Historically Speaking: The State of Abortion Rights, June 2022
By Will Bellaimey:
Watch the latest installment of Historically Speaking with Will Bellaimey or read the transcript below!
I’m Will Bellaimey, and I’m here for the latest in our series Historically Speaking, where we’re making connections between things that have happened in the past, which is what I teach about as a history teacher, and what’s happening in the news.
The last time we talked, we were talking a lot about abortion rights and the possibility that the Supreme Court could overturn Roe v. Wade. And that appears to be what's about to happen. There was the leak of Justice Alito's opinion in this Mississippi case. I think many people expect it to be a test of whether the conservatives on the Supreme Court have the votes to fully overturn Roe or just to continue to chip away at it, as I talked about the last time; you can go back and read a kind of summary of the arguments about how they might do that. But now we at least provisionally know that what they're planning to do is a full repudiation and overturn of that precedent, which has lasted for over 50 years. And it's a pretty big deal.
I think a lot of the news right after the leak came out kind of focused on who leaked this information and why. And in part that was a strategy to try to distract from the gravity of taking away millions of people's right to choose to have an abortion. I think my first reaction, like many people's, to hearing that that leak took place was that it was probably a liberal law clerk who would be really upset about this decision, and that therefore they were just trying to kind of embarrass Justice Alito or get the public mobilized; but, having read what people who are actually veterans of the Supreme Court clerkships have said, I actually think it's more likely that it was leaked by a conservative. The reasoning is that when you have a provisional opinion of the Supreme Court, which by the way, it's completely unprecedented for an opinion, especially an opinion of this level of importance, to be released in a draft form.
And one of the reasons why is that there are often situations in which, after a draft has been circulated, you see some movement of justices. This is one of the reasons why Roe v. Wade stood as long as it did, because in the 1992 case Planned Parenthood v. Casey, Justice Kennedy and Justice O'Connor after an original vote that seemed like it was gonna overturn Roe found a more moderate approach that was somewhere in between upholding and overturning. And I think the only reason why someone would really want to leak an early draft opinion is if they're trying to prevent that kind of last-minute switch from taking place. And so if the majority opinion is this kind of full-throated repudiation of all of the standards and the right to privacy and all these things that we talked about last time, then it's probably in the interest of an Alito or a Thomas clerk to make sure that say a Kavanaugh or a Roberts isn't able to find some last-minute compromise. Maybe we'll find out, I know that they're trying to do an investigation. I think it's more likely that we'll never know, but that was kind of an interesting, if you're a court watcher, moment to consider what's really going on between the justices.
Obviously the bigger issue has nothing to do with what's going on inside the Supreme Court, it's what's about to happen all across the country as states pass new laws either completely restricting abortion in all cases or putting much stricter limitations on the right to choose. Unfortunately, I don't have a really good historical precedent for a constitutional right that's been recognized suddenly being taken away. I think this is a huge victory for the conservative movement that has for years said that this is kind of a made up right that shouldn't be there. But from a policy perspective, we tend to operate under the assumption that when the Supreme Court says that you have the right to something, people might grumble about it, but we're gonna build a system of laws based around those limitations.
When it comes to what happens next, I think you're gonna see a shift in the battle over abortion rights from the courts to the legislatures and also to forms of activism that may involve civil disobedience of one form or another. As we talked about last time, the availability of pills that can terminate a pregnancy will suddenly become a really important lifeline for people living in states where they can't get a safe, legal abortion. And I think there'll be some interesting battles to try to ban sending that through the mail or doing it online. What we've seen in a lot of Latin American countries that have been actually slowly moving towards making abortion safer and more legal is that in places where that hasn't yet happened, these pills have been really widely used. So that's one aspect of the activism.
I think the other is more of a campaign state by state to see how you can influence these laws. Blue states are gonna continue to push to make sure that people can get abortions safely, and red states are gonna push in a direction that wasn't allowed before Roe v. Wade was taken away. And that will mean that the difference between being a poor pregnant teenager in Mississippi and in California will be vast. And clearly the biggest determining factor will be where you live and what sort of ability you have to pay to travel to somewhere else.
Another question that's been coming up in reference to this decision is what about other rights that have been established in the last few years based on some similar principles? Roe v. Wade is probably the most famous case to establish the right to privacy, but it was based on the Griswold v. Connecticut and Eisenstadt (v. Baird) cases, which said that the right to birth control falls under the right to privacy. Some aspects of the substantive due process argument that underlies this idea of fundamental liberties is also at the basis of the cases that struck down anti-sodomy laws, the cases that ultimately established the right to marriage for same-sex couples. So I think from a theoretical perspective the theories that those cases are based on are very much in jeopardy. And I don't see any reason why you couldn't start bringing litigation that would challenge aspects of those cases. That being said, I think each case has its own set of factors. And in the case of marriage equality, we're not just talking about a right to privacy or a fundamental liberty; we're also talking about equal protection cases.
Equal protection cases are not exactly the same as due process cases like Roe v. Wade. And in fact, as I talked about the last time, Ruth Bader Ginsburg thought that if we had based abortion rights on an equal protection argument instead of on this sort of shakier right to privacy, that it'd be harder to undo. And I think because the lawyers who argued for the right to marriage understood the importance of multiple prongs, I think it's actually less likely that we're gonna see those cases immediately overturned; but a few years ago, the idea that Roe v. Wade would be completely overturned within a decade seemed crazy. And so I certainly wouldn't feel that anything is off the table at this point.
Will Bellaimey teaches U.S. Government and Politics at Flintridge Prep School outside Los Angeles where he is also the director of the Los Angeles Museum of Geography, which is staffed entirely by seventh graders. His podcast, All the Presidents, Man, is available here.