Regulation of women’s bodies reinstated by five men and one woman justice of the SCOTUS by overturning two key abortion cases – Roe and Casey – removing from constitutional protection women’s bodies. SCOTUS obliterated a fundamental right, returning to the states unbridled power to control bodies born female. Within minutes after the Alito opinion hit the Internet, Republican controlled state houses immediately triggered laws outlawing abortion and, in some cases, criminalizing it.
What does this mean? How does it affect those of us who live in Ulster County, New York? No incidents have occurred here within the confines of this county or state, so why care? First, if by some twist of fate, radical Republicans take over New York State government or Congress passes a national anti-abortion law, it will matter not whether you live in Woodstock, New York or Woodstock, Georgia. Second, even if ensconced in the great state of New York, you should care even if sans uterus or capacity to birth.
Consider the following:
I. What if, while visiting your granddaughter in Oklahoma, you learn she is pregnant? Your granddaughter isn’t leaving Tulsa to start MIT until the end of August. She wants to terminate the pregnancy; her mother and father both agree. Concerned, you text a colleague in New York informing him that you, her mother and father wish to arrange a consult for an abortion. The consult will take place at the local hospital in Kingston, New York, and the parents will fly with their daughter to New York. You will pick up your granddaughter, daughter and son-in-law at Albany International.
By texting this message whilst in Oklahoma, you, your daughter and son-in-law committed a felony – specifically, conspiracy to abet an abortion. Based on the text, family members face conviction, accompanied by a possible prison sentence.
II. What if your granddaughter in Oklahoma has a spontaneous miscarriage? Thirteen percent of all pregnancies result in miscarriages. Should the police investigate? You bet. Think of it this way: If there is an unexplained dead person in your home, will law enforcement investigate to determine if the death was caused by foul play? Simple answer: Yes.
III. Your granddaughter just graduated from MIT with a PhD in Nuclear Physics. She has an interview with the leading nuclear power plant in Tulsa. At the interview, she’s asked if she’s pregnant. She states, “No. I’m lesbian.” The interviewer smiles, opining, “But you are of childbearing age.” Your granddaughter is then informed, because she is of childbearing age, while her sexual orientation is irrelevant, her ability to reproduce is extremely relevant. Consequently, acceptance of the job is conditioned upon her written acceptance to submit to weekly pregnancy tests. The company seeks to protect itself from criminal liability, if (a) she spontaneously aborts or (b) the new job poses health risks to the zygote.
Sound strange or draconian? These were the issues fought before Roe v. Wade and the fundamental right to intimate privacy became law. And while these may be hypothetical now…wait.
Alito decision is anti-woman, not pro-life
It is delusional to believe Alito’s decision has anything to do with pro-life. What makes this eminently clear is what Alito (or perhaps his law clerks) relied upon to craft this decision. First, Alito tells us because abortion is not specifically enumerated in the Constitution, one must consider the legal landscape at the time the Fourteenth Amendment was enacted. Alito opines abortion must conform to conceptions of ordered liberty rooted in our history at the time the 14th Amendment passed in Congress. Thus, the consequential time is 1868: three years post-Civil War.
In 1868, women were not legal persons. As non-legal persons, those rights which devolve from the Constitution were not afforded to females. Civil, political and legal rights were conditioned on an accident of birth, regardless of race, age, economic status or citizenship. Moreover, women’s identity was subsumed into the identity of her father or husband. Just as men had power over chattel, power was extended over the lives of women. Husbands were empowered to exercise their will over wives as well as children. Thus, husbands could beat their wives and engage in forced sexual intercourse, a/k/a rape. Indeed, the marital rape exemption, appended to sexual assault statutes in US penal law, is traced back to Lord Matthew Hale, the gentleman from the 17th century cited by Alito in the Dobbs decision. Marital rape was a nullity because, as Hale opined, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”
Lord Hale’s marital rape doctrine, first recognized in the United States in 1857, was incorporated into New York Penal Law. Sec. 130.15, New York’s marital rape exemption, was not declared unconstitutional until 1984. In People v. Liberta, the New York State Court of Appeals found such laws unconstitutional in large measure due to the rights enumerated in Roe & Griswold. The Court stated:
“Rape is not simply a sexual act to which one party does not consent. Rather, it is a degrading, violent act which violates the bodily integrity of the victim…To ever imply consent to such an act is irrational and absurd. A marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has the same right to control her own body…”
The use of terms such as “bodily integrity” and “control her own body” are key to understanding the importance of Roe. Abortion was an outcome of the Roe court’s articulation of the fundamental right to control one’s “own body.” The state had limited power to interfere with our bodies, whether in relation to health care, reproductive health, medications we choose to accept or deny, sex acts we engage in privately or to whom we share our bodies. Roe recognized and then ensured women would have this fundamental right.
Alito would vigorously contest the New York State Court of Appeals in Liberta, because conceptions of bodily integrity are a consequence of the liberty/privacy interest articulated in the 14th Amendment substantive due process clause articulated in the 1970s. Alito’s reliance upon 1868, as well as the crabbed American and British juridical intellectuals, does more than underscore the legal paucity of his decision; it also demonstrates his contempt of women, as well conceptions of fairness under law.
Of equal importance is the threat this decision places on such accepted and integral fundamental rights as the right to marry, regardless of the sex or ethnicity (race) of the parties; the right to contraception; the right to raise a family; and the right to private intimate sexual behavior. We accept these rights without ever thinking about them, whether it’s to marry someone of the same sex or a different ethnicity, to prevent pregnancy, to educate our children and raise them within the values one’s family holds dear or engage in sexual activity beyond the missionary position. All of these, as articulated by Thomas in his concurrence, are no longer safe. I do wonder whether Thomas would find protection of a man’s right to birth control, via a male birth control pill or vasectomy, unprotected by the US Constitution, devolving such matters to the vagary of state power. What I do know: We must confront the Dobbs decision, now and until it is a faint long-gone nightmare.
What to do until the revolution comes
First, educate yourself. Don’t believe me, MSNBC or that wretched compilation of “news” at Fox. Get the decisions mentioned, and yes, read them. Follow up with articles written about the issues identified in this piece and which grow from your readings. Second, vote, vote, vote! Third, join a group working to protect women’s fundamental rights and lives. Open your hearts and homes to women and girls who may need an abortion and help those unlucky enough to live in anti-women states like Texas, Oklahoma et cetera into states where abortion still exists. Fourth, become politically active; and fifth, do not remain silent; as Lincoln once reminded, “Silence makes cowards of [us].”
Take a knee.
Kris McDaniel-Miccio is a legal scholar, an emerita professor of law and a Woodstock resident.