Recently the US Supreme Court overturned a 50-year-long precedence, Roe v. Wade, holding that the Constitution does not offer any abortion rights to women (Dobbs v. Jackson Women's Health). Even though the holding of Roe was already narrowed by the subsequent Court judgments (Planned Parenthood v. Casey). The abortion rights were synonymous with Roe. Once the court agreed to hear the case challenging Mississippi's abortion restriction, it was expected that Roe would be further restricted. Even though recently confirmed justices, Kavanaugh and Barrett, during their confirmation hearing, said that they respect precedence, it was expected that they would overturn Roe the first chance they get. And they did exactly that. All justices confirmed to the Court are very accomplished legal experts, so, most opinions use very crafty language to justify their holdings, and the opinion of Dobbs is no exception. However, this post is not about the Supreme Court's opinion of Dobbs or the composition of the Court, the post is about the right to privacy and women's reproductive rights. For legal analysis and political arguments there are many resources on the internet, please refer to them.
The Roe opinion used the right of privacy argument to find abortion rights. First, we should decide whether the Constitution offers any right to privacy or not. Either it does not it does not. The general consensus is that it does offer the right to privacy via the Fourth and Fourteenth Amendments. I don't think many would disagree that contraception and pregnancy are very personal and private matters. Every individual must have the right to decide when and how they should become a parent. If a man can decide whether he wants to use any contraceptive or not, and what can be done with his sperm, a woman should have the same rights and control over her body. It should be up to a woman to decide whether to use contraceptives or not, to get pregnant or not, and if she gets pregnant, to continue with her pregnancy or not. Reproductive rights, both for men and women, are their private matters and should come under their right to privacy, which is a fundamental right. If reproductive rights do not come under the right of privacy, then I wonder how anything can come under it. Are my letters, phone calls, my living room or bedroom, and bank statements more private than my sperm, egg, or embryo? Also, why use different standards for men and women? Why does society get to control a woman's body and her reproductive rights but not men's?
The abortion-rights debate is mistakenly framed as a "pro-life" vs. "pro-choice" debate. No doubt, these are catchy phrases and make interesting topics for debates, but they do not offer any solutions. This issue has become a politically polarizing topic with a heavy religious overtone. The result is that abortion has become a political issue for Democrats and Republicans, it is no more about women's reproductive rights. The debate should not have been about "life" or "choice" but about "rights." If should be about as a society do we think a woman has any fundamental right to decide about her body and health? The question is that simple, it is about the reproductive rights of women, nothing more and nothing less, framing it in any other way is not only confusing but wrong. Just because an embryo is involved, we cannot divert the subject to something completely different.
Now, a little bit about embryos. They are the result of the union of sperm and an egg. This can happen in a human body or a petri dish. This can happen during any sexual activity with or without the consent of the people involved in it. There is nothing divine about fertilization or pregnancy, it is a simple biological phenomenon. We all are the product of simple biological phenomena, all mammals are produced this way. Just because nature has given women the ability to carry the pregnancy, we as a society do not get the right to regulate their bodies. Women's reproductive rights are their fundamental rights. Also, like every other fundamental right, this right can be misused. However, we do not take away a fundamental right just because it is being misused, we put reasonable restrictions to curb its misuse. Subsequent decisions after Roe tried to do exactly this until the Court decided that women do not have this fundamental right at all. We have reasonable restrictions on all fundamental rights, so why not treat abortion rights in the same way.
A little bit about, textualism, the argument used to argue that the Constitution does not provide abortion rights expressly and therefore, they do not exist. Even textualists interpret the Constitution, to define the scope of fundamental rights. The phrase "freedom of speech" from the First Amendment is interpreted to include modern modes of communication, including the burning of the national flag, and the word "Arms" from the Second Amendment is interpreted to include modern guns. So, why to object the inclusion of abortion rights under the right of privacy? If abortion is not a fundamental right, then is the use of contraceptives a fundamental right? Right to marry a person of their choice a fundamental right? Because the Constitution does not expressly talk about these rights as well. Already women fought long and difficult battles to get basic rights like voting, and now we are again moving the clock backward by taking away some of their fundamental rights.
Thank you for reading and please share your views on this topic.
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