Dobbs vs. Jackson Women's Health Organization

Dobbs v. Jackson Women's Health Organization

I feel compelled to write something about this US Supreme Court decision.  It was announced on June 24th, and I've been having some trouble with it.  The decision triggered a lot more than state laws; it triggered a cascade of thoughts and feelings and memories for me.  I'm hoping that by writing about some of them, I'll be able to clarify plans I can make for the future.

I've read a lot of articles about the decision - on both sides of the issue.  I know that there are many who say that the Court didn't take away any rights, that all it did was send the issue back to the individual states to decide.  I know that there are many who say this was important to protect the right to life.  I know that there are many who say that this is emphatically not the first step of a reversal of many other rights - contraceptives, gay marriage and so forth.  I think that the people who say these things are seriously mistaken.

To begin with the 3rd point, Justice Thomas told us in his concurrence that he absolutely thought the Court should reconsider its decisions on issues such as those.  Justice Alito, who wrote the Dobbs decision, said specifically that this ruling didn't apply to non-abortion related subjects (i.e. non-child-bearing subjects) - but let's start with the contraception decision.  

Back in 1965 in Griswold v. Connecticut, the Court said multiple amendments to the US Constitution (including some in the Bill of Rights) clearly imply a right to privacy: though they don't state this right specifically, it's obviously the underpinning of those varied amendments.  Having found such a right existed, the Court said the state of Connecticut was violating this right by making the use of contraceptives illegal.  In Griswold, the people involved were a married couple.  The Court said people have a right to be intimate with each other, and contraception is a reasonable aspect of that intimacy.

Eight years later, in 1973 in Roe v. Wade, the Court reiterated its finding that a right to privacy exists in the Constitution, and that a woman has that right to decide for herself whether to terminate a pregnancy.  The Roe decision extended the privacy right in Griswold to a woman's right to control what happens to her own body.  

The Dobbs Court has overturned its decision in Roe, saying in essence that the federal government has no opinion on who has the right to make reproductive decisions for a woman, and the 50 states can each thrash out that question for their own citizens. 

So we now have a situation where the Court says a federal right to privacy doesn't exist regarding the right to make one's own reproductive choices.  Note that that right was first expressed in a right to choose to use contraception.  Contraception is quite clearly relevant to the right to make reproductive decisions.  And since the right to use contraception was based on the right to privacy that no longer exists for abortion, it takes no stretch of the imagination to see that the Court could also determine that there's no federal right to use contraception.

One of the oldest arguments against gay marriage is that it doesn't promote procreation which, many religions say, is the fundamental basis for marriage.  Since only a male and a female together can create a baby, any other union violates the whole idea of marriage, they say.  In 2015, the Court in Obergefell said that both states and society have given preferences to those who are married, and have limited marriage to those of the opposite sex.  Although this decision says the law must treat gay people equally to straight people, it based that decision on these same privacy cases.  Given that fact, and given the question of procreation, a case could certainly be made that it falls under the recent Dobbs reasoning.

Tangentially related to Obergefell is the 2003 decision in Lawrence v. Texas.  This was also based on a right to privacy and said the state couldn't criminalize same-sex sex.  Basically it said the government needed to stay out of people's bedrooms.  So not obviously abortion related, but again sex between 2 people of the same sex cannot create a baby - which is the only legitimate reason to have sex, according to many opponents of this decision.  There are still well-established religions that maintain that procreation is the only point of having sexual relations.  And if you're too young to remember what life was like for gay people before Lawrence, I can assure you that yes, police actually did crash into people's bedrooms and arrest them.

Griswold, Obergefell and Lawrence are the three decisions Thomas listed in his opinion as being ripe for reconsideration, and I wasn't the only one who noted his failure to include Loving v. Virginia on that list.  That decision from 1967 said it was okay for 2 people of different races to marry.  In Loving, the couple's races were Black and White.  (And as we all know, Thomas himself is married to a woman not of his race.)  In the Loving case, the Court was again saying the government needed to stay out of people's bedrooms, and that people had a right to marry anyone they chose without consulting the government.  But one of the underlying and unstated factors in that case was the white supremacy notion of "racial purity," a concept that refers to the children of a mixed-race couple.  It's doubtful the Court would acknowledge such a belief, but many people hold it, and Loving is clearly related to a right to privacy and to the question of who decides when people can bear children.

These are the reasons I don't think it's alarmist, as some have said, to be concerned about the future viability of these decisions.  I don't see that it's an overreaction.  In fact, this group of cases is so bound together - both logically and legally - that it's hard to see how they can be separated.  The Dobbs Court said the federal government no longer protects a woman's right to make procreation decisions for herself, but that the state governments do get to decide whether to protect that right.  And if deciding who gets a say in procreation is the point, how on earth can anyone assume at least the right to use contraception isn't next.  

Regarding the 2nd point, "right to life" is the slogan used interchangeably with "abortion," and I want to take a minute to point out why that slogan has nothing whatever to do with this case.

The entire focus of the abortion opponents is on birthing a baby.  They carefully ignore the life that's already standing right in front of them: the pregnant female.  In effect, they're insisting that the only one with a right to life is the one that's not yet born.  And increasingly, abortion opponents are rejecting any exceptions to that idea - no exception for rape or incest or even to save the life of the mother.  Their field of focus is narrowing and purifying to say "if we want to protect those who aren't yet born, we can't say there are any situations where some are expendable."

So not only are these abortion opponents ignoring the life already in being in front of them, they are increasingly turning her into little more than an incubator.  

I know that there are some states that make an exception for rape or incest, but most of those insist that the exception apply only to crimes that have been reported to the police.  A 12-year-old girl who has been impregnated by her uncle or step-brother is often lucky if her parents believe her.  The idea of exposing these family members to the public eye in the form of a police report would be difficult under any circumstances.  For a 12-year-old it verges on cruelty to expect it.  And if that 12-year-old is pregnant - she would need to be an exceptionally strong person, even if she managed to get parental support.  So it's ludicrous to maintain that this sort of exception actually exists.  It is instead a fig leaf to cover the shame and cruelty of those who support it.

There are also states that don't even provide those exceptions but do still include an exception to save the life of the mother.  But like those other 2 exceptions, this one doesn't pass the smell test.  Doctors are already wondering how close to death the mother has to be before the exception comes into play.  An example I read of a doctor's dilemma concerns an ectopic pregnancy.  Although this condition is very rare, there are still 200,000 cases each year here in the US.  An ectopic pregnancy is one where the fertilized egg attaches outside the uterus.  Obviously that egg isn't going to thrive - or even survive for many months.  But while it's planted where it doesn't belong, it can cause the woman severe pain and bleeding.  In fact, if it's not addressed soon enough, it can cause her deadly infections or cause her to bleed to death.  Of course, doctors routinely terminate such pregnancies as soon as they're discovered.  Their question now, under these new state laws that insist a mother's life must be endangered, is at what point can they declare the endangerment.  Right away, because the fertilized egg can't survive but the mother might not either?  Or do they need to wait until she's in the emergency room and her life is clearly in danger?

There are hundreds of different medical reasons a pregnancy might need to be terminated and, up till now, doctors have treated them as medical situations.  But these new laws that criminalize a doctor who performs an abortion turn these medical situations into legal situations.  At what point is a woman's life in danger?

So there are real questions about the honesty and validity of those so-called exceptions. 

Other ways that the woman's life is being ignored by these so-called "right to life" supporters include a total lack of effort to provide health care for the woman who is carrying this child the supporters claim to want so much.  I've never heard of any of those who are against abortion pushing for funding to maternal health programs - both before and after the pregnancy.  I've never heard of support for mental health counseling, for financial aid, for health insurance (babies are expensive), for adequate nutrition, for child care needed for the kids the mother already has (which is why she didn't want yet another baby).

And I've never yet heard of any of these abortion opponents mention programs that would ensure participation of the male who was the other half of this pregnancy.  Not once.  Courts are already flooded with people who aren't paying child support; who do these abortion opponents think is going to pay for this additional child?  No, their focus is entirely on the incubator aspects of the female.

They also pay no attention to the actual life an unwanted baby can expect.  I've never heard any of these abortion opponents instituting or helping fund programs for health care for the child once it's been born.  Or for early childhood education.  Or for food shortages or housing shortages.

And these are the sorts of reasons this issue has nothing whatever to do with a "right to life."  It is about nothing except making sure a woman understands her value exists only because of her uterus and its incubator functions.

Now back to the first point, that the Dobbs Court didn't take away the right to abortion or any other right.  You can see from the related decisions I've noted above that the decision was more nuanced than that.

The Court said a woman's right to make her own decisions about procreation is no longer protected by the federal government, as it has been for the last 49 years.  Instead, the Court said each individual state can decide about that right.  So technically yes, the decision didn't take away a right.  What it did take away, though, was protection.  The protection that a big brother provides: the little states don't get to beat up on a woman when she's got a big brother to protect her.  That protection is gone.

There are now 2 generations of women who are of an age to deal with procreation who have always had that protection.  It's hard to come up with a metaphor that captures the feeling of loss.  It's not just that we've had a rug pulled from underneath us.  It's more like we've had the whole house pulled down around our heads.

For 49 years, women knew they had the right to decide whether or when they would have a child.  They knew that the mere biological fact that they had the equipment to bear children wasn't the pinnacle of their existence.

I turned 24 in 1973, so I remember the pre-Roe years quite well.  Back in the 50s and 60s when I was growing up, girls were raised to think that while we might want to grow up to be teachers or nurses (certainly not doctors, you understand), what we were really aiming for was to be a wife and mother.  We all thought that's what we wanted.  

And society set things up so that we had to fight very hard to have anything else.  My parents got a divorce in 1973 and my mother had a terrible time getting a credit card in her name.  Before the Equal Credit Opportunity Act was passed in 1974, women couldn't get credit without a co-signer on the account, preferably their husbands.  They just couldn't.  Regardless of whether they were married, whether they had jobs, whether they had provided all or part of the family income while they were married.  None of that mattered.  And that's as good an example as any of the world into which Roe was tossed.

It had been a confusing time.  The Baby Boom generation began turning 21 in 1966.  And while people may be tired of hearing about the Boomers, may have little respect for us, just think of what happened to American society back then.  There'd never been such a mass of kids before.  I'll bet few in that generation managed to get through K-12 without spending at least some of that school time in a portable building - they couldn't build schools fast enough.  But until the mid-60s we were kids.  And suddenly, we were starting to be adults.

And we were getting drafted and sent to Vietnam, and returning damaged, or returning in coffins.  And we started wondering what on earth we were doing fighting in those jungles.  The Boomers learned from the Civil Rights protesters who we had grown up watching on TV news programs, and we started protesting the war.  And there were so many of us - and we kept on coming because 1966 was barely the beginning of the onslaught.  We overwhelmed traditions that, until then, had set the rules in society.

Especially prominent among those was the tradition of marrying young, having kids, and living happily ever after.  The Boomers turned that on its ear, and the Free Love generation rose to prominence, in the news if nowhere else.  The trouble was that it took a while for what you might call the infrastructure to catch up with us: contraception was hard to obtain and not particularly effective.

I had an abortion in 1971, pre-Roe you see.  I had had a fight with my father and left my parents' house not expecting to be able to return.  I'd hitchhiked to North Carolina to spend time with a nice guy I'd met the previous year.  I thought I might be pregnant before I left but didn't say anything to anybody in case I was wrong.

I wasn't wrong.  When I missed a period, I went to the local women's health clinic who said yes, I was indeed pregnant.  At the time I had just barely turned 22, I'd dropped out of college and had no marketable skills, I was working in fast food places and laundromats, and I was smoking weed now and then with my friends.  There was no question in my mind that I could not bring a child into that life, into that world, and that I was not in a position to create a different one then.  I had to get an abortion.

Backtrack to high school.  The first I'd heard of abortion was when one of my closest friends confided that her older sister (who I knew) had gotten a back-alley abortion (though that's not what she called it) and was in terrible physical shape - bleeding and so forth - as a result.  In one fell swoop, I learned that it can happen even to very nice girls from very nice families, and that it can be deadly.

So here I was, 5 or 6 years later, desperately wanting not just an abortion, but a safe one.  Abortion was illegal in North Carolina then.  The women's health center wasn't supposed to tell me and I promised not to give them away (note I haven't mentioned which town it was even all these years later), but they gave me the phone number of an abortion clinic in Washington, DC, which was the closest place I could get a legal abortion.

I borrowed the money from the only friend I had who had a real job - one that paid real money.  I can't remember any more how much it was - maybe $150.  I paid him back $10 a month (which was more than I could afford sometimes but I had to pay him back).  I hitchhiked to DC and stayed with friends of a friend.  I was alone.

I was incredibly lucky with the clinic being such a good one - so compassionate.  They required me to watch a presentation about all the different forms of birth control that were available and insisted I choose one before I left.  And they fitted us with an IUD, or the first month of birth control pills, or a diaphragm, or whatever our choice was.  A very sweet volunteer was assigned to stay with me for the whole process, and I can still almost remember her face.  They made us stay for several hours afterward to be sure we were okay, gave us a thermometer so we could monitor whether we'd gotten an infection, and finally gave us a dime to call them in a week and let them know we were okay.  (Yes, a dime is all it took then because we were told to call collect.)

Then I went back to the home of the friends of a friend, and the next day I hitchhiked back to North Carolina.

Nobody - absolutely nobody - thinks an abortion is easy or is birth control or is no big deal.  Everybody has some regrets somewhere.  But under those same circumstances, I would still make that same choice today.  It was a terrible experience, lightened only by the extraordinary care and compassion I received from that clinic.  I would never want to repeat it, but I'd still make that same decision today.  What kind of life could I have had if I'd carried that child.  Me, an unwed mother (at a time when that mattered a LOT) without an education.  What kind of child could it have been since I'd been drinking and doing drugs while I was pregnant.  I know people overcome those same obstacles all the time, but I guess I'm not as strong as they are.  And I've never stopped being thankful that I didn't have to find that out.

Things are different today.  No young woman could easily hitchhike hundreds of miles alone today.  I wasn't forced to run a gauntlet of screaming self-righteous people sitting in judgment of me and my decisions without asking why I was doing it.

You can condemn my decision if you want.  You can slam my reasoning and my conclusions.  But if you do, you're doing it based on today's world.  What you can't do is go back to the world of 1971 and tell me I was wrong.  I wasn't wrong.  It was ghastly and I'm glad I won't have to do it again, but I wasn't wrong.  It was the right thing to do in the part of the world I lived in in 1971.

That was all very long and rambling and you might wonder what my point is.  It's that federal protection for my abortion decision that the Supreme Court gave to all child-bearing-age women less than two years later.  After Roe, it no longer mattered that North Carolina or Texas or any other state might want to ban abortions - they couldn't.  We were protected against that ban.

So the idea that the Supreme Court didn't take away any rights is nonsense.  The Court threw us back into the world I grew up in, and I'm here to tell you there wasn't much good about that world if you were the kind of female who wanted to think for herself and choose a life for herself.  Society then and its laws did everything they could to prevent me from doing those things.  And that's what Roe stopped.  And that's what the Court has taken us back to now.

The instances of the Supreme Court taking away a right that had already been granted can be numbered on one hand and have some fingers left over.  I thought they'd never do it.  Taking something away that we already had - really?  This Court has done it.  

I haven't been able to have a child in many years, but that's not really the point.  I grieve for all the women who are now living in the world I once knew and didn't like.  I grieve for all the unwanted children and the complete lack of provision for them that all these abortion opponents can't seem to be bothered to support.  I grieve for our country that will have to live through upheavals we haven't even begun to imagine yet, until this wrong has been righted.

In writing this blog I've tried to steer clear of questions about politics and religion, though I admit there've been a few times I was so heartsick I had to break that resolve.  This is one of those times.  I feel like all my insides have been ripped out - from my heart down to the bottom of my torso.  I'm still traversing the usual stages of grief, and I hope this helps me move through acceptance so I can figure out what action I can take.

And if it's of any use to any of you, then I'm glad of that.

Two additional comments.  One is that if you want an image of what life was like for women back then, watch The Post and listen to what's said about the life Katharine Graham came from.

The other: I accidentally deleted a comment someone wrote while I was trying to post it.  If it's your comment I deleted, would you please write again.  I appreciated it and others might too.  Thanks to all who have written me.