Friday, March 29

For women, there is no right to (reproductive) health care | Commentary


Back on June 19, 2021, I wrote a guest column for the paper, “Supreme Court’s ACA ruling proves health care is a right.” How wrong I may have been.

The case before the Supreme Court to overturn a right to an abortion, Roe v. Wade, was argued last Dec. 1, with a decision due no later than the end of the high court’s term, or by June 30.

But what most court observers and legal scholars would call a nefarious event occurred on May 2, the leaking of a draft opinion authored by Justice Samuel Alito that overturns entirely the precedent set by Roe when it was decided in 1973, and then reaffirmed in another Supreme Court case, Planned Parenthood v. Casey, in 1992.

Never in the history of the court has a draft opinion ever been leaked so one must wonder who and why it was done; perhaps to peel off one of four other justices that will make up a majority of the court due to the public’s outrage over it, or, conversely, to ensure that all who signed off on it are cornered into not changing their position.

With these two decisions, Americans — particularly women — have come to believe that the Roe case was etched in stone, what us lawyers call stare decisis, or precedent, even super precedent. That’s not so any longer, should the Alito draft become the law of the land.

Alito’s writing eviscerates the autonomy and decision-making women have come to expect and rely upon for nearly half a century over managing their reproductive rights. To put this bluntly, the majority has taken away a well-grounded constitutional right. This is blasphemous and an example of warped legal thinking, on par with an equally infamous but disastrous high court decision in 1857, Dred Scott v. Sandford, where it was decided that Blacks could not be citizens in the United States, were not protected by the Constitution, and Congress could not prohibit slavery in the federal territories.

Alito’s writing now places our nation’s females into an inferior class of citizens when it comes to making decisions over their bodies. Their health care is akin in large measure to when Chief Justice Taney wrote in Dred Scott that the Founding Fathers, in writing the Constitution, considered all persons of African ancestry “…beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”

What is more egregious about Alito’s draft is his reference to abortion being nowhere to be found in the Constitution — thus if a subject is not contained within the four corners of the Constitution, there cannot be a right guaranteed by that document. But if that is so, then rights which prior high courts have found implicitly guaranteed within a constitutional framework, such as the 1965 Griswold v. Connecticut decision providing a right to privacy in the context of marital contraception, will be on the chopping block. So, too, would recent decisions upholding same-sex marriage, establishing LGBTQ rights, and others.

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So, what next? Absent congressional action, the issue of a women’s right to an abortion will be left to each state to decide, with 20 already having so-called “trigger” laws that, should the Supreme Court overturn Roe, will take effect immediately to bar abortions, even those occurring as a result of rape or incest.

And after that? Criminal prosecution for women who seek an abortion, even traveling out of state to obtain one, or their physician that performs it? And what of the marginalized woman who cannot afford to go to a safe venue to obtain an abortion; will there be more back-alley procedures with death and injury to that woman her only refuge? And, then, what of the socioeconomic implications of taking away this constitutional right for all women?

As I said atop this column, I was incorrect in saying health care has become a right for us all.

Miles Zaremski of Zaremski Law Group lives part-time in The Villages and is a former adjunct professor at Stetson Law School.

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