Considering our nation’s history, minus the fact that it was leaked, Justice Samuel A. Alito Jr.’s opinion for Dobbs v. Jackson Women’s Health Organization (2021), the case challenging the constitutionality of a Mississippi law, is not that shocking. Its reasoning is not unfamiliar, and neither are the potential ramifications. Obviously, on its face, the decision would outlaw abortion except in those states where there are laws to protect the rights established in Roe v. Wade (1973) and reaffirmed in Planned Parenthood v. Casey (1992). However, the not-so-obvious potential political, social, and economic consequences must also be considered for women and other marginalized groups that could be next on the conservative hit list.
First, how did we get here? Why is a medical procedure being argued before the Supreme Court again? Before I elaborate on the potential consequences for marginalized groups, we must look at the nation’s history, and I mean pre-Roe v. Wade (1973). All the way back to Brown v. The Board of Education (1954) and later the Civil Rights Act of 1965. Why? Because abortion is a talking point. It was simply an issue conservatives used to mobilize what we now refer to as the Christian or Religious Right. Due to a failure to integrate, Whites-only schools, such as Bob Jones University, were in a war with the IRS and were fighting to maintain their tax-exempt status. To create the political powerhouse that is the Christian Right, conservatives against school desegregation and integration, in general, needed an issue for evangelicals to rally around. Despite their multitude of attempts, abortion was the only issue that could get evangelicals off the couch and into the voting booths. Thus, if you will, the lynchpin of this debate is not moral obligations, ethics, religion, or the rights of a fetus. It’s race. Women’s rights are simply collateral damage.
The language used in Alito’s opinion appears intimidating at first, but it is pretty simple. The focus is on three main points. First, he argues that the legal reasoning behind Roe v. Wade (1973) is weak and does not meet the standard of proof required for the Supreme Court to make such a monumental decision. This goes hand-in-hand with the second point, arguing that abortion is a state issue. This argument is based on the police powers granted by the 10th amendment allowing states to regulate their citizens’ health, safety, and morality. Thus, banning or legalizing abortion is out of the Supreme Court’s jurisdiction. Third, he concludes that stare decisis (using past cases to make rulings in newer, similar cases) is irrelevant in this situation because the logic and interpretation of the 14th amendment in Roe v. Wade(1973) is wrong.
The importance of the 14th amendment and concepts of stare decisis and precedent in this case cannot be stressed enough. Together, they allow marginalized groups to successfully challenge discriminatory laws regardless if the discrimination is race, ethnicity, sex, or gender based. The Court’s interpretation of the 14th amendment, more specifically the due process and equal protection clauses, protects the rights not enumerated in the U.S. Constitution, such as the right to privacy, reproduction, the right to marry the person you love regardless of race or sex, and even the right to be protected from involuntary sterilization. It was used in the 2000 presidential election to solidify George W. Bush’s presidential victory. Tossing out Roe v. Wade jeopardizes any right not explicitly spelled out in the Constitution or “deeply rooted in this nation’s history and tradition,” as Alito states. Mind you, we live in a country where systemic racism, sexism, and xenophobia are deeply rooted, but that’s another story for another day.
While the final opinion will not be released for months, and positions can change, as a member of marginalized groups, I can’t help but feel uneasy. Now, my feelings about abortion itself are irrelevant. Feelings are personal, but the political, social, and economic consequences will be widespread. Witnessing how quickly fundamental rights, “rights that have been recognized by the Supreme Court as requiring a high degree of protection from government encroachment,” can be stripped away is a reality that cannot be ignored. This is what creates my uneasiness. After all, many states have trigger laws, laws that can go into effect as soon as the decision is made. Other states have laws on the books that can be implemented in a heartbeat to criminalize abortion. Premeditation is not always a good thing, and that is exactly what states are doing. They are premeditating how to use the law to deny women autonomy over their own bodies.
What could the consequences be, and for who? First and foremost, these laws will disproportionally impact women of color and low-income women. These women do not have access to the same resources as White women or those “well-off.” Traveling to another state to have the procedure is not an option, especially given that neighboring states such as Oklahoma have passed bans similar to Texas. When we consider the lack of access to prenatal health care, mental health care, and effective welfare programs in states like Texas, these groups are even further disproportionally impacted. The economic problems that come with the banning of abortion extend to the state as well. If these laws are passed, states like Texas must create programs to provide these women the information, resources, and support they need to raise children in a world where gas is $4 gallon, a 600 sq. foot apartment is $1,200 a month, daycare is $800 a month, and minimum wage is $7.25.
States must also reform the foster care system if these women or families cannot care for their children, or the mother dies during childbirth. Morbid? Yes, but it is a reality lawmakers must consider when crafting laws that ban abortion. After all, Black women are three times more likely to die during childbirth. Technically, states need to do both regardless of the Court’s decision, but that’s another story for another day. Banning abortion would literally cost the state millions. If the government’s genuine concern is the fetus’s well-being, by default, that includes their well-being after birth as well. As the African adage says, it takes a village to raise a child.
The next marginalized group that will be affected is the LGBTQ+ community. While the likelihood of banning interracial marriage is improbable, the same cannot be said for same-sex marriage. While the Supreme Court ruled that prohibiting same-sex marriage is unconstitutional, no national law protects this right. There is no Constitutional amendment protecting this right. Imagine fighting for decades to obtain a right that others have, and then for it to be stripped away by the stroke of the governor’s pen. Now I understand I am about to compare apples to oranges, but to put it in perspective, as members of marginalized groups, the basis of the fears of people of color are no different from the basis of the fears of the LGBTQ+ community. No one wants to be denied what is considered fundamental rights simply because they are not a White, heterosexual male.
Finally, we must consider the children of immigrants one of the most marginalized groups we have in Texas. Gov. Greg Abbott hinted that they might challenge Plyler v. Doe (1982), which requires providing free public education to all children living in Texas regardless of their citizenship status. The attacks on the curriculum, critical race theory and academic freedom are frightening, but this is a different level. What role does Roe v. Wade (1973) play in this case?
It’s all about precedent. Precedent and stare decisis act as a form of restraint. Judges look to previous cases with similar facts to make a ruling. In theory, it creates stability and limits the likelihood that judges will use their personal values and ideology to make decisions in similar cases. Suppose the Supreme Court ruling strays away from precedent in Dobbs v. Jackson Women’s Health Organization (2021) and upholds the constitutionality of the Mississippi law that ban abortions after 15 weeks of pregnancy. It sends a signal that they are open and willing to overturn other decisions that protect rights not listed in the Constitution, added as amendments, or codified into law, thus encouraging people to challenge prior decisions. As a person in education, it is terrifying to know conservatives would even consider stripping innocent children that just happen to have undocumented parents the ability to gain the education needed to improve their life chances. We got lucky this time as Plyler v. Doe (1982) was added to the Constitution as an amendment, but we may not be next time.
Tabitha S.M. Morton, Ph.D.
This brings us to the real question. Should a few Supreme Court Justices in 2022 be able to decide certain rights are not actually rights simply because a few White men in the 1790s did not explicitly list them in the U.S. Constitution? The 1790s are not the U.S.’s proudest moment. We saw the enslavement of African Americans, considered property, not people. Native Americans were stripped of their lands, and forced assimilation plans were created. Coverture was the norm for women. If you were not a White, heterosexual male, the law was not on your side, and the Constitution did not apply to you. Well, overturning Roe v. Wade (1973) harkens back to these days when the mistreatment of marginalized groups was acceptable, and women did not have a legal identity or autonomy over their lives, including their bodies.
The proverbial writing is on the wall. While the issue of abortion may not directly affect you, consider the consequences—the potential collateral damages. Just like women’s rights were the collateral damages of racism and hatred, other rights may be next, and those may affect you. Nothing can be taken for granted, and I urge you to read the opinion for yourself. Set aside your feelings, open up a casebook, not the Bible, do your research, and form your own evidence-based opinions. Just like Alito, you have the power to make change happen, and if ever there was a time to use it, it’s now.
Tabitha S.M. Morton, Ph.D., is an assistant professor of political science at Prairie View A&M University.