Well, the Supreme Court has spoken: The right to abortion does not exist, and Roe v. Wade has been overturned. Because of existing laws, abortion will be banned in Texas (except to save the life of the mother) on July 24.
In Dobbs v. Jackson, the decision overturning Roe v. Wade, the court states that because it is not explicitly stated in the Constitution or historically grounded, the right to abortion does not exist. However, just the day before in New York State Rifle & Pistol Association, the same majority of the court ruled that people have the right to carry a concealed weapon, even though that right is neither expressly stated in the Constitution nor historically grounded. The only explanation for this disparity is the ideological perspectives of the members of the court.
In their ruling on Dobbs the court majority says that the question of abortion is, fundamentally, a political question that should be left to the legislative process — in other words, a question that should be decided by the people through the political process. There are two problems with that. First is the question of whether the political process in this country really reflects the will of the people. Gun control is perhaps the best example, as public opinion polls very consistently show large majorities of the public supporting strong measures for gun control, including expanded background checks, limits on the size of magazines for ammunition, limits on concealed carry, bans on assault-style weapons and other measures, and yet the political process is effectively incapable of passing legislation that reflects these preferences. Even voters in Texas agreed to at least some of these, as a recent poll of Texas voters from QuinnipiacUniversity shows. The poll also shows that a solid majority of Texans think abortion should be legal in all or most cases, and yet the state has repeatedly adopted some of the most extreme anti-abortion policies in the country.
The other reason why leaving it to the political process is a problem is because rights are established to protect people from the political process. We have seen what happens when rights have not been established.
The Jim Crow laws that denied Blacks and other people of color basic civil rights is an excellent example of this. It is a question about the ability of one group of people (Whites in the case of Jim Crow, or men in the case of abortion rights) to determine what is allowable for other people. In the case of the Jim Crow laws, people of color were prevented from engaging in certain activities (Voting, living where they wanted to live, shopping where they wanted to shop) because of their race. Laws banning abortion have a similar impact on women, who will be forced to carry a fetus to term that they would not have chosen to have. (While adoption may be an option so the person carrying it would not have to raise an unwanted child, this ignores the fact that bearing and delivering a child has massive physical and mental health effects.)
The impacts of this decision will be substantial, and the vast majority of the effects will be felt by low-income women and other marginalized people. Middle- and upper-income women will always have access to abortion because they will be able to travel to a state where it is allowed. It remains to be seen how state legislatures will respond to the needs that will be created by this decision. For example, most low-income people in Texas do not have health insurance, and Texas already has one of the highest rates of maternal mortality (women who die while pregnancy, in childbirth, or soon after) in the country — and it should be noted that the U.S. has the highest rate of maternal mortality of any country with a highly developed economy. Will the state legislature increase funding and availability for maternal care? More children will be born to poor families. Will the state increase funding for programs to support those children’s needs for food and shelter? If the state decides that it doesn’t want to do these things, will it ensure that all students in Texas schools receive education about contraception and safe sex, and increase the availability of contraception, particularly for young people?
The other thing is that abortions will not stop just because it is illegal. Legal abortion is very safe — far safer, in fact, than carrying and delivering a child. But people who find themselves in desperate situations do desperate things. We know what happens when abortion is illegal. If someone has an illegal abortion, which is much more likely to be unsafe than when it is legal, they will be unwilling to seek care. Women will die or suffer serious injuries.
Justice Sonya Sotomayor recently offered reassurance to those who support the notion that women have rights: be patient. The members of the Supreme Court are human and they make mistakes but, given time, these will be corrected. The Dred Scott and Plessy v. Ferguson decisions eventually were reversed.
Dobbs no doubt will join the class of “worst decisions” by the court. In the meantime, people will suffer and, as usual, most of the cost of the injustice will be borne by those who are already disadvantaged in our society.
Mark J. Kaswan lives in Brownsville.
