#BTColumn – Reversing Roe vs Wade

Disclaimer: The views and opinions expressed by the author(s) do not represent the official position of Barbados TODAY. 

by Ralph Jemmott

Abortion is not one of the things to which most Barbadians give much thought. I think I am right in saying that it is legal in Barbados but one is not sure precisely under what circumstances.

In my experience the topic comes up mainly in conversations with persons of the Roman Catholic persuasion who take a decidedly pro-Life position. However I notice that attorney Garth Patterson in a recent article sees it as one of the items that should concern the Constitutional Reform Commission.

On June 24, 2022 the U.S. Supreme Court’s reversed the 1973 decision known as Roe vs Wade. This reversal raises a number of concerns. Firstly, it overturns almost fifty years of precedent. That Court like most High Courts usually respects precedent and as Emily Bazelton of Yale Law School has pointed out, on those occasions where The Supreme Court does roll back precedent, it is invariably done to advance individual and collective rights rather than to take away  such rights as the recent decision has emphatically sought to do.

Judicial activism is not unknown to The U.S. Supreme Court. In 1953 Earl Warren was appointed Chief Justice by President Dwight D. Eisenhower.

The Warren Court (1953 -1969) worked to expand rather than constrict civil rights. One of its most significant achievements being Brown vs the Board of Education which ruled that racial segregation in American public schools was illegal.    

The second concern is that the reversal goes against much of American public opinion. A number of polls consistently suggests that about 63 per cent of Americans support Roe Vs Wade, while only about 30 per cent consistently advocate overthrowing the 1973 ruling. Thus it would appear that the Supreme Court is seriously at odds with majority mainstream public opinion. This raises serious questions as to whose interest the Court is serving.

The third concern is the degree to which the revocation fails to accept the notions of privacy and liberty in terms of allowing a woman to control her own body in relation to the reproductive process.

It is estimated that the ruling will take away abortion rights from women in 26 of America’s 50 states. This seems a highly unwarranted intrusion into what for most women must be a highly personal matter. Certainly women must be trusted with the right to choose on matters that affect them most intimately.

The issue is not just one of abortion, it involves women reproductive health care generally, including cases of miscarriages, foetal abnormalities and other pre-natal concerns.

The overturning of Roe will disproportionably affect poor black, brown and indigenous women and those living in rural areas with marginal access to care.   

The fourth and weightiest concern arising out of the recent decision, is the direction in which the Supreme Court is headed in its political orientation.

The decision has had the effect of further dividing American society and exacerbating the animus between Democrats and Republicans which already threatens to tear America apart.

There is already talk of a possible Second Civil War. Some Democrats would have President Biden step in to reverse the Supreme Court decision but he lacks the power to do that, certainly not by any kind of executive order.

Under the American Constitution the Supreme Court is not answerable to anyone. However the politics of the Supreme Court reflects political manipulation by the Trump led Republicans.

In fact Trump claims that the revocation of Roe was his victory having successfully placed three Conservative Justices, Neil Gorsuch, Brett Kavanaugh and Aimey Coney Barrett on the Bench during his Presidency.

It is not uncommon for American Presidents to select judges who support their ideological position, but as the Select Committee hearings are proving, Trump was more of a mob boss than a President.

Interestingly at the hearings for appointment to the Supreme Court all three indicated their willingness to retain Roe as undeniable precedent. Gorsuch said it had been confirmed many times and Kavanaugh agreed that it was in hcs words ‘precedent on precedent.’ Were they deliberately lying?

The American Constitution like any other document including the Holy Bible is subject to exegesis or interpretation. In fact Justice Antonin Scalia wrote a book entitled, ‘A Matter of Interpretation: Federal Courts and the Law.’

Scalia who passed away in 2016 was described as ‘the intellectual anchor for the originalist and textualist position on the U.S. Supreme Court’s conservative wing.’ His opinions varied considerably from those of his good friend and fellow Justice, Ruth Bader Ginsberg who was a liberal advocate for gay rights, gender equality and women rights.

Some Supreme Court judges have opted for a stricter interpretation of the Constitution than others.

Not being a lawyer myself I have always wondered how a document written in the late eighteenth century can be so strictly interpreted to govern the completely changed environment of today.

Certainly the Law was made for Man and not Man for the Law. The recent judgement held that the right of women to privacy is not enshrined in the American Constitution, but a lot of things are not so enshrined.

Women are not mentioned in the Constitution at a time when females did not have the vote. Blacks were not mentioned and two centuries later they were still struggling for basic human rights and freedoms.

Across the western world opinion on abortion and abortion rights vary considerably. In much of Europe abortion is not a constitutional right but is widely permitted up to 12 weeks of pregnancy.

In the U.S.  in those States that permit abortion, it is allowed up to 14 weeks. Some Americans mostly Catholic and fundamentalist Pentecostals reject abortion altogether even in cases of rape and incest.

The extreme of this position are those who still reject any form of contraception.  Margot Sanger Katz, Health Care correspondent for the New York Times, suggests that the long term trend is towards liberalising abortion law rather than constricting such legislation.

If this is true, Justice Clarence  Thomas view in his concurring opinion overturning Roe gives tremendous cause for concern.

He seems to be suggesting that the revocation of Roe opens the door for overturning decisions relating to same-sex marriage and even contraception which would drastically encroach on any individual right to privacy.

Fellow Justice, Samuel Alito has cautioned against reading too much into the Thomas’ opinion, but given the current complexion of the Supreme Court, no one can be sure as to how far it may be inclined to push its judicial activism more and more to the extremes of the political right, in restricting time honoured freedoms.

The answer for the majority of American women is to see the issue of abortion rights as a key factor in the up-coming mid-term elections due in November. They should vote against those who are not prepared to act in their proper interests by guaranteeing choice and the right to determine the ability to control their own bodies. To do otherwise would be socially regressive and fundamentally wrong.

Ralph Jemmott is a retired educator and regular contributor on social issues.