Roe Needs to Go
| Photo by Maria Oswalt on Unsplash
The opinions reflected in this OpEd are those of the author and do not necessarily reflect the opinions of staff, faculty and students of The King's College.
On Dec. 1, 2021, the Supreme Court heard oral arguments in the Dobbs v. Jackson Women’s Health Center case. This case has received much media attention because it challenges the historic 1973 Supreme Court decision Roe v. Wade, which I argue ignorantly upheld a woman’s constitutional right to an abortion procedure. If the Supreme Court rules in favor of Mississippi, Roe will officially be overturned, returning the issue of abortion litigation back to the States where I believe it belongs.
The Mississippi law in question would ban abortion after 15 weeks gestation, but if upheld, Mississippi legislators plan to introduce a 6-week ban similar to Texas’ abortion ban. There are no exceptions made, except for cases where the continuation of the pregnancy threatens the mother’s life. The law was struck down in lower courts and, thus, is being appealed to the Supreme Court. In the State’s legal brief, they ask the Supreme Court to not only uphold the law (House Bill 1510), but also to overturn Roe v. Wade and Planned Parenthood v. Casey.
In a 7-2 decision, the Supreme Court decided in Roe v. Wade that the Fourteenth Amendment’s right to privacy also ensured a woman’s right to get an abortion. Furthermore, it introduced a ‘viability standard’ which granted the State’s the ability to regulate abortion based on trimester. The 1992 Planned Parenthood v. Casey case reaffirmed Roe in a 5-4 decision. However, it introduced the concept of an ‘undue burden’ clause in relation to a state’s regulation of abortion. If, before viability, a state seeks to impose abortion restrictions on a woman that would present “substantial obstacles” in her path, it is unconstitutional.
Both decisions rest on postmodern misogyny, individualism and misinterpretation of the Constitution.
The Undue Burden standard, in particular, is perhaps the biggest nod toward postmodern ignorance of biology and femininity. The Jackson Women’s Health Center’s lawyer, Julie Rikelman, illustrates this well, stating that any bans on abortion will “propel women backwards.” She also cites studies that describe access to abortion as the sole contributor to women’s ‘success’ in the West. As I show in the next paragraph, this language is blatantly and horridly misogynistic.
Such studies’ allusions to recent female success actually refer to contemporary western triumphant attempts to socially sever women from vocational womanhood. The sacred and inherently feminine biological vocation of carrying and caring for a baby is diminished to a second-rate and insulting job in lieu of assimilation into an energetically masculine workforce. Thus, for Rikelman, the very essence of being a woman “will propel women backwards” and no amount of optimistic dogma can disguise such misogyny.
That women have a biological vocation toward child-bearing and rearing is plain. Healthy women have a repeated one-month long cycle for the sole purpose of fertility. Thus, essentially, a woman’s whole life from puberty until menopause is tagged by her body’s constant desire to become pregnant. During ovulation, women often experience a wildly increased libido as their bodies signal that they are at peak fertility. A woman’s entire endocrine system is designed around pregnancy and breastfeeding. I jokingly like to say that a period is the body’s way of punishing the woman for not getting pregnant that month.
To conceptually and legally attack this beautiful feminine system as “anti-woman” is ignorant as it is one of the main definers of womanhood. It is nothing more than misogyny to propagate the idea that a woman has to essentially sever herself from being a woman to succeed! And succeed in what manner? This thought process implies that caring for and nurturing one’s child(ren) is somehow less rewarding than succeeding in the workplace.
Indeed, many women disagree as 17% of women leave employment completely after having a child, and nearly half (43%) take an extended career break. Furthermore, a whopping 75% of women who did not take one wanted to but could not because of financial reasons. Severing women from womanhood is not as easy as many may think. When faced with the decision between work and their infants, most women instinctively choose (or desire to choose) their infants.
As Justice Amy Coney Barrett pointed out last week, Safe Haven laws also allow the state to protect the unborn life without the woman having to necessarily enter into parenthood. Safe Haven laws include allowing a woman to anonymously surrender her newborn infant to a safe facility. These laws serve as an excellent compromise between the protection of life and validation of femininity and women’s capability in the workforce.
Embedded in Rikelman’s argument are appeals to Stare Decisis, better known as court precedent. She argues that because the Supreme Court made and upheld Roe, the present case must be decided in favor of the Jackson Women’s Health Center. However, to quote Andrew Jackson, “mere precedent is a dangerous source of authority.” The Supreme Court has delivered bad decisions. Dred Scott and Plessy come immediately to mind. Thus, simply appealing to court precedent is void of any accurate moral judgements.
Furthermore, Rikelman and the decisions in Roe v. Wade and PP v. Casey wrongfully define abortion as a constitutional right. Founding Father Alexander Hamilton was reluctant to even include our present Bill of Rights (which does not include abortion) out of fear that it would engender a sensation of demanding positive rights. In early America, abortion was not legal after quickening (fetal sensation) in 26 out of 37 states, more than two-thirds. Of course, quickening was the only way they could affirm fetal life, as medical technology was not greatly developed. However, ultrasound technology now explicitly affirms that unborn babies move far before the mother can feel the sensation which would move the cut-off for an abortion, by old standards, to 8 weeks of pregnancy!
Moreover, many of the Founding Fathers supported protecting the unborn. James Wilson, a signatory of the Declaration of Independence and an original Supreme Court justice, taught, “with consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law.” William Blackstone, an author whom many of the Founding Fathers admired greatly, also wrote that the killing of an unborn child after quickening is homicide. Thus, it is absurd to imply that abortion is protected under such vague language as the right to privacy, but also more absurd because many Founding Fathers did not support abortion, and the majority of states outlawed it after quickening.
The idea that Roe could be overturned is a beautiful one. Furthermore, the future looks optimistic as the Supreme Court recently upheld the constitutionality of Texas’ abortion ban. Overturning Roe would unfortunately not mean the outlawing of abortion in America completely but would be a beautiful step in the right direction toward upholding the sanctity of human life.
Tamia Dunlap studies Journalism, Culture, and Society at The King’s College in New York. She is best known for her cultural criticisms, Christian worldview and political commentary on both her YouTube Channel and Instagram.