Attorney Meredith Jones, who is of counsel for the Kessler Law Firm, weighs in on the recently leaked draft opinion from the Supreme Court, which indicates that they are preparing to overturn Roe v Wade.
I’m giving my opinion today both as an attorney and as a woman. To me, they are inseparable. And I want to start by saying that in many ways, I think that Justice Alito is correct. Roe v. Wade was poorly decided. And part of that is the history of Roe vs. Wade.
In 1973, the court was made up of 100%, white male justices, and they were grappling with the decision of how to legislate about primarily a woman’s right to have control over her body. As the story goes, Chief Justice Burger was actually going to dissent. But based on the history of the court, if the Chief Justice was in the majority, he could assign which justice would write the opinion. So he switched his vote. And he joined the majority. And he assigned the decision to Justice Blackmun.
So from Justice Blackmun, we get a rather watered down version of a woman’s fundamental right to bodily autonomy and privacy. And you can see that in the decision. And that’s what a lot of the subsequent litigation has been about. That’s where Justice Alito talks about Planned Parenthood versus Casey, and what is an undue burden on abortion.
I want to imagine a world where, instead of Roe being decided in 1973, we had a case of Susan Struck in 1970. Susan Struck was a nurse in the Air Force, and she became pregnant. She was Catholic, and so abortion was fundamentally against her religion. The Air Force, at the time, had a policy that she would either have to get an abortion or leave the Air Force. And she didn’t think that this was right.
So she had an attorney fight for her and her right to decide to stay pregnant, and give her child up for adoption. She had the necessary leave accrued for her recovery time. She was temporarily stationed in Washington, DC, where she would be able to do this. And that attorney was the future Supreme Court Justice Ruth Bader Ginsburg.
Attorney Ginsburg planned to mount an attack on this forced abortion policy, that would be based on, not only equal protection and privacy, but also on freedom of religion. Because, again, the nurse’s, Susan Struck’s, religion did not allow for abortion.
So what happened?
Well, the gentleman who was in charge of this forced abortion policy saw the writing on the wall. He had dealt with future Justice Ginsburg previously, and knew that she was an incredibly smart litigator. And so he ended this policy, which was great, because women should, again, have the ability to decide what happens with their bodies, and make the decision on whether or not to bear a child. So women in the Air Force like Susan Struck were no longer forced to have an abortion if they did not want to.
But what that meant was that case was moot. And that case, Struck versus the Air Force, did not actually make its way up to the Supreme Court in 1970. And instead, three years later, we get Roe versus Wade.
So while Susan Struck was a practicing Catholic and abortion was not allowed in her practice of religion, there are other religious people, including Jews, here in this country, who believe very strongly in the right to an abortion, and believe that the life of the mother should be held above the life of an unborn child. And if the mother is going to be injured, hurt, including mental injury, then her life is the one that must be taken into account and given preference.
So, again, future Justice Ginsburg was incredibly smart in picking this potential case of Susan Struck to argue for women’s bodily autonomy.
What would our legal landscape look like if we had reproductive rights that were based on a person’s ability to decide what happens with their own body? If we had a right that was fundamentally anchored in bodily autonomy, which is a concept that is so fundamental, that we can’t even begin to think of all the ways that it would ripple out and protect humans. But that’s not what we got.
We have Roe.
We have this idea about a fundamental right to choose to have an abortion. And that doesn’t sit right with a lot of people. It sounds like a stretch. What do you mean “a fundamental right to choose whether to have an abortion?”
And again, that is because of how the question was framed. It was how the question was answered in Justice Blackmun’s opinion.
So we’ll see.
The court is a political branch. We like to think of them as not. We like to think of the court as above politics. But we’ve clearly seen, especially in the past decade, more than decade, that the court is definitely influenced by political forces and outside forces and by public opinion.
So while this leak is pretty unusual, perhaps it is the first step or another step in recognizing that the court is subject to public pressure. We will see.