2. Some states will — in
fact, some already have — pass laws that punish women who get
abortions, or others who get involved in a woman’s pregnancy.
“Perhaps, in the wake of today’s decision, a state law will criminalize the
woman’s conduct too,
incarcerating or fining her for daring to seek or obtain an abortion.
And as Texas has recently shown, a State can turn
neighbor against neighbor, enlisting fellow citizens in the effort to root out
anyone who tries to get an abortion, or to assist another in doing so.”
3. Women’s
rights are being curtailed, especially those of poorer women.
“Whatever the exact scope of the coming laws, one result of today’s decision
is certain: the curtailment of women’s rights, and of their status as free and
equal citizens.
Yesterday, the Constitution guaranteed that a woman confronted with an unplanned
pregnancy could (within reasonable limits) make her own decision about whether
to bear a child, with all the life-transforming consequences that act involves.
... As of today, this Court holds, a State can always force a woman to give
birth, prohibiting even the earliest abortions.
A State can thus transform what, when freely undertaken, is a wonder into what,
when forced, may be a nightmare.
Some women, especially women of means, will find ways around the State’s
assertion of power.
Others — those without money or childcare or the ability to take time off from
work — will not be so fortunate.
Maybe they will try an unsafe method of abortion, and come to physical harm,
or even die.
Maybe they will undergo pregnancy and have a child, but at significant
personal or familial cost.
At the least, they will incur the cost of losing control of their lives.
The Constitution will, today’s majority holds, provide no shield, despite its
guarantees of liberty and equality for all.”
4. This
may be just the first in a series of decisions that roll back the right to
privacy and gender equality.
“And no one should be confident that this majority is done with its work.
The right Roe and Casey recognized does not stand alone.
To the contrary, the Court has linked it for decades to other settled freedoms
involving bodily integrity, familial relationships, and procreation.
... The lone rationale for what the majority does today is that the right to
elect an abortion is not ‘deeply rooted in history’:
Not until Roe, the majority argues,
did people think abortion fell within the Constitution’s guarantee of liberty.
... The same could be said, though, of most of the rights the majority
claims it is not tampering with.
The majority could write just as long
an opinion showing, for example, that until the mid-20th century,
‘there was no support in American law
for a constitutional right to obtain [contraceptives].’
... So one of two things must be true.
- Either the majority does not really believe in its own reasoning.
- Or if it does, all rights that have no history stretching back to the
mid-19th century are insecure.
Either the mass of the majority’s opinion is
hypocrisy, or additional constitutional rights are under
threat. It is one or the other.”
5. The
majority argues that women’s rights today should be limited by what the
Constitution’s authors thought in a more sexist time.
“The majority’s core legal postulate, then, is that we in the 21st century
must read the Fourteenth Amendment just as its ratifiers did.
And that is indeed what the majority emphasizes over and over again.
... If the ratifiers did not understand something as central to freedom, then
neither can we.
Or said more particularly:
If those people did not understand reproductive rights as part of the guarantee
of liberty conferred in the Fourteenth Amendment, then those rights do not
exist.
As an initial matter, note a mistake in the just preceding sentence.
We referred there to the ‘people’ who ratified the Fourteenth Amendment:
What rights
did those ‘people’ have in their heads at the time?
But, of
course, ‘people’ did not ratify the Fourteenth Amendment.
Men did.
So it is perhaps not so surprising that the ratifiers were not perfectly attuned
to the importance of reproductive rights for women’s liberty, or for their
capacity to participate as equal members of our Nation.
... Those responsible for the original Constitution, including the Fourteenth
Amendment,
did not perceive women as equals,
and did not recognize women’s rights.
When the majority says that we must read our foundational charter as viewed at
the time of ratification
(except that we may also check it against the Dark Ages),
it consigns women to second-class citizenship.”
