The Supreme Court has turned its back on women's rights - will the women strike back?

November 10th 2022

Sixty-two percent of Americans support the right to abortion, and still, the Supreme Court decided that it was time to end almost 50 years of legal precedent that the earlier Supreme Court decision Roe v. Wade had established in 1973. The Supreme Court decision, Dobbs v. Jackson Women’s Health Organization, delivered in June this year, ended the federal level protection for the abortion right and lets individual states restrict the procedure as much as they want. This can also mean eliminating it completely, as 13 states have already done, with no exceptions for incest or rape. Moreover, doctors have also been uncertain if they are even allowed to perform abortions in situations where a pregnant woman’s life could be at stake. In the worst-case scenario, the doctor who performed the abortion could face a life sentence in jail. Furthermore, this could also put pregnant women’s lives at stake if the doctor is unwilling to do the procedure if they fear it could put them in jail.

At first glance, the Supreme Court’s decision to overturn Roe v. Wade might have been shocking for many people, especially if they have not been paying attention to the recent development of the Supreme Court, where the conservatives now have a six to three majority. Moreover, all the conservative justices identify as Catholic and hold strongly religious views that form the basis for this extreme setback in the rights of American women. Statistics covering different outcomes of religious cases show how the Court has been especially favorable for religious groups during John Roberts’s time as the Chief Justice. Robert’s Court has favored religious groups 83 percent of the time, which is overwhelmingly more than any other Court has done since 1953.

Justice Alito, who wrote the majority ruling in the case, justifies the Court’s decision by pleading to the Constitution since it does not mention abortion and thus cannot be used to defend the right to abortion. Moreover, Alito argues that the issue of abortion should be left to voters to decide since that is how things get decided in democracies. Alito emphasizes this point further by acknowledging how “abortion presents a profound moral issue on which Americans hold sharply conflicting views.” However, these arguments have substantial problems that make the Court’s decision to take away women’s right to abortion fundamentally wrong.

Starting with Alito’s emphasis on the Constitution, relying on a document written over 200 years ago to decide how women’s rights should be treated in the current time is deeply problematic, one of the reasons being that no women were writing the Constitution, and the position of women in society was vastly different at the time compared to the world today. The Constitution does not even acknowledge women, so how can this document be used to define women’s rights in 2022? Secondly, arguing that an issue like abortion should be decided separately at the state level is problematic as well. How can we take a human right and say that we should let the voters decide if we should honor it or not? Human rights should be universally accepted instead of being up for debate. Thirdly, although Alito frames the abortion debate as a highly divisive issue in the United States, which it certainly is, the reality remains that currently, 62 percent of Americans support the right to abortion, at least in some form, compared to 36 percent that opposes it. In the end, it really comes down to women’s sovereignty over their own bodies and if we believe that is a right that should be respected. This Supreme Court decision does not respect this fundamental human right and gives the ultimate power to politicians. As Justice Kagan writes in her dissent, “young women will come of age with fewer rights than their mothers and grandmothers had.”

However, as problematic as the majority opinion by Justice Alito is, the concurring opinion by Justice Thomas is perhaps even more shocking. In this opinion, Justice Thomas argues that the decision to overturn Roe could also in the future be used to overturn other Supreme Court cases. He mentions cases like Griswold v. Connecticut (the right of married couples to use and have access to contraception), Lawrence v. Texas (prohibited the criminalization of sex between people of the same sex), and Obergefell v. Hodges (legalized same-sex marriages). Even if these rights are currently not under threat, the first step in taking people’s rights away is to state out loud the possibility to do so.

Many people oppose abortion because it goes against their own moral views, as they essentially see abortion as killing a human being. Therefore, these people argue that fetuses should have human rights even if they have not been born yet. Thus, it is hard for them to accept the arguments of the opposing side since their moral views differ so much. So, this kind of viewpoint that arises from a different moral view can quite easily be understood regarding the abortion debate. Nevertheless, when looking closer at the history of the Republican Party and how their view on abortion rights have changed over the years, in addition to family-friendly policies they are unwilling to support, the sincerity of the whole pro-life movement could be put into question.

During the 1960s and 1970s, the Republican Party used to support abortion rights, and they even passed many bills that made it easier for women to get an abortion. Ironically, Ronald Reagan, the future Republican president that opposed abortion in his presidential campaign, signed one of the most progressive abortion laws in the country in 1967 when he was the governor of California. Moreover, a survey from 1972 showed that Republicans overwhelmingly supported the right to abortion, as 62 percent of them argued that abortion should be an individual choice of the women and the government should stay out of it. The position of the Republican Party as a party of pro-choice changed permanently during the late 1970s when the Republican Party realized the potential electoral advantage that opposing abortion could give them as they could attract many evangelical Christians to the ballot boxes. So, in the end, the Republican Party decided to turn its back on its own principles of anti-regulation and anti-state to gain more political power. The primary beneficiaries of this situation have been evangelical Christians who have made their anti-abortion stance mainstream, and the sufferers are women who are paying with their bodies. It makes one wonder if abortion would even be as big of an issue in the country if Republicans had not changed their views or, should I say, their political strategy regarding abortion.

As a party that strongly supports the rights of fetuses, one could only assume that it would also support policies giving families financial aid to help them raise their children. However, this is not the case, as historically, the Republican Party has consistently opposed policies that would support families after the baby is born. If Republicans and abortion opposers cared as deeply about human lives as they care about fetuses, they would not oppose these kinds of policies. Furthermore, the most radical conservatives have even demanded that abortion be considered murder in front of the law, making the death penalty a possibility for women who get abortions in certain states. It seems quite incongruous that people who defend so vigorously the right for fetuses to live are just as ready to end actual human lives.

When the Supreme Court delivered its decision in late June this year, there seemed to be real momentum among women to show up in large numbers at the ballot boxes during the midterm elections, but now, when the election is days away, the situation looks drastically different compared to the summer. In the minds of voters, other issues, especially the economy, are seen as far more critical than abortion rights, as 44 percent of the voters see it as the most important issue compared to only five percent of voters who favor abortion. Furthermore, the current forecast by FiveThirtyEight shows that Republicans are the favorites to win both the Senate and the House. While the Senate is still going to be a tight race that could go to either party, the Republicans will almost certainly win the House, where FiveThirtyEight predicts that Republicans have an 84 percent chance of winning. Conventionally, it is not surprising to see Republicans ahead since, historically, the party controlling the White House has usually lost the midterm elections. Moreover, the current approval rating is not great for President Biden since only around 42 percent approve of his way of governing, which could also suggest strong election results for Republicans.

On the other hand, there are signs that American women will rise in large numbers and show their support for abortion rights. For example, Kansas, a traditionally Republican state with conservative values, voted to codify the right to abortion in its Constitution by 18 percentage points, a surprising result for many people. Could this happen in large numbers at a national level as well? In the end, the voters will decide on election day which party wins the majority in the House and the Senate, and the different predictions about elections do not always materialize. Secondly, a poll conducted by Voters of Tomorrow/Generation Labs shows that 78 percent of young people between the ages 18 and 24 supporting Democrats are either definitely or probably going to vote in the coming midterm elections. Moreover, abortion ranked as the most important issue for these voters, and 53 percent of Democratic supporters state that the Supreme Court’s decision to overthrow Roe v. Wade has increased their desire to vote. Lastly, as much as 74 percent of all the people surveyed say that they are unwilling to vote for a person who would not maintain early access to abortion.

Overall, despite these signs that indicate that the Supreme Court’s decision to take away women’s right to abortion could mobilize many voters, the current advantage that the Republicans have in the polls seems likely to be too big for Democrats to overcome. It seems that winter is coming, after all.