On Abortion: A Discussion Prompted by the Pending Overruling of Roe v. Wade

On Abortion: A Discussion Prompted by the Pending Overruling of Roe v. Wade

May 4, 2022

 

On Monday, May 2, 2022, the online news source Politico published what it said was a draft opinion of the United States Supreme Court in the case of Dobbs V. Jackson Women’s Health Organization, written by Justice Samuel Alito, that overturns Roe v. Wade, the 1973 Supreme Court case that established a woman’s constitutional right to an abortion within certain limits and the case of Casey v. Planned Parenthood, a later case that affirmed Roe while changing its standard for when abortion was constitutionally protected.[1] In his draft opinion Alito says:

 

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty. [Cites omitted.]

 

Alito doesn’t think the right to abortion meets that standard for unspecified rights, and he ignores the Ninth Amendment’s statement that the specification of certain rights in the Constitution doesn’t mean that the people don’t have other ones as well.

The day after Politico published Alito’s draft the Supreme Court confirmed the authenticity of the document as a true Supreme Court draft opinion. Chief Justice Roberts stressed that the draft was not the decision of the Court. He started an investigation into the leak of the document as though the leak were more important than the appalling result Alito has reached. We now know that the document Politico released is indeed something Justice Alito actually wrote and said was the opinion of the court. That Alito called his draft the opinion of the court strongly suggests that a majority of the court’s justices has voted to overrule Roe. It seems that it will take a miracle to stop the court from abolishing a well-established constitutional right when it issues its final decision in the Dobbs case, which should happen next month. I am not presently a lawyer, I do however have a legal education and practiced law for more than twenty years before I resigned from the bar when I changed professions. I hope I can here shed some light on issues that abound around an overruling of Roe. Some of my discussion here is a bit technical; but we are dealing with law here, and law can be nothing if not technical.

First, it appears that Justice Alito’s draft opinion is wrong from its very first sentence. The opinion begins, “Abortion presents a profound moral issue on which Americans hold sharply conflicting views.” That statement is factually correct, but it completely misconstrues the function of any court. A court is a public institution the function of which is to decide questions of law not questions of morality.[2] Law may be grounded in certain fundamental moral concepts. For example, society believes that unjustified killing of a human being is immoral, so the law makes murder a crime. In a murder case it is not the court’s job to decide the morality of unjustified killing. Its job is to see that the law against murder is properly interpreted and applied in the case before it.

Justice Alito gets his opinion off to a very bad start when he raises the issue of morals not of law in his very first sentence. Yet that sentence is quite telling. The conservative majority on the US Supreme Court clearly sees abortion first of all as a moral issue not a legal one. Of course each Supreme Court justice is entitled to her or his personal opinion about the morality of abortion or any other issue as is any other American. What no judge may do, however, is decide legal questions solely on the basis of that opinion. In theory at least, no judge is permitted to decide a case merely because they agree or disagree with some moral principle. This legal precept may be observed more in the breach than in observance. Nonetheless, it remains part of the foundation of the entire American legal system. Unfortunately, the first line of Alito’s opinion at least hints that the Court is prepared to decide Dobbs precisely on moral rather than legal grounds—their moral grounds not mine nor I hope yours.

Another, perhaps more obscure, legal concept that is just as foundational for our legal system is in play in Dobbs. It is the issue of stare decisis. Stare decisis states that subsequent cases involving a legal issue that was involved in an earlier case should be decided on the same legal basis as the previous case that involved that issue. It is the reason the law looks to the precedent of earlier cases when determining what the law applicable to the case before it actually is. American law includes the idea that a law or court interpretation of a law that has been in effect for a long time should remain in effect unless circumstances have changed since the law came into effect in a way that dictates that the law be changed not to be moral but to be legally correct in the case’s actual context. Stare decisis does not mean that the Supreme Court cannot override one of its prior decisions, but it does so rarely. It is more likely to distinguish the case before it from the earlier case on the basis of the facts of the case if it wishes to avoid the effect of the earlier decision. The Supreme Court has however overruled earlier decisions in the past.

The classic case of the US Supreme Court overruling a prior decision, if actually only by implication, is the case of Brown v. Board of Education, the 1954 case that found racial discrimination in public education to be unconstitutional. In 1896 the court decided the case of Plessy v. Ferguson. In that case a man who was actually 7/8 white and only 1/8 Black had been convicted of a crime under a Louisiana law that mandated separate cars on public rail systems for “Colored” and white passengers. Mr. Plessy, despite his genetic heritage being mostly white, was considered Black under Louisiana law.[3] He sat in a whites only car and refused to leave when ordered to do so. He defended the case brought against him on the grounds that the Louisiana law in question violated the equal protection clause of the Fourteenth Amendment. He was asking the Supreme Court, in effect, to overturn all of the country’s Jim Crow laws as unconstitutional.[4] Respondent Ferguson, who had been the trial judge in the trial in which Plessy was convicted and who had thus ruled against Plessy’s constitutional defense, argued that the Louisiana law in question did not violate the Fourteenth Amendment because it expressly stated that the racially segregated rail cars had to be “equal.” In a 7-1 decision (with one justice not participating), the Supreme Court upheld Plessy’s conviction. It expressly held that racially segregated public facilities did not violate the US Constitution if they were separate but equal. People familiar with Plessy today consider it to be perhaps the worse decision the US Supreme Court has ever made (though I would put the earlier Dred Scott case, which held that Black people, whether enslaved or free, could not be citizens of the United States right there with it for that dubious distinction). The Supreme Court case known as Citizens United that opened the floodgates for private money to determine the outcome of elections is another example of the court getting an issue of vital importance just flat wrong.

By the late 1940s and early 1950s civil rights organizations, including the NAACP, were filing numerous cases around the country attacking the doctrine of separate but equal in public education. This noble effort to end racial segregation in public schools led eventually to the 1954 US Supreme Court case of Brown v. Board of Education. In its opinion, the Court reviewed sociological and other evidence of the harm supposedly separate but equal education was doing to Black schoolchildren. Quite correctly, it found that harm to be substantial, leading to among other things a sense of racial inferiority among those children. The Court ruled in favor of the plaintiffs. It held separate but equal public school systems to be unconstitutional.[5] Somewhat oddly, Brown ignores Plessy and does not expressly overrule it. Nonetheless, Brown overrules Plessy in effect, and Plessy has not been the law of the land since the Brown decision.

It is a serious legal question whether a court should consider the consequences of its decisions for real people or only the legal soundness of the decision. In theory the answer is that it should only be concerned with the legal soundness of the decision. That’s why former Chief Justice Rehnquist could say that innocence is no reason to overturn a legally sound conviction for capital murder, with legally sound meaning that the law was properly interpreted and applied in the case though the jury reached the wrong verdict. (Yes, he really did say and imply that.) In practice, courts do and really should consider how their decisions will impact real people in the real world. That’s what the Brown court did when it considered the harm separate but supposedly equal public school districts were doing to Black schoolchildren. In considering whether or not to overrule Roe, should the Supreme Court consider only purely legal abstractions? Or should it consider what overruling Roe would mean for real people in real life? The answer seems quite obviously to be the latter.

So could today’s Supreme Court overrule Roe in the current Dobbs case? Yes, as a matter of law it could (and of course there’s no one with the authority to stop the Supreme Court from doing whatever it wants). American conservatives, most passing as Christians, have been trying to get the Supreme Court to overrule Roe since the day that decision was first issued. Republican politicians have been promising their conservative base for years that they would get it done, but so far they haven’t delivered. One of the great tragedies of American history is that the would-be dictator Donald Trump, in his one term in office, got to appoint three Supreme Court justices (with the acquiescence of the rubber stamp Republican controlled Senate of course). In their Senate confirmation hearings, none of those nominees said they would vote to overrule Roe. Some suggested, at least in private discussions with senators, that they considered Roe and Casey to be settled precedent. Clearly they believed exactly the opposite.

So the Supreme Court can overrule Roe v. Wade. The next question is whether or not it should. Perhaps unfortunately, I must begin my discussion of that issue by conceding a point to Justice Alito. Roe is a miserably written decision. I read it when I was in law school between 1978 and 1981, and I still remember how disjointed and illogical it is. It could have been written much more directly and clearly. Justice Blackmun, who wrote for the seven justice majority in the case, could simply have said Griswold v. Connecticut, a 1965 case that I will discuss further below, established a constitutional right of privacy, abortion is an intimately personal and private decision that the government has no business getting involved in, so abortion is a constitutional right. Instead he wandered all over the place with facts and arguments that just don’t hang together. Still, Roe reached the right result if only because, as I believe, abortion truly is a private matter and that the only thing worse than legal abortion is illegal abortion.

So, is the fact that a Supreme Court decision that reached the right conclusion but was miserably written grounds for overruling it? Hardly. Consider again the cases of Plessy and Brown. The problem with Plessy wasn’t that it was badly written. The problem was that it had become clear that the holding in that case was profoundly unjust. The justices of the Supreme Court in Brown knew in a way the justices in Plessy did not just how damaging the doctrine of separate but equal was. If we accept the legal and moral equality of all people as the law, common experience, and simple human decency say we must, the falsity of Plessy is obvious on its face. Plessy was just wrongly decided, and the Brown court was perfectly right in overruling it in fact if not in so many words.

Is Roe false on its face the way Plessy was? To answer that question we must begin by looking at the case on which Roe is (or at least should have been) primarily based. That case is Griswold v. Connecticut, a case decided in 1965, eight years before Roe. Griswold involved a constitutional challenge to a Connecticut state law that prohibited any person from using “any drug, medicinal article or instrument for the purpose of preventing conception.” By our standards today a more absurd, invasive law can hardly be imagined. The case, however, was decided in 1965, and our considering a law to have been absurd and invasive was not at that time grounds for ruling it unconstitutional.

So how did the Griswold court reach its conclusion that the Connecticut law before it was unconstitutional? The several different justices who wrote in support of that ruling found a “right to privacy” in the US Constitution. They had to concede that the Constitution does not expressly create or guarantee a right to privacy. The word privacy does not appear in it. Nonetheless, different justices found a right to privacy necessarily implied variously in the Fourth, Ninth, and Fourteenth Amendments to the Constitution. Justice Douglas, writing for the majority, asked, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.” The court found, some would say created, a constitutional right to privacy, a right which the Connecticut anti-contraception law obviously violated.

The legal question at issue in Roe was, or at least should have been, whether or not the right to privacy the Supreme Court established in Griswold with regard to contraception applied to a woman’s decision to terminate a pregnancy. The answer to that question appears to me to be an obvious yes. First of all, pregnancy is of course a possible result of sexual intercourse. Griswold found in effect that contraception is also a matter directly connected with sexual intercourse, and sexual intercourse, at least within the bounds of marriage, is none of the state’s business. If it’s none of the state’s business with regard to contraception, how can it be the state’s business with regard to abortion?

The opponents of abortion assert that fertilized embryos and non-vital fetuses are human beings entitled to legal protection. This claim is ultimately completely untenable, but opponents of abortion assert it so often that we cannot simply ignore it. Abortion opponents often express this contention by saying that the potential for life is the same as life. Yet it is simply obvious on the face of the matter that potential is not the same as being. We humans are all born with the potential to become or do anything that is possible for humans and for our particular way of being. When I was born I had the potential to become a famous concert violinist or president of the United States (not that I would ever want to be president of the United States in today’s world). I assume that you did too. Yet I am not a famous concert violinist. I assume that you aren’t either. I know that unless you are Joe Biden neither of us is president of the United States either. A person’s potential simply is not who a person is. It is only what a person may become.

Embryos and un-vital fetuses in a woman’s body do indeed have the potential to become human beings given the right circumstances of their gestation and birth. Development from a fertilized egg is after all how we all became human beings. Yet the same thing can be said of an unfertilized egg cell in a woman’s body. Should medicine stop ovulation and menstruation because they result in the loss of an egg that had the potential, under the right circumstances, to become a human being? Of course not. Should all men be required to have vasectomies because their ejaculation results in the deaths of thousands of sperm cells, each of which had the potential, under the right circumstances, to become a human being? Of course not. It is of course true that something specific has to happen for an egg or a sperm cell to become a human being. A sperm must fertilize an egg. That reality, however, just adds one preliminary step to the process of an embryo developing through a myriad of other necessary conditions into an actual human being.

So, is an embryo a human being? Of course not. An embryo is a collection of cells developing in a certain way. They are human cells, but they are not a human being. Precisely when in gestation a fetus becomes a human being is hard to determine. We simply cannot deny that truth. Roe dealt with this issue by using a trimester standard. Casey affirmed Roe but changed the standard for when a fetus becomes a human being to fetal viability, the ability of fetus to survive outside the womb. Abortion law must include some such standard for determining when, in a majority of but not all cases, abortion is no longer permitted or at least is not constitutionally protected. Fetal viability is probably the best we can do for such a standard. Perhaps anti-abortion zealots can take some comfort from the way medical science keeps setting the time of fetal viability earlier and earlier in the process of gestation.

In any event, neither an embryo nor a non-vital fetus is a human being. That truth seems so obvious to me that I did not include this response to the claim that they are in the first draft of this post.[6] The assertion that embryos and non-vital fetuses are human beings would be laughable were the forces of the American right so vigorous in proclaiming that falsehood as true in their attempts to assert governmental control over women’s bodies and their decisions about sex and pregnancy. They are not worth considering further here.

What, after all, could be more personal, more private, than a woman’s decision of whether or not to carry a pregnancy to term and deliver a baby? I can think of nothing that is. The question of pregnancy involves the most personal, private parts of a woman’s being. It’s her body, her mental health, and her financial wellbeing, among other things, that we’re talking about here. It seems to me obvious that the state has no right to tell a woman what she must and may not do with regard to the internal, private functionality of her own person.

There is another important consideration here. As noted above, in Brown the Supreme Court considered the harm separate but (supposedly but not really) equal public education was doing to Black schoolchildren. It was perfectly appropriate that it do so. The court’s finding that the harm was substantial played perhaps a decisive role in the Court’s finding separate but equal public school systems to be unconstitutional. There is a parallel issue in Roe. What, the court must ask, are the negative consequences for women from a ban on all or most abortions? Tragically, the answer to that question is not hard to find in our nation’s history before Roe. The illegality of abortion in many states before Roe did not stop abortions. It only stopped legal abortions. Illegal abortions were common. They may on occasion have been performed by qualified medical professionals. In a great many cases, however, they were performed by con artists who had no business or right to perform any medical procedure on anyone. Many, many women who had such abortions became seriously ill with infection and bleeding. Some needed surgery from a qualified physician to repair damage the hack who performed the abortion had done to them. Some lost the ability to bear children altogether. Some died. Some women tried to induce abortion themselves, an inherently very dangerous thing to do. A metal coat hanger became a symbol of the harm illegal and self-attempted abortions could do and far too often did to desperate women.

Only the woman who is pregnant can know what it would mean to her to bear and carefore a child. So many things go into answering that question. The woman must consider: Am I psychologically able to raise a child? Do I want to be a parent at all? Of if she already is one, which many women who get abortions are, what would adding a new child to her family mean for her and the family? She must ask: Can I afford a child? Or another child? Those are all private questions with private answers that only the pregnant woman can give. The state, it seems obvious to me, has no business or right to interfere with anyone’s answers to them for herself and the conclusions she draws from them.

Pregnancy of course often occurs between two people who love each other and want to have a child together. Many of us have been blessed to have that situation in our lives. Yet pregnancy also occurs in far, far less ideal circumstances. It is often unintended. No contraceptive device or product is one hundred percent effective. Sometimes the circumstances leading to an unwanted pregnancy are far worse than a failed contraceptive. Unwanted pregnancies occur as the result of rape and incest. Some state statutes have exceptions to a ban on abortion for those tragic cases, but many, including many created very recently in anticipation of Roe being overruled, do not. What business or right does the state have to tell a fourteen year old girl raped by her uncle and therefore pregnant that she must carry the fetus to term and become a mother while she is still a child herself? Absolutely none that I can see. It would very likely damage a female body that is too young to bear the strains of pregnancy. Forcing this young victim of rape and incest to carry a fetus to birth would be cruel and inhumane in the extreme.

So we see that there is a plethora of reasons for keeping abortion legal. Yet it appears that the Supreme Court is about to allow states to ban it by overruling Roe. What would repealing the case that found a constitutional right to an abortion do to our country’s legal landscape with regard to abortion? The answer to that question is a bit more complex than one might expect. First of all, overruling Roe would not make abortion illegal everywhere. It would leave the question of the legality of abortion up to the states. As I understand it, something like twenty-two or twenty-three states currently have on their books either a law that bans abortion or that would be triggered to come into effect and ban abortion the minute Roe is overruled. A few other states may pass laws banning or severely restricting abortion once Roe no longer prohibits such laws.

Other states, including my home state of Washington, have laws in place that protect a woman’s right to choose. Overruling Roe would not by itself invalidate those laws. Women in states with such laws would still have a right to abortion. Women from states that did not give them that right could travel to states that do to obtain an abortion. We must recognize, however, that many women who have abortions today are quite poor, their poverty probably being one of the main reasons they do not want to carry the pregnancy to term. Overruling Roe would leave open the possibility of women in states that do not permit abortion going to states that do. As a practical matter, however, doing so would be financially or otherwise impossible for a great many women. Leaving home and traveling sometimes hundreds of miles each way to have an abortion is theoretically possible, but it hardly solves the problems created for many women when their state prohibits or severely restricts abortion.

Unfortunately, there is another legal issue we must consider. There are two sides to it. I have recently heard that that anti-abortion extremists are working on having Congress pass and the president sign a law banning abortion nationwide. They won’t try to get such a law enacted until the Republicans again control both houses of Congress and the White House, but who is to say that couldn’t be the result of the 2024 election? When someone proposes such a law, the question immediately arises of whether or not the federal government has the legal authority to enact it. Many Americans do not know that the US Constitution was drafted in considerable part to limit the power of the federal government. Every federal law must be based on some constitutional provision that authorizes the federal government to enact and enforce it.

The constitutional provision very frequently used as the constitutional authorization for federal laws meant to apply nationwide to private individuals and businesses is Article 1, Section 8, Clause 3 of the Constitution known as the Interstate Commerce Clause. That provision gives Congress the power to regulate commerce “among the several States,” among other things. Court rulings have interpreted the Interstate Commerce Clause very broadly. Essentially everyone in this county is engaged in interstate commerce within the meaning the courts have given to that phrase. Unless you have never purchased or used anything made in or having traveled across a state other than the one in which you reside, you are engaged in interstate commerce. Laws like the 1964 Civil Rights Act rest upon the Interstate Commerce Clause. Without that clause the federal government would be powerless to prohibit racial or other forms of discrimination in non-governmental employment, housing, public accommodations, and other aspects of life the way the Civil Rights Act does.

The federal government could probably use the Interstate Commerce Clause as the basis for a law prohibiting any person or organization engaged in interstate commerce from performing or receiving an abortion, though doing so might possibly be a constitutional stretch. Surely the framers of the Constitution never intended the Interstate Commerce Clause to apply to medical procedures. The courts could possibly rule that the clause is not a constitutional basis for a law banning abortion. Courts however are impossibly unpredictable when it comes to deciding previously undecided legal issues. My fear is that a federal law banning abortion nationwide based on the Interstate Commerce Clause would survive constitutional scrutiny. The Senate filibuster rule, which requires sixty votes rather than a mere majority of fifty for most bills to pass, might be our best hope for stopping any such law from coming into force.

There is also the matter of sexual discrimination when it comes to banning abortion. Patriarchy and androcentrism abound in this country, and they are very much at play in the movement to prohibit all abortion. Yes, some women support abortion bans or at least say that they do. Nonetheless, the efforts to outlaw abortion come mostly from men. Sadly, many of those men are clergymen in churches that themselves discriminate grossly against women. To many women, it feels like efforts to ban abortion are efforts by men to assert male control over female bodies. They are quite right to feel that way. A state telling a woman that she has no right to control her own body is telling her that she is less than a fully equal human being. It says we men know better than you do what it is moral and permissible for you to do even with regard to your most private decisions. It says to women you don’t control your body, we do. No one is trying to stop men from taking medical steps to avoid impregnating a women like have a vasectomy. Damn it, women are every bit the equals of us men. They have every right we have whether the law recognizes that legal and moral right or not. It is way past time for all Americans and American law to recognize the foundational, inalienable equality of women and to let them make their own sexual and reproductive decisions.

The repeal of Roe could well be the start of a very bad legal trend in this country. The Rev. Dr. Martin Luther King, Jr., famously said, quoting an earlier source, that the arc of the universe bends slowly, but it bends toward justice. Over the long haul that claim has been true of the United States as well. Our country was founded on slavery and racism. It took far too long and far too much blood, but we ended slavery. In 1857 the Supreme Court said Black people could not be US citizens. In 1868 we passed the Fourteenth Amendment to the US Constitution that says that all persons born or naturalized in the United States are citizens of the United States and of the state in which they reside. In 1896 the Supreme Court said so-called racially separate but supposedly equal public facilities are constitutional. In 1954 the Supreme Court said they aren’t. We passed the Civil Rights Act of 1964 and the Voting Rights Act of 1965. For most of our history LGBTQ+ people had to hide in the closet because it wasn’t safe to be out. In 2015 the Supreme Court said they have a constitutional right to same-gender marriage. In 2020 the Supreme Court said that the 1964 Civil Rights Act protects LGBTQ+ people from workplace discrimination. From its inception that Act has also protected women from workplace discrimination. We’ve still got a very long way to go to make this country actually be what it has always claimed to be. We have, however, mostly been moving in that direction.

Overruling Roe could well be the beginning of a reversal of that progress. Supreme Court cases like most of those mentioned above expanded civil rights. I am unaware of any Supreme Court case from Brown onward (or ever actually) that has taken an existing constitutional right away from American citizens. That is precisely what overruling Roe would do. So we have to ask: What constitutional right will our zealous reactionaries and their compliant Supreme Court take away from us next? Perhaps freedom of religion so they can impose an ignorant, bigoted form on Christianity on our nation? Or perhaps freedom of assembly because they hate protesters, especially Black protesters, demonstrating against racist cops killing innocent Black people? They’ve already begun to attack freedom of the press in some states with their ban the books campaigns. Will they revoke freedom of the press so only tracts supporting their ignorance and bigotry will be published just like only tracts supporting the Communist Party were printed in the Soviet Union? I wish I could say it isn’t possible, but it is.

The rights I just mentioned are of course specifically mentioned in the Constitution, so perhaps all a reactionary Supreme Court would let the zealots do is restrict those rights until they are essentially meaningless though they still appear in the Constitution. The situation is probably more serious with regard to constitutional rights recognized by Supreme Court cases that stand on the right to privacy established by Griswold. Two years after Griswold the Supreme Court issued its decision in Loving v. Virginia. That case ruled laws against mixed-race marriages to be unconstitutional. The case that creates a right to same-gender marriage could very much be at risk. Indeed, there is no guarantee that the Supreme Court might not overrule Griswold itself. Some commentators in the past two days have mentioned that as a possibility given the language in Alito’s draft opinion. Our country’s right-wing fanatics and their friends on the Supreme Court and in Congress are making this a scary time indeed.

So what are we Americans who support a woman’s right to control her own body to do? Those of us who, like me, live in states that authorize abortion must begin by defending their state’s abortion rights statutes with everything they’ve got against all challenges. We must vote only for candidates for state office who support women’s rights, including the right to an abortion. If a bill is introduced in such a state’s legislature to repeal the state’s abortion law, we must hound our elected representatives until they agree to vote against the bill. If the bill passes, we must hound our governors until they agree to veto it. Sadly, none of that will matter if there comes to be a valid federal law banning all abortion. Such a federal law would take precedence over a conflicting state law. Until that tragic law arrives, if it ever does, states that protect the right to an abortion will be the only hope women deciding to terminate a pregnancy will have. I’ll suggest this too, though I know of course that it won’t be possible for many. If you live in a state that prohibits or unreasonably restricts abortion, move out. Move to a state that recognizes that women are human beings with the right and the ability to make their own decisions about their own bodies.

Those of us who support a woman’s right to make her own reproductive decisions must boycott the states that don’t to the greatest extent that we can. If you don’t live in one of those states, don’t go there for any reason. Give that state none of your business or tourist dollars. To the extent you’re able to identify them, buy no products made in a no choice state or by a company headquartered in such a state. Economic pressure might be able to cause some business interests to pressure their state to admit that women are people and repeal their state’s anti-abortion laws.

The future for abortion rights and the equality of women does not look bright in this country. It is virtually certain that the Supreme Court will soon overrule Roe v. Wade and Casey and permit the states to outlaw or severely restrict a woman’s right to control her own body and make her own reproductive decisions. It is virtually certain that anti-abortion zealots will try to have abortion outlawed nationwide through action both in individual states and at the national level. We must all work, hope, and pray that somehow, one day, the tide of discrimination we are now seeing in our country will turn back toward justice. May it be so.

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[1] For the sake of simplicity I will mostly refer only to Roe.

[2] There’s a famous story about a crusty old law professor who said to a bunch of first year law students, “You say you’re here because you want to work for justice. This is a law school not a justice school! If you want to work for justice go to seminary!”, which some of us have actually done. The same thing could be said about working for morality.

[3] The similarity between that provision of Jim Crow law and the laws on who was Jewish in Nazi Germany is striking and terrifying.

[4] Plessy also argued that the Louisiana law violated the Thirteenth Amendment, which outlaws slavery in the United States. I consider that part of Plessy’s defense to be, frankly, frivolous. I will not consider it further here.

[5] One of the attorneys for the plaintiffs in Brown was Thurgood Marshall, who later became the first Black justice on the US Supreme Court.

[6] This is a second draft of this post. In my first draft, which I did post, I did just ignore this claim. My wife Jane suggested that address it in this draft. As usual, she was right.