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We still do have a choice: Mid-term elections are this November

“No one believes more firmly than Comrade Napoleon that all animals are equal. He would be only too happy to let you make your decisions for yourselves. But sometimes you might make the wrong decisions, comrades, and then where should we be?” – Animal Farm, by George Orwell

The leaked Supreme Court draft opinion purporting to justify overturning Roe v. Wade indicates the Court, like Napoleon, the despotic pig of Animal Farm, is ready to again allow states to decide when women must carry a pregnancy, because they might make the “wrong decisions.”

The right to choose for or against abortion was not decided in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) based on scientific or medical findings about human development. Neither was it based on religious or ethical opinions about when human life begins, or any other idea about what is good or bad, right or wrong. It couldn’t be, because there is no consensus, even among the most devoutly religious, on any of those questions. The Supreme Court, as a branch of American government, rightly used the Constitution as its guide and decided based on the 4th and 14th Amendments, which guarantee a “reasonable right to privacy” and “equal protection of the laws.”

Having graded hundreds of Freshman English papers, I recognize the agonizing lengths to which Alito goes, trying to make something of nothing. He begins with the “straw man” technique, grinding out scores of pages disputing an argument Roe and Casey never made: that abortion rights have “deep roots” in common law. He cites laws back to the 13th Century to show that there’s a long-standing tradition of regarding abortion as criminal. Disingenuously, he makes no mention of the fact that abortion before “quickening” wasn’t illegal in America until the mid-18th Century, when the men of medicine (in the good old days when women weren’t allowed in medical school) usurped the role of midwives. The leader of this takeover was a Dr. J. Marion Sims, who claimed that women weren’t fit to make these decisions because pregnancy made them “deranged.” He also thought it was fine to experiment on pregnant enslaved women without anesthetic. There are deep roots, indeed, concerning who does and doesn’t deserve to have agency over their own bodies.

Helpfully pointing to his own straw man, Alito begins his second argument thusly: “Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right. Roe termed this a right to privacy, and Casey described it as the freedom to make ‘intimate and personal choices…central to personal dignity and autonomy.'” The 4th Amendment, ratified in 1791 as part of the Constitution’s Bill of Rights, states in part, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….” Its goal is to protect privacy and freedom from unreasonable intrusion by government. It has been cited in cases regarding the rights to marry a person of a different race; obtain contraceptives; not to be sterilized without consent; and not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures. But because those cases don’t specifically name abortion, Alito claims they can’t be applied to abortion rights. However, he gives no opinion as to why whether to become a mother wouldn’t be considered an “intimate and personal choice.”

Article 1 of the 14th Amendment states in part, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” It was ratified in 1868, after former Confederate states began to legislate “black codes” that restricted Black people’s access to jobs, land, housing, and even personal relationships. The “states rights” argument, popular as a justification for enslaving people, could not be used to abridge Constitutionally guaranteed rights. Alito didn’t even attempt to explain why women’s bodily autonomy isn’t deserving of the rights to liberty and equal protection of laws.

Nevertheless, he concludes that Roe and Casey were wrongly decided, and therefore the Court may “correct our own mistake.” He is half right. Between 1789 and 2020, the court reversed its own Constitutional precedents 145 times – about ½ of 1% of all rulings. But what “mistake” does he mean? Based on what Constitutional principle? His only argument seems to be, “We’ve always done it this way.” If that were valid, no law allowing discriminatory practices in race, gender, or sexuality would ever be overturned. There would be no Griswold v. Connecticut (1965), which invalidated a state law prohibiting the sale, prescription, or use of contraceptives, even for married people. No Eisenstadt v. Baird (1972), which strikes down a state law prohibiting the shipment of contraceptives to unmarried adults. No Cleveland Board of Education v. LaFleur (1974), ending a law requiring women to take unpaid maternity leave after the first trimester of their pregnancy. But Alito still thinks we should go back to a “states’ rights” model for women, so our ability to Live Free depends on our ZIP code.

Justice Alito’s draft opinion is nonsensical, but unsurprising. Dominionist Christians like Ted Cruz who want to turn America into a theocracy and right-wing authoritarians like Josh Hawley have an unholy alliance with billionaire corporatists that began 40 years ago with Jerry Falwell’s “Moral Majority.” Their dream of installing an anti-choice Supreme Court has been realized, opening the door to repression on the state level. There are anti-choice bills in place in over 20 states. Texas and Oklahoma already offer bounties to every citizen for reporting anyone suspected of helping a woman access abortion services.

Here in NH, the same “pro-life” legislators who complain that vaccination mandates are a tyrannical infringement on individual liberty fail to see the inconsistency of supporting government intrusion on women’s reproductive choices. Though Gov. Sununu vetoed the mandatory ultrasound law, we certainly can’t depend on him to support women’s autonomy. After months of touting his bona fides as a “pro-choice governor,” he’s now boasting, “Look, I’m the first governor in 40 years to sign an abortion ban….I’ve done more on the pro-life issue, if you will, than anyone.”

Like Comrade Napoleon of Animal Farm, New Hampshire’s Free Staters and their enablers in the GOP styled themselves as champions of liberty, helping organize a rebellion against tyrants. Once they were successful, the love of power replaced the ideal of freedom. Rules were imposed, hierarchies established, liberties denied. Even though 70% of Americans agree with the Roe v. Wade decision, the Supreme Court seems ready to hand our hard-won autonomy over to Free State radicals. We still do have a choice, though: mid-term elections are this November. We can choose a governor and representatives who respect women and the will of the people; who will sign into law our right of to make decisions about our bodies as we see fit.

Jean Lewandowski is a longtime resident of Nashua.

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