By John Lewis and Stuart Gaffney–
As we celebrate last week’s historic victory for marriage equality in Chile and take a break for the winter holidays, we must also remain cognizant of what happened at the U.S. Supreme Court on December 1 at oral argument in Dobbs v. Jackson Women’s Health. That’s the legal case in which the Republican Catholic Supreme Court majority could possibly strip women (as well as nonbinary, intersex, and transgender people who can become pregnant) of their most basic Constitutional right to exercise control over their own bodies when it comes to reproduction.
At issue in the case is a Mississippi law that prohibits women from obtaining an abortion after 15 weeks of pregnancy, a time before which some women may not even know they’re pregnant or have the means or ability to obtain an abortion. The law makes no exceptions for cases of rape or incest.
The State of Mississippi also asked the Supreme court to overrule its 1973 landmark Roe v. Wade decision and allow states to outlaw abortion entirely, even in cases of rape or incest. U.S. Solicitor General Elizabeth B. Prelogar explained to the Court that “nearly half of the states already have or are expected to enact bans on abortion at all stages of pregnancy, many without exceptions for rape or incest.”
The State of Mississippi and myriad other opponents of women’s reproductive freedom seek to permit states “to force women to remain pregnant and give birth against their will,” in the words of Julie Rikelman, Litigation Director of the Center for Reproductive Rights, who argued the case on behalf of Jackson Women’s Health. A woman who was brutally raped could be forced to go through a compelled pregnancy and bear the child of her attacker.
Rikelman further explained: “It’s 75 times more dangerous to give birth in Mississippi … than it is to have a pre-viability abortion,” and highlighted that “those risks are disproportionately threatening the lives of women of color.” Nearly a quarter of all American women have had an abortion. Black women have abortions at the highest per capita rate in the U.S., at a rate 2.7 times higher than non-Hispanic white women, according to 2017 data from the Guttmacher Institute. Hispanic and other women of color also have more abortions per capita than non-Hispanic white women. Further, 75% of women who have abortions are poor or low income, with 49% below the federal poverty level.
Yet the people whom the decision will most affect have no say in the decision. No poor women of color, or poor women at all, sit on the Court. The Court has no African American women Justices. The sole woman of color in the Court’s history, Justice Sonia Sotomayor, made no secret of her perspective on the case, dismantling the State of Mississippi’s arguments at each and every turn. She described the “stench” that would hang over the Court were it to overturn decades of abortion law precedent, less than two years after the last of three Trump nominees joined the Court.
The six-member wealthy, conservative Republican majority poised to undermine or overturn abortions rights in America includes: four white, cisgender, heterosexual men (three of whom are conservative Catholics and one who is conservative Catholic turned Episcopalian), a white Catholic woman, and Clarence Thomas, a Catholic African American man who in no way represents the perspectives of the majority of African Americans.
None of these Justices has demonstrated personal, first-hand familiarity with the struggles of poor women of color, upon whom they seek to impose their will. Thomas, who was elevated to the Court despite Professor Anita Hill’s sworn testimony that he sexually harassed her, and Brett Kavanaugh, who won confirmation in the face of Dr. Christine Blasey Ford’s sworn testimony that he sexually assaulted her, particularly lack credibility to decide the case.
Further, some Court observers fear that overturning Roe v. Wade could lead to the Court’s overturning Lawrence v. Texas, which invalidated laws criminalizing intimate sexual activity between persons of the same sex, and Obergefell v. Hodges, which made marriage equality the law of the land. All three cases rely on the Constitutional doctrine of personal liberty founded in “substantive due process.” At oral argument, both Kavanaugh and Barrett appeared perhaps to try to assuage such fears, seeming to imply they saw distinctions between the cases.
Mississippi State Solicitor General Scott Stewart also emphasized that overturning Roe would not undermine these cases, and in so doing made a stunning admission. He described the court’s prior rulings that “you can’t ban intimate romantic relationships between consenting adults” and “can’t ban marriage of people of the same sex,” as “clear rules” upon which many people have relied that “have not produced negative consequences.”
After decades of fear mongering on the part of LGBTIQ rights opponents, Stewart’s acknowledgment that decriminalization of same-sex love and marriage equality have resulted in no “negative consequences” is truly an astonishing turnabout. Although one could dismiss Stewart’s words as well as those of Kavanaugh and Barrett as disingenuous or calculating, they may evince how far the LGBTIQ movement has come, as does the recent marriage equality victory in Chile after years of struggle and adversity.
Forcing women to remain pregnant and bear children against their will has no place in a free society and fundamentally undermines the human rights and dignity of women and other queer people who can become pregnant. Now is the time for all Americans who believe in basic freedom and bodily integrity to stand up and make their voices heard.
John Lewis and Stuart Gaffney, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.
Published on December 16, 2021
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