WDI USA Statement on the Leaked Opinion in Roe v. Wade

Introduction

Roe is likely dead and, again, women are grieving and we grieve with our sisters. But we will never stop fighting for women’s complete reproductive integrity, including the right to abortion on demand, without apology.

Apparently the Supreme Court has leaked an initial opinion, written by Justice Samuel Alito, overturning Roe. This is unprecedented. According to Politico, “[n]o draft decision in the modern history of the court has been disclosed publicly while a case was still pending.” Some of the most in-depth coverage of the case can be found on SCOTUSblog. 

The opinion isn’t final, and votes can still change. We suspect that they won’t. The end of the story was already written on May 17, 2021, when the Court chose to take up the case in Dobbs v. Jackson Women’s Health Organization. It didn’t have to do that. It chose to, in a cruel signal that it doesn’t care about women’s lives.

Article 3, section (a) of the Declaration on Women’s Sex-Based Rights states:

“States should ensure that the full reproductive rights of women and girls, and unhindered access to comprehensive reproductive services, are upheld.”

Women will always seek and obtain abortions. The only question is whether those abortions will be legal. Some brave medical providers will continue to provide safe but illegal abortions. But most illegal abortions will be unsafe, and countless women will die, especially poor women, especially women of color. The Supreme Court knows this. 

Roe v. Wade

WDI USA vice president Lauren Levey describes life before Roe here. She states:

Virginity ideology meant that substantial social stigma and financial hardship resulted from giving birth to a child while unmarried. There were girls in high school with me who were expelled from school simply for becoming pregnant. Something about avoiding corrupting other girls, I was told. I was horrified. For me, education and career constituted the only path I could see to achieving control over my life; but pregnancy could disrupt a girl’s education even before high school graduation.

Under those cultural circumstances, employers would reasonably hesitate to hire or promote any woman, if they had an alternative. After all, women could without warning have their lives and careers disrupted by unplanned pregnancy, rendering them inherently unreliable employees.

Even though I had a strong suspicion from an early age that I was a lesbian, and therefore unlikely to experience a badly timed pregnancy, I was as affected by the cultural presumptions as heterosexual women. This is because lesbianism was paradoxically stigmatized, criminalized, and also made invisible. The message seemed to be that lesbians didn’t exist any more than Tinkerbell did; but just in case they did, they could be shunned and jailed. There was an overwhelming presumption of heterosexuality. So explaining to an employer that he didn’t need to worry about my having a career-disrupting pregnancy because I was a lesbian would not have enhanced my employment prospects.

Eventually it became clear to me that having free access to both birth control and abortion would be in the interest of every woman who wants even moderate control over the trajectory of her own life.

Roe wasn’t perfect, in that it did not go far enough. The idea that a woman’s right to control her own body, her own future, her own life, could be curtailed by the concept of viability was anathema to the movement for women’s liberation, which fought for women’s complete autonomy. However, although it wasn’t perfect, it was necessary. For decades, Roe meant that women who became pregnant unexpectedly, particularly poor women, could have some control over their own lives. The Court grounded its analysis in the Fourteenth Amendment’s Due Process Clause (although it invoked other constitutional provisions in doing so). Its reasoning was arguably less than compelling. But this is not an excuse for overruling a landmark decision on a woman’s fundamental human right that has stood for half a century and has uniquely given women the ability to plan our own lives.

The woman who argued Roe v. Wade was named Sarah Weddington. Weddington had started law school at the University of Texas in 1965, one of five women among 120 men in her class. She was twenty years old at the time. She would later date a man named Ron Weddington and, celibate until the two began discussing the possibility of marriage, began having sex with him and eventually became pregnant. Abortion was illegal in Texas at the time, and she was not prepared to have children, so they went to Mexico for an illegal abortion. She was one of the lucky ones in that her abortion was safe and healthy, and she survived. This is all publicly documented in Weddington’s 1992 Book “A Question of Choice.”

Weddington filed Roe v. Wade in the U.S. District Court for the Northern District of Texas on March 3, 1970, when she was just 25 years old. She would go on to argue it before the Supreme Court in 1972 at the age of 27, and in 1973, the Supreme Court ruled that states could not constitutionally ban abortion outright. States could place limitations on its availability under certain circumstances, but the ruling was clear: for the most part, U.S. women have the right to make our own decisions about our reproductive lives.

Sarah died in December, 2021. This is Sarah:

The Mississippi Law in Question

In Mississippi, there is exactly one abortion clinic, and it is located in Jackson, the state capital. In 2018, the Mississippi legislature enacted the Gestational Age Act, which states: “Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform, induce, or attempt to perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.”

The law became effective the minute the governor signed it, but the Jackson Women’s Health Organization, the only abortion clinic in the state of Mississippi, filed suit immediately and a federal court issued an order staying the law. So that law is not in effect today.

Previous Opinions

When the law was challenged, the federal district court ruled that the law was unconstitutional because it violated Roe v. Wade, and it did not mince words. In its ruling, it accused the state of being “proud to challenge Roe,” and compared the law to “the old Mississippi – the Mississippi bent on controlling women and minorities. The Mississippi that, just a few decades ago, barred women from serving on juries so they may continue their service as mothers, wives, and homemakers. . . . the Mississippi that … sterilized six out of ten black women in Sunflower County at the local hospital against their will. . . . And the Mississippi that, in the early 1980s, was the last State to ratify the 19^th Amendment.” While conducting some subsequent research, I learned that Mississippi did not, in fact, ratify the 19^th Amendment, which prohibited voting restrictions on the basis of sex in the U.S., until 1984. In any event, the state appealed the ruling, but it was upheld on appeal on the basis that the Mississippi abortion ban violation Roe v. Wade.

The Decision to Take the Case

The state then asked the Supreme Court to review the matter. The U.S. Supreme Court has complete discretion to determine which cases it takes. It has established some overarching principles that it uses to determine which cases are appropriate for consideration, but it is not legally required to follow them. It can take any case it wants to, and it is not required to provide any reasoning to justify its decisions. Had the Supreme Court not taken up this case, Roe would not meaningfully be in question. However, the Court announced in May of 2021 that it would be taking up the case. We believe that the Court took up the case specifically in order to overturn Roe v. Wade. The draft opinion suggests that we were right.

The Draft Opinion and the Need for a Broader Analysis

This case is essentially framed as a dispute about whether women ought to have a constitutional right to abort or whether the legality of abortion should be left to the states to decide. Unsurprisingly, Justice Alito takes the latter view. If he succeeds in persuading four other justices to go along with this view (which seems likely), Roe will be overturned and the question of whether women have the right to make the critical decision about whether to become mothers – a decision that determines countless other aspects of her life and future – will be left to state legislators.

Also unsurprisingly, state legislators (especially in states that are either likely to criminalize abortion or have done so already) are overwhelmingly white and male. The Alabama state legislature is 84% male. Same in South Carolina. In Louisiana it’s 82% and in Mississippi (the state at the heart of the current case) it’s 83%. 

Perhaps the cruelest irony of this entire discussion is that Justice Alito grounds his constitutional analysis on the argument that abortion cannot be a fundamental right under the Fourteenth Amendment because the United States does not have a history of protecting women’s right to have abortions. In his discussion about fundamental constitutional rights, Justice Alito says this:

We haven’t checked his facts on this, but we take him at his word. But this is precisely the problem. The men who founded this country and have been ruling over it for all of this time have never wanted women to have autonomy over our bodies. Roe changed that, at least partially. What Justice Alito is saying here is that U.S. women cannot have a fundamental right to autonomy because U.S. women have never had a fundamental right to autonomy. 

This is a bit reminiscent of a 1776 discussion that took place between Abigail Adams and her husband John. In March of 1776, just over three months before the United States declared its independence from Britain, Abigail Adams wrote in a letter to her husband, future President John Adams: 

“I long to hear that you have declared an independence. And, by the way, in the new code of laws which I suppose it will be nec-essary for you to make, I desire you would remember the ladies and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the husbands. Remember, all men would be tyrants if they could. If particular care and at-tention is not paid to the ladies, we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation.” 

John responded simply, “We know better than to repeal our Masculine systems.”

The men in power know exactly what they are doing, and they always have.

Conclusion

If the Court proceeds to overturn Roe v. Wade, which seems likely at this point, it will constitute nothing other than a targeted assault on women. A clear majority of Americans think that abortion should be legal in all or most cases. This fact should both enrage us and give us hope; and it may suggest a strategy. Abolition of a woman’s sovereignty over her own body is an autocratic, top-down decision by powerful men to control all women. Historically, the American people have not permitted such laws to stand. It is time to demonstrate one more time why a government cannot enforce a law that restricts the fundamental liberty of a citizenry that overwhelmingly rejects that restriction and openly disobeys the law. 

WDI USA will always stand with the women and girls who exercise their right to liberty and autonomy, even if the Court proceeds with this monstrous decision.

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