This commentary is by Narain Batra, a resident of Hartford who teaches in the graduate college at Norwich University. He is the author of “The First Freedoms and America’s Culture of Innovation,” and the most recently “India in a New Key.”
The U.S. Supreme Court’s decision shouldn’t have come as a surprise, especially after Justice Alito’s leaked initial draft majority opinion made no bones about the issue that the 1973 right-to-abortion Roe v. Wade decision had no constitutional validity.
Although expected, it shook us up and threw into turmoil the entire much-divided nation of red and blue and purple states.
Some celebrated the ruling as joy to the world, while others mourned the overturning of the landmark decision that had given women for 50 years a sense of liberty, dignity, reproductive freedom, and control over their bodies.
But it was Justice Clarence Thomas who turned out to be a Jack in the Box shocker when he said that the Supreme Court should reconsider its decisions regarding gay marriages and access to contraception.
Writing for the majority, Justice Alito said the Roe decision was “egregiously wrong” because “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
Furthermore, adding his own opinion to the Mississippi case Dobbs v. Jackson Women’s Health Organization, he said, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
By nullifying its own precedent, the court diminished women’s constitutional rights. In contrast, on the other hand, in Brown v. Board of Education (1954), the court — by overturning its previous precedent in Plessy v. Ferguson regarding “separate but equal” racial segregation laws — it had enhanced people’s constitutional rights.
Americans look to the Supreme Court to protect and enhance their freedoms, not diminish them. Today only 25% of Americans have confidence in the Supreme Court, which is down from 36% last year, according to a Gallup poll.
A recent poll by Wall Street Journal-NORC at University of Chicago, which was conducted after the leaked document, showed that more than two-thirds of Americans wanted women to have uninhibited access to legal abortion, upholding Roe v. Wade. But the extremist conservative court, reinforced by three recent Trump-appointed justices, turned tone-deaf and blind to the prevailing mode of consciousness.
During the confirmation hearings, all three newly appointed justices, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, had given assurances that they supported Roe v. Wade, and that the abortion precedent had judicial sanctity. No one saw through their Jekyll-Hyde façade. One may smile and smile and still be a villain, as has been said.
By overturning the constitutional right to abortion, the Supreme Court has let loose social and political chaos.
Since the Constitution is mute about the issue, according to the court’s regressive reasoning that ignored the 14th Amendment on which the Roe right to reproductive autonomy was based, it defederalized abortion and passed on a most thorny complex issue to be decided by warring state legislators. In fact, it opened a Pandora’s box of endless litigation and street protests.
Since the gridlocked Congress is unlikely to take any decisive legislative action, the issue would be decided at state levels, and the results would differ from state to state, from total ban to various degrees of freedom.
Since the abortion-banning states are mostly in the South and Midwest, and geographically strung together, women would have to travel hundreds of miles to go to abortion-providing states to terminate their pregnancies. The court decision would have economic costs and would disproportionately affect poor women, especially Black and Latino, either which way they go, whether they go for abortion or continue with their pregnancies.
Nonetheless, despite legal, economic and physical challenges, women would not give up their reproductive freedoms and would have access to contraception and abortion procedures, whatever it takes.
The Supreme Court should not have a chokehold on people’s lives. In an open, dynamic social-political system, there must be an alternative, other than the Supreme Court, for women to preserve their reproductive autonomy. In America, power is widely distributed not only among three branches of government — the White House, the Supreme Court, and Congress — and 50 sovereign states, but also corporations and businesses, NGOs and myriad social activists who play a big role in our lives.
It is important to keep in mind that in a post-Roe America, women’s abortion rights would become an important issue in the forthcoming elections. Not only state and federal lawmakers would have to reset their election platforms, but also businesses and corporations would need to reposition themselves and provide women in their workforce with opportunities to exercise their reproductive freedoms, without which productivity might be adversely affected.
Many U.S. corporations — including banks, tech companies, entertainment businesses and retailers — have already announced plans to extend their employee benefits to cover out-of-state travel for abortions.
In the long run, apart from legislative actions to protect women’s abortion rights — which, looking at the present cultural and political divisiveness would necessarily differ from state to state — it’s large businesses and corporations whose values would mitigate the harm that the Supreme Court has done to women.
More importantly, it’s medical technology that would enhance women’s freedom — a future liberation technology that would make abortion unnecessary, thus solving our moral dilemma whether life begins at conception or somewhere down the trimester road.