years ago (“Hey, Ben, we’ve been thinking 24/7 about slavery. It’s the big one. But don’t forget abortion – yeah, it’s got something to do pregnancy – it’s going to be a biggie in 2022.”)
By reversing itself on Roe, the Supreme Court dumped full responsibility for abortion into the laps of state legislators. Some of the more liberal states, led by California, Maine, Vermont, Connecticut, New Jersey and New York are expected to entrench the right to abortion in their state constitutions, while other states will strengthen existing protections.
However, 13 states had “trigger” laws ready to go as soon as the Supremes ruled; 11 more intend to follow. Some of the new state laws ban abortion outright, and some extend their bans to the prescription and sale of pills that induce miscarriage; some states will attack abortion via accessibility, by forcing convenient clinics to shut down, by increasing the laundry list of conditions a woman has to meet before she can even be considered for an abortion, or by shrinking the time window for abortions.
Since Roe in 1973, abortion has generally been allowed up to a “viability point” at which a fetus is considered to be able to survive outside the womb. This placement of this point has created decades of controversy. Medical experts put it somewhere between 23 and 26 weeks after conception.
That’s out the window now. Political opinion has trumped medical knowledge. The Mississippi law that the Supreme Court upheld when it scrapped Roe last week reduces the window to 15 weeks. Other states are looking at eight to 12 weeks. Ohio hoped to start a national trend when it triggered its law to ban abortion after six weeks from conception. But it’s Mississippi that’s leading the crusade against the “barbaric practice” of abortion. No exceptions will be made in the Magnolia State for victims of rape, incest or medical emergency.
Thursday’s decision is evidence of the breakdown of the vaunted American system of checks and balances. These days, the executive branch controls the judicial branch while the congressional branch deliberately looks away. Too many of its members look first, and listen first, to an unseen fourth branch, which the nearsighted Fathers also failed to foresee back in 1787. The fourth branch is the money branch – that collection of special interest and advocacy groups and religious fundamentalists who find it ridiculously easy to buy influence on Capitol Hill.
The National Rifle Association continues to block meaningful gun measures; the religious right eliminates Roe v Wade.
In Washington, the abortion decision, although anticipated, hit with the force of an earthquake or tsunami. Crowds assembled within hours and demonstrations – protests and celebrations alike – began rolling out across the country. They are coming to Canada, too. We can count on it.
President Joe Biden denounced Thursday’s decision as a “tragic error” that pointed the United States down “an extreme and dangerous path.” The country will learn just how dangerous that path may become when the midterm elections for the Senate and House of Representatives take place in November.
And there may be worse to come. Like many court watchers, Biden noted an indication – a broad hint? – from the dean of the court’s conservatives, Justice Clarence Thomas, that he and his colleagues may soon want to re-examine the constitutionality of same-sex marriage and publicly funded access to contraception.
The abortion war in the United States does not impact Canada directly – the Trudeau Liberals will not interfere with the constitutional right to abortion – but it does sound an alarm bell. Right-wing extremism is gathering strength in Canada, too. We can see that only too clearly in the success of Pierre Poilievre’s campaign for the leadership of the Conservative Party of Canada.
We know there many angry and disillusioned people who will seize any opportunity to vent their frustration with the status quo, if necessary at the expense of the rights of others, as they did when they stormed the U.S. Capitol last year and when they took over the “Freedom Convoy” and held Ottawa hostage in February.
Abortion, same-sex marriage and birth control are safe for the moment. But we don’t know how long the moment will last.
Cambridge resident Geoffrey Stevens is an author and former Ottawa columnist and managing editor of the Globe and Mail and Maclean’s. He welcomes comments at geoffstevens40@gmail.com