There are instances throughout history where the courts recognized the absurdity of this logic and decided to overlook the “history and tradition” that this Supreme Court so loves to reference. A prime example is Brown v. Board of Education, which explicitly ignored the history and tradition of “separate but equal”, claiming that the value of education in our country has changed throughout time.³  As a result, looking at that history and tradition for the constitutionality of segregation in the classroom had no place.⁴

The Supreme Court in Roe recognized a similar change in our country for how the right to privacy is perceived.  As early as 1891, the Supreme Court in Union Pacific Railway recognized that: “No right is held more sacred or is more carefully guarded by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others unless by clear and unquestionable authority of law.”⁵  In 1965, the Supreme Court in Griswold found that there are certain “zones of privacy” under the penumbras and emanations of the Bill of Rights, thus allowing for the use of contraceptives for married couples.⁶  This right was defined broadly because it was understood that the government should have no place in certain personal decisions.  Roe expanded on this right in the context of abortions.  The Roe court understood that there are warring arguments here.  On the one hand, womxn should have personal autonomy to decide what to do with their bodies.  On the other hand, the state has an interest in protecting potential life.  As a result, the Roe court balanced these two warring interests by allowing the government’s interest in protecting potential life to get stronger as a pregnancy progresses.⁷  They acknowledged that there wasn’t a “history and tradition” of the legality of abortion in this country, but Roe was about more than just abortion.⁸  Roe was about the right of privacy for decisions to be made between a womxn and her doctor, and a womxn’s personal autonomy to control her own body.⁹  Yet this Supreme Court decided that a womxn should not have that fundamental right and instead it should be the decision of state and local governments because there is no “history and tradition” of the legality of abortion.

This Supreme Court’s justification is that “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”¹⁰  However, that assessment is too narrowly tailored.  There is a long history of the right to privacy in this country.  Outside of Union Pacific, Griswold, and Roe, there are numerous cases making it clear that certain decisions are private and that the government should have no regulatory authority.  Eisenstadt v. Baird acknowledged the right for individuals to control reproduction using contraceptives¹¹, Lawrence v. Texas acknowledged the right for adults to engage in consensual sexual conduct, including homosexual conduct¹², Loving v. Virginia acknowledged the right to interracial marriage¹³, and Obergefell v. Hodges acknowledged the right to same-sex marriage¹⁴.  Eisenstadt summed it up perfectly as follows: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”¹⁵ 

Despite the large array of cases demonstrating this right of privacy, the Supreme Court decided that its interest in “protecting potential life” is greater than decades of precedent and a womxn’s right to decide whether to bear children and all the possible outside factors.  They failed to consider health problems, rape, incest, abuse, and even more simply, choice.  No one should have to justify their decision to have or not to have children.  

In addition, the idea of “protecting potential life” is a question of faith, not science, because it goes to the question of when does life begin.  In taking away a womxn’s right to choose, the government is imposing restrictions based on the beliefs of others, justifying that state and local governments will accurately represent the voice of the people.  This shouldn’t be about religion, morality, faith, or politics.  It’s about a womxn’s right to control her body and decide the healthcare that is best for her.  It is a basic right vested in our privacy rights that this nation’s history has consistently acknowledged, until last week.

According to the Guttmacher Institute, 31 states have introduced abortion bans this year. The below map provides a glance at abortion policies in effect.

Here are some ways you can support the right to abortion:

• Fund abortions in your community: National Network of Abortion Funds provides a list of abortion funds in each state.
• Volunteer and provide practical support: Womxn seeking abortions need support right now. Whether that’s driving them to and from appointments, assisting with lodging, or helping to shield them from protesters at abortion clinics, you can help. Apiary for Practical Support provides a list of organizations by state that provide support.
• Call on lawmakers to demand they protect the right to abortion.
• Urge colleges, universities, and employers to support abortion. Some states, like California, require that public colleges and universities provide medication for abortions at no costs to students. Even if your school can’t provide this free of charge, they could provide support for those seeking an abortion and alleviate some of the burden. Similarly with employers, some employers will assist with the cost of travel or reimburse you for abortion care.
• Educate yourself and share information about safe at-home abortions with medication. Abortion on Our Own Terms provides resources to help you access abortion in a safe way.
• Support those who have been arrested or punished over ending a pregnancy.
• If you’ve had an abortion, share your story to fight the stigma of abortion.

The Supreme Court’s decision to overturn Roe v. Wade is a devastating and infuriating step back in history for womxn’s rights. After decades of fighting, we’re right back where we started and are in danger of losing even more rights. Words cannot express the anger, grief, and fear we face over such barbaric logic. Know that you are not alone in your struggles and we will provide support in any way we can. Stay strong.

Written by Alexandra Mayo, Esq.

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Footnotes:

1. Dobbs v. Jackson Women’s Health Organization, 597 U.S. ______ (2022).
2.  If a right is not explicitly enumerated in the Constitution, such unenumerated right may still be protected. To determine whether these rights are protected, the courts look at whether the right is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered  history”.  Washington v. Glucksberg, 521 U.S. 702, 721 (1997).
3.  Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
4.  Id.
5.  Union Pacific Railway Company v. Botsford, 141 U.S. 250, 251 (1891).
6.  Griswold v. Connecticut, 381 U.S. 479, 484 (1965).
7.  Roe v. Wade, 410 U.S. 113 (1973).
8.  Id. at 165.
9.  Id. at 152-53; 165-66.
10.  Dobbs v. Women’s Health Organization.
11.  Eisenstadt v. Baird, 405 U.S. 438 (1972).
12.  Lawrence v. Texas, 539 U.S. 558 (2003).
13.  Loving v. Virginia, 388 U.S. 1 (1967).
14.  Obergefell v. Hodges, 576 U.S. ____ (2015).
15.  Eisenstadt at 453.