I’m a victim of incest, multiple rape incidents, and forced abortion. Let’s talk first drafts.

If we were to play a word association game like Trump’s infamous cognitive test, let’s start with

Abortion
Women
Choice
Rights
Freedom

Something like that, right? Someone please put that on a shirt and send it to me.

Late Monday, May 2, 2022, the first draft of Justice Samuel Alito’s opinion on the Mississippi case Thomas E. Dobbs v. Jackson Women’s Health Organization was leaked to Politico (now on The Washington Post). On Tuesday, the Supreme Court acknowledged that this document was genuine. “The nightmare is real,” they should’ve said.

While Justices are able to change their mind until a final decision is presented in Court. Typically, one Justice will write an opinion that states the reasoning for why the Justices who voted on one side. Another Justice will write why the other Justices descent, or disagree with the majority.

In a 5–3–1(maybe) preliminary decision, the outcome split right down party lines. The Republican party currently has more Supreme Court Justices than the Democratic party. Thus, in this decision, the Republican party decided to overturn precedent (Roe v. Wade) and precedent on top of precedent (Planned Parenthood v. Casey).

Cards on the Table

In plain terms, what does this mean? The current Republican party is choosing to ignore major decisions regarding abortion that have stood since 1973 (Roe v. Wade) and again in 1992 (Planned Parenthood v. Casey). Overturning these cases will make abortion a state-level decision, not a federal law. While abortion will be illegal in many states, typically red states, exceptions and legality depend on the State; thus not all states will outlaw abortion, like typically blue states. This is a blatant move toward stripping women of their ability to choose what happens with their own bodies. The state government will have dominion over pregnant women.

Currently, 13 states have trigger laws that will be implemented once Roe v. Wade is overturned by the Supreme Court. These laws ban abortion with a variety of exceptions, who is considered at fault, and the consequence of getting or conducting an abortion. In total, 26 states will have anti-abortion laws enacted in about 2–3 months.

26 states. That is a shade more than half of the United States of America, the “land of the free.” Though, in more than half of the states, women will not have the freedom to decide what is best for themselves and what is best for their baby, in places, regardless of how they became pregnant. Please see the table below for the current states with trigger laws and their considerations for abortion, at the time of publishing this piece.

Wait, no exceptions for rape and incest?!
States in red indicate states with abortion bans or trigger laws. States in yellow indicate states that have anti-abortion laws on the ballot during the midterms.

If Roe v. Wade is overturned, the Southeast and Midwest regions will be most affected, more so people of color and low-income communities in these states. Those who are seeking a healthy, safe abortion conducted by a licensed doctor will essentially have to go to either the east or west coasts. Though, to understand what we’re up against is to try to understand the opposing side, which Justice Alito does not do.

Republicans’ Main Reasons for Overturning Roe and Casey

The Supreme Court is currently hearing the Dobbs v. Jackson Women’s Health Organization case. The Republican majority is using this opportunity to overturn the decisions made by the key previous abortion cases, Roe v. Wade and Planned Parenthood v. Casey. The main idea of Justice Alito’s leaked opinion is that both Roe and Casey’s methods of determining viability, or the point during pregnancy at which the fetus can potentially live outside the mother’s womb, are both ambiguous and inconsistent with America’s history, traditions, and Constitutional text.

Furthermore, since abortion is not written in these touchstones, its policy should be determined by each state’s elected representatives (Alito, 2022, 6). He quotes Justice Scalia’s written opinion in Casey, “‘The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting’ Casey, 505 U. S., at 979” (qtd. in Alito, 2022, 6).

Let’s break this down. Because abortion is not in the Constitution or has historical Supreme Court precedent over the past several centuries, it should not be decided in federal court? Yeah, I’m pretty sure computers, cryptocurrency, and drones are all not in the Constitution as well. Unless Elon Musk found a way to time warp. Also, who wrote and signed the Constitution? A bunch of men! White men, to be exact.

And what’s that running document we kind of staple to the Constitution? Oh right, The Bill of Rights. That’s when we tack on laws Americans did not sort out before and felt the need to standardize when it became an issue, such as, I don’t know: the right to free speech, the Republicans’ favorite the right to bear arms, women’s right to vote, the emancipation of slavery. You know, the small stuff.

My question is why can’t we add abortion rights onto the Bill of Rights. Because it would give too much definitive precedent moving forward, and we need to focus on the past. How far back are we talking? Justice Alito cites Henry de Bracton’s 13th-century treatise that states striking or poisoning a pregnant woman and causing an abortion when the “foetus be already formed and animated” is considered homicide (qtd. in Alito, 2022, 16). This treatise is 500 years older than freakin’ America! De Bracton served on the English council, not American. English traditions, history, and policy. Columbus was not even thinking about spices or genocide yet. Nor his ancestors. I feel like there should be a cut-off date for this “history” Justice Alito keeps alluding to in this 98-page op-ed.

Alright, shake it off. Please don’t @ me, Taylor. I love you.

To Justice Alito’s second main decision to move the responsibility of deciding on the nitty-gritty of abortion to the states, this means each state will have their own laws regarding at what point in a pregnancy can abortion can be done, exceptions to this time constraint (incest or rape), and who can be held responsible for an illegal abortion, from the Uber driver to the mother to the doctor conducting the procedure. Legislators from all 50 states and D.C. will be able to pick and choose what they deem is right like they’re choosing pizza toppings. This isn’t confusing at all.

Clearly, there are many problems with this draft opinion. At least it says “DRAFT 1” with a yellow highlight. This merely scratches the surface of analyzing this draft and the ramifications if this decision is passed, sending us back to, apparently, 13th-century England.

Why Roe’s Precedent is “Weak”

Roe v. Wade held the claim that a ban on abortion was unconstitutional, vague, and infringed upon civilian privacy rights outlined in the 9th and 14th Amendments as well as citing Griswald v. Connecticut as a precedent for the “zone of privacy.” This video discusses Roe v. Wade in a brief, easy-to-understand way. From the Legal Information Institute of Cornell Law School:

The 9th Amendment boils down to “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Courtesy of James Madison, this clause is used to extend to rights not touched upon in the Constitution, such as abortion or drones or cybersecurity.

The 14th Amendment states in five parts: All people born in the US are citizens and granted the same rights within its jurisdiction, which “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law;” the calculated number of representatives proportionate to its population are elected by citizens voting; no one shall hold any office, Congress or Senate seat or Vice President or President position if they have engaged in an “insurrection or rebellion” against the US (hmm) or have given aid to enemies; the US is not responsible for debts due to “insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave”; and lastly, Congress has the power to enforce these laws (LII).

Alright, alright, alright. Let’s address the elephants that just stampeded into the room. 1) You can’t hold high office if you were part of an insurrection? Trump, you sure you can run again? Let’s kick this case up a notch, please. It’ll be 2024 before we know it. 2) This Amendment was added in 1868, five years after the emancipation of slavery. Money regarding the ending of slavery is in the Bill of Rights, thus the Constitution. Best make a law solid if it regards the US owing people money for its wrongdoing.

Roe used the same Amendment to support the right to privacy using the Due Process Clause in the 14th Amendment, Article 1 (what’s in quotes) in combination with the 9th Amendment (also in quotes), which is used to tack on rights that seem to fall under the first eight amendments but were not specifically mentioned. Thus, we have the right to privacy using the word “liberty” in the 14th.

In the leaked opinion, Justice Alito (2022) writes, “‘Liberty’ is a capacious term. As Lincoln once said: ‘We all declare for Liberty; but in using the same word we do not all mean the same thing.’” (13). Roe claimed Liberty included the right to privacy, thus the US or States do not have claim to abortion under the guise of personal/medical privacy. However, Justice Alito used Abraham Lincoln’s words to declare Liberty as too vague for all people to interpret the 14th Amendment as protecting the right to privacy, but then in comes the 9th Amendment to essentially say “etc.” As Justice Alito relies on common law precedents from the 1800’s (and let’s not forget that weird one from the 1200's), he considers abortion to be a decision made by the States (15). Why? Because of America’s history, tradition, and Constitutional text! We must not stray from the foundations of America that were created before America was even found. Weird, right?

We often think of Roe v. Wade as banning abortion altogether, but actually, the Court thought States did have an interest in protecting life at a certain point. The Court ruled with a term-based approach based on pregnancy and viability: first trimester favors the woman’s privacy, the second trimester favors the woman’s health but can find justification either way, and the third trimester involves the State’s interest in human life (Quimbee, 2015). And with this ladder of playing Who’s Daddy?, Texas law was struck down in favor of a woman’s right to choose in the first trimester.

In February, Justice Alito did not hesitate to point out that 34 states prohibited abortion in some capacity at the time of Roe v. Wade, and after the case, some states still did not agree that Liberty included abortion and leaned on, say it with me: history and tradition. Justice Alito even includes an appendix of all these states’ laws and the year they were ratified banning abortion in some capacity. Yes, many were rooted in the 1800s. It’s like the reverse of getting canceled for something you said 15 years ago.

Laws change as society changes and people evolve. The “perfect Union” is an ideal that is not set in stone. It has history and traditions and a piece of paper to prove it, but speaking for myself, I’m not exactly proud of everything on that paper. “Men were created equal” did not mean people. It meant White men. So using the history, tradition, and Constitutional text argument would send us back to when we thought the Earth was flat and Columbus thought he was in India, or New India, or whatever before he and his white gang of thugs slaughtered everyone.

As long as there are advancements in technology and communication, among other fields, laws must be made, not according to history or tradition or the Constitution, because new things don’t have these foundations just yet. We need to leave room to add legislation and to modify old laws that aren’t applicable anymore. America loves to gloat about its advancements and achievements, so how about we do less gloating and more advancing and achieving?

Why Casey’s Undue Burden Test Doesn’t Correct the Issue

In 1992, Roe v. Wade was used as the main precedent for Planned Parenthood v. Casey. Eyes turned from Texas to Pennsylvania. For a brief, easy-to-understand video about Planned Parenthood v. Casey, you can watch this video. As mentioned in Quimbee (2017), 1982, PA passed the Pennsylvania Abortion Control Act, which consisted of five parts:

Women must give informed consent.

Women must receive state-published information 24 hours before their procedure.

Parents must give informed consent for minors.

Married women must notify their husbands.

Providers must keep records and report information.

The Supreme Court struck down this PA law as the Court deemed it unconstitutional for different reasons, but mainly because of the fourth rule about notifying husbands. Go figure. It was kind of like a pick-and-choose of constitutionality for the Court, a fun game, if you will.

Further, while using Roe v. Wade as its precedent, the Court scraped the term-based approach for the undue burden standard, which is that any law cannot put too much burden or be too restrictive of a citizen’s fundamental rights (Quimbee, 2017). Placing a restriction, or substantial obstacle, on a pregnant person can put an undue burden on their right to choose what is best. The Court upheld the right to Due Process.

Side note: I feel like a lot of things are an undue burden: the way we have to do our taxes every year compared to other countries, how we all need PhD’s to work at McDonald’s now, rent prices in major cities, prices of Internet and TV bundles that you don’t want, and umm prices.

In regards to pregnant people, our friend Justice Alito (2022) writes, “These attempts to justify abortion through appeals to a broader right to autonomy and define one’s ‘concept of existence’ prove too much” (32). Too much freedom! Land of the “sorta” free. In essence, we would have too much freedom to determine what is considered another human and whether or not it is too burdensome for us to carry a fetus to full term. Don’t worry because Justice Alito knows exactly what is too burdensome for us. Cool.

Justice Alito noted this shift in strategy from Roe to Casey. The issue of viability as not corrected in Casey, and undue burden is too vague. While Casey used Roe as precedent, the Court did not affirm or refuse the logic used in Roe v. Wade. Lastly, you guessed it, the decision made in Casey was not rooted in US history, traditions, or Constitutional freakin’ text (Alito, 2022, 52).

What is the alternative? Black market abortions? Well, yes.

There’s a black market for everything, like how there are “home remedies” and DIYs for everything. People looking to get an abortion and surrounded by red states will turn to shady people who offer such services. Are these people licensed physicians? Nope. Is it safe? You’re going to a stranger’s home for them to conduct a very complex procedure on you with very few to zero medical equipment. And let’s not even talk sterilization.

But desperate times call for desperate measures, right? This dude is making bank doing “abortions,” and now that demand will be up, prices will go up, but still cheaper than flying out to an abortion-legal state to get it done. A technique used to “kill” the fetus is to use a coat hanger. DO NOT DO THIS! Not only can you kill the fetus, but the mother can be severely injured: bleeding, infection from rusty or unclean materials, the possibility of not being able to have children later, an unsuccessful abortion and the baby is born sick or deformed, etc.

How do I know this is real? Because my abusive college boyfriend used to threaten me with it all the time. I will not write the ugly words he said, but I still do not use metal hangers. He was scared because my menstrual cycle was so irregular, but that’s normal for a young woman at that age. This caused me to panic on a monthly basis until, at the age of 19, a sophomore in college, I missed my period twice. The fear I had of telling him was like nothing I’d ever felt or will ever feel again.

I imagined me lying on some ratty bed somewhere, my legs spread open and shaking. My boyfriend knew a guy who knew a guy who knew this other guy, and now I was on his bed, a human growing in my stomach, and no one had even asked me if I wanted to keep her. Yes, her. I just know.

That didn’t happen. Not to say it doesn’t because it absolutely does. The “coat hanger trick,” they call it. Instead, my boyfriend beat the absolute shit out of me until my period started with a heavy flow the next day and I saw a clump of tissue on my pad. I flushed my baby down the toilet in a dirty, dormitory bathroom.

A forced miscarriage by way of assault to the stomach and pelvic region for hours on end is not the solution for a “free” abortion. There can be scar tissue left behind, other organs or areas of the body may be severely injured, and, like me, you may not be able to have children in the future. While this is unconfirmed by gynecologists I’ve seen and the fact that I spent four years being abused like this, I still may not be able to become pregnant of carry a baby to term. Jordan may be my only one and I lost her.

Let’s not forget those good ol’ DIYs, life hacks, and home remedies. We make face masks and scrubs and whatever. I will admit there are some pretty good life hacks, but not when it comes to inducing a miscarriage. This is played out in books and film, but it is not safe even though all the ingredients are edible. It’s like the Cinnamon Challenge back in the day. Remember that? Eating that much cinnamon at once is actually dangerous because it clings to the throat, causing a person to cough and have a hard time breathing. This can damage the throat and lungs. Smart!

It is always recommended to see a licensed professional before taking miscarriage into your own hands. You don’t know the consequences of whatever concoction you are taking. If it’s meant to “kill” a fetus, imagine what that “remedy” is doing to your stomach, stomach lining, intestines, and uterus. It may also be unsuccessful and damage the mother and/or fetus, possibly causing long-term problems. Cheap life hack, bad odds.

I only mentioned a couple ways that people will seek unsafe and illegal abortions once Roe v. Wade is overturned. The overarching problem is who will be doing this. People who cannot afford to go back and forth across state(s) lines and find a legal abortion clinic, get a consultation, go back for the procedure, and then maybe there’s at least one follow-up. Not to mention how backed up these clinics will be because they must care for the other half of the nation. In NYC, I can’t even get an appointment to change my IUD until, like, three months out.

The upper-middle class and the wealthy will always have access. These politicians will always have access. There will always be funds; there will always be favors. Overturning Roe v. Wade is a war on poverty. It is ensuring that low-income families and immigrants have the hardest time possible to get out of their socioeconomic class. When denying healthcare rights to certain people by way of making it illegal to receive care that would otherwise become a financial burden, legislators knowingly create “undue burden” for these people.

Rather than waste money in court suing and imprisoning people for taking care of their own bodies and lives, create a better sex education curriculum! Whoa, crazy talk. However, even contraceptives would be in the hot seat if this draft comes to fruition. Nevertheless, start sex education earlier. Make contraceptives for men and women accessible to teens and adults. Plan B should not be $55 dollars! If you are not going to give women choice of abortion, at least provide preventatives that are cheaper, accessible, knowledge on how to use them, and access to healthcare that can test for STDs and provide contraceptives at a reasonable price. Implement these principles across the state, not only in wealthier areas, but in places with people of color, immigrants, and low-income families. Remove that “undue burden” clause you hate so much, Justice Alito.

Overrunning of Foster Care

If abortions are illegal and all pregnancies have to be carried out, what will become of America’s foster care system? Obviously, there will be major uptick, especially infants born into low-income families. According to the Congressional Coalition of Adoption Institute, there are 424,000 children in foster care, 122,000 of whom are awaiting adoption in the US.

As reported by the CDC(CDCs Abortion Surveillance System, 2021), there were 629,898 induced abortions in 2019. That same year, the infant mortality rate was “5.6 deaths for every 1,000 live births” (CDC, Infant Mortality, 2021). Therefore, if the infant mortality rate did not change and everything was properly reported but there were zero abortions in 2019, about 3,500 infants would die and there would be about 626,000 newborns in America in addition to the infants already born in 2019.

How many of those infants were results of incest or rape? How many are forced pregnancies? How many now live in abusive homes? How many are given up to adoption, overflowing our foster care system? How many face mental or physical abnormalities due to genetics or maternal illness? How many infants now live in poverty and are malnourished?

How many mothers died giving birth? How many mothers will commit suicide within a year of having a baby? How many new mothers are teenagers? How many cannot afford to feed both them and their baby? How many mothers struggle to find childcare while going to work or trying to find work?

God, our mental health system would need mental health care! Oh wait, it already does.

Amendment 28 — In the Making

Justice Alito (2022) echoes Justice Scalia in his opinion of Planned Parenthood v. Casey: “It allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power” (61). Thus, it falls on the shoulders of women to protect pregnancy as being a right to privacy or at least not in the hands of the government. After not choosing Clinton (not even my first choice) over an oompa loompa (no offense to oompa loompas), I’m not sure if this country can back the women who will fight for Choice. Who is voting? American citizens, which includes men and people who disagree with Choice. While, yes, women can now run for office and vote and get the word out, is that enough? Why does all the common sense responsibility have to fall on women?

We know that everyone, including legislators and those who hold high office seats, will not be affected by the overturning of Roe and Casey. If you have money, you will get the abortion and healthcare that you want or need. Rather, the fight to choose is for the common US citizen to have fair access to this medical procedure, whether or not they are a victim of rape or incest, are rich or poor, live in rural or urban areas, or just want the abortion. Freedom to choose means not having to justify your choice to the government in order to get the procedure done. It means choosing what works best for you, thus the baby, in that moment of your life.

Freedom does not include finding the exact day of viability, as it depends on the fetus, not a chart. It is not about coming to a consensus about the exact point in which life begins, which Justice Alito (2022) likes to call “the quickening”. Fun fact.

It is about the separation of church and state and science. The freedom to choose gives people exactly that: freedom, autonomy over their own bodies. Autonomy is significant because what do we really have control over if not ourselves?

As the overruling of Casey leaves many shook about other rights not specified in the Constitution, including same-sex and interracial marriages, there is much at stake from here on out. Unless we make Amendment 28 to the Bill of Rights the right to private autonomy, abortion and many other freedoms will be up for grabs. Make it a priority. Get it on a ballot. Vote for the candidates, regardless of genders, who promise and will follow through with giving the American people the right to make their own decisions that affect themselves.

From someone who did not have autonomy because someone else took that choice away, I want it back, and I want it for everyone.

To Jordan, my baby who got away.

Watch John Oliver’s May 8, 2022 segment on abortion rights here. It’s truth in your face and also really funny.

References

CDCs abortion surveillance system FAQs. (2021 November 22). CDC. https://www.cdc.gov/reproductivehealth/data_stats/abortion.htm

Fact Sheets. n.d. Congressional Coalition of Adoption Institute. https://www.ccainstitute.org/resources/fact-sheets

Gerstein, J. & Ward, A. (2022 May 2). Supreme Court has voted to overturn abortion rights, draft opinion shows. Politico. https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473

Infant mortality. (2021 September 8). CDC. https://www.cdc.gov/reproductivehealth/maternalinfanthealth/infantmortality.htm#:~:text=In%202019%2C%20the%20infant%20mortality,the%20United%20States%2C%202019)

Last Week Tonight. (2022 May 9). Abortion Ruling: Last Week Tonight with John Oliver (HBO) [Video]. YouTube. https://www.youtube.com/watch?v=MalsOLSFvX0&t=10s

Legal Information Institute. (n.d.). 14th Amendment. Cornell Law School. https://www.law.cornell.edu/constitution/amendmentxiv

Luk, C. (2017 November 19). World, this is Jordan. Jordan, the world you’ll never see. Medium. https://phoenixluk.medium.com/world-this-is-jordan-jordan-the-world-youll-never-see-1a238fc79dba

Quimbee. (2015 August 19). Roe v. Wade case brief summary | Law case explained [Video]. YouTube. https://www.youtube.com/watch?v=GqXoQgJezCg

Quimbee. (2017 October 3). Planned Parenthood v. Casey Summary | quimbee.com [Video]. YouTube. https://www.youtube.com/watch?v=8x9DQiMsbUA

Wolfe, R. (2022 May 3). 13 states have passed so-called ‘trigger laws,’ bans designed to go into effect if Roe v. Wade is overturned. CNN. https://www.cnn.com/2022/05/03/us/state-abortion-trigger-laws-roe-v-wade-overturned/index.html

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