“We had choices then.” – June
“Now you have respect. You have protection. You can fulfill your biological destinies in peace.” – Fred
“Biological destiny?” – June
“Children. What else is there to live for?” – Fred
— From the Hulu adaptation of Margaret Atwood’s “The Handmaid’s Tale”
Welcome to Gilead.
On our first day in the new world order, women now have fewer rights than a corpse and the barrier that has kept the United States of America from becoming a theocracy has been badly damaged.
It is worthwhile to note that nothing can legally be done to a corpse without express antemortem permission. For example, organs cannot be taken from a dead body unless that person gave written consent before their death. It does not matter if those organs could save a dozen lives — bodily autonomy is considered sacrosanct. Unless, now it seems, you are a woman. (For our purposes, we use “woman” to describe anyone capable of giving birth, acknowledging that not everyone who can bear children identifies as female and not everyone who identifies as female can bear children.)
The Supreme Court and the conservative ideologues behind the court’s majority seem to have mistaken Atwood’s dystopian fiction for a how-to guide instead of the cautionary tale and critique on women’s (lack of) rights that it was meant to be. Because in her novel, it started much like this — with a vocal and increasingly powerful minority chipping away at everyone else’s rights. It started slow, much like it is now — installing religious zealots in positions of power, then taking away the right to abortion, then requiring a husband’s permission to access birth control, then ousting women and LGBTQ people from the workplace, then … until women were nothing more than human incubators and only straight men had any autonomy (because LGBTQ+ individuals were executed).
In his ruling opinion, Justice Samuel Alito wrote, “Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided. … Roe and Casey are overruled.”
Given the rulings this Supreme Court has already made, it is not a slippery slope to wonder if Griswold v. Connecticut (right to privacy and access to contraception), Lawrence v. Texas (decriminalized “homosexual acts”) and Obergefell v. Hodges (right for same-sex couples to marry) are next on the chopping block. Justice Clarence Thomas, in his concurring opinion, wrote that while Alito’s opinion states the ruling in Dobbs v. Jackson Women’s Health should not be seen as taking issue with Grisold, Lawrence or Obergefell, “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous.’ ”
Notably, Thomas did not suggest the court revisit Loving v. Virginia — which was decided in 1967 on both the Fourteenth Amendment’s Due Process clause (right to privacy, as established in Griswold in 1965) and its Equal Protections clause — that legalized interracial marriage. (Thomas, a Black man, is married to a white woman.)
Of course, we would not wish to see Loving overturned, and that case was decided at least partially on grounds of discrimination. But Loving was also decided on the tenet that marriage is a personal choice that should not be subject to state interference — an un-enumerated right not explicitly written in the Constitution but understood to be fundamental. In that case, Chief Justice Earl Warren wrote, “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.” We therefore found it worth nothing that Thomas specifically omitted a case that could directly impact him when listing cases decided on the Fourteenth Amendment that should be reviewed.
With this ruling in place, abortion becomes immediately illegal in West Virginia. Without the protection of Roe v. Wade, state code 61-2-8, written in 1842, once again goes into effect, punishing anyone who aids in abortion with three to 10 years in prison. There is no exception for rape or incest, though the law does say there is no punishment for acting in “good faith” to save the life of the mother or child. To make it worse, in 2018, West Virginia voters narrowly approved Amendment One, which simply states “Nothing in this [state] Constitution secures or protects a right to abortion or requires the funding of abortion.”
Keep an eye on the numbers over the next couple years, West Virginia. That nice new DHHR dashboard is perfect for showcasing the number of unwanted-but-forced-to-be-born children who will flood the foster system. The number of families seeking social services, such as WIC, SNAP and other welfare programs, is sure to skyrocket. And if we pay careful attention, we’re likely to see a “mysterious” uptick in deaths of young women of childbearing age. One, because childbirth is far more deadly than legal abortions, and two, because abortions won’t stop now that they’re illegal. The well-off and well-connected will always have access to safe abortions. But for everyone else, they just become significantly more dangerous.
