Leaked abortion ruling has elements of class conflict

The leak of a draft opinion by Justice Samuel Alito, for confidential consideration by the other members of the Supreme Court, has set off a fire storm of reactions across the nation. The following observations are offered in an effort to facilitate a higher level of discourse than some I have heard.

Roe v. Wade has been the law of this land since Jan. 22, 1973. The court’s decision was written by Justice Harry Blackmun of Minnesota, previously counsel to the Mayo Clinic. It was a 7-2 decision, with dissents filed by Justices Byron White and William Rehnquist.

What was new was that the court struck down all state statutes that prohibited abortions during the first three months of pregnancy, thereby moving control of access to abortion to the federal government. The Texas law which was at stake had language dating back to 1859. The rise of state statutes outlawing abortion coincided with the rise of the American Medical Association, which was interested, among other things, with staking out territory for its members, mostly white males.

The basis for a claim to jurisdiction in Roe v. Wade was laid in the decision in Griswold v. Connecticut (1965) which held that a person’s right of privacy (found in the penumbra of the explicit civil rights) prevented the states from outlawing the prescription of birth control devices to married couples. Therefore, Connecticut’s laws barring anyone from providing birth control information to married couples was held unconstitutional in a 7-2 decision establishing the right to privacy in intimate relations. Overruling of Roe v. Wade would require overruling Griswold v. Connecticut.

Archibald Cox, former solicitor general and a distinguished legal scholar, suggested in his 1987 book that the Supreme Court (14 years earlier) in Roe might have missed a jurisdictional analysis that appealed to him: namely, that a case might have been made with respect to the importance of a woman’s freedom. Cox wrote “at least the seed of the ideal of equal freedom and equal opportunity for women was implicit from the beginning” of our constitutional experiment. It had been growing in much the same way as the ideal of equal rights for individuals of color.

Any law, Cox argued, that requires a women who has conceived to carry the unborn to birth denies her equal liberty and opportunity with men. The near-unanimous passage of such laws without compelling justification as well as the wide-scale acceptance of those same laws rested upon a bedrock indifference of those times to the resulting inequalities in liberties and opportunities for women. Many of the formally religious persons of the time were led to accept, or at least encouraged to accept, the notion that such inequalities were divinely inspired. That the same inequalities fell upon those who did not have a vote in state or federal elections until the 1920s (at the earliest) should not go unnoticed.

Elements of class warfare are contained in this attempt to return to one of the most questionable laws of the 19th century. As a student at an expensive private university in the 1960s, I witnessed situations in which some very well-to-do coeds took “skiing” vacations to Europe and returned no longer pregnant to go about their studies. Meanwhile, scholarship students who found themselves “in a family way” dropped out of school and chose between a home for unwed mothers and a quick wedding.

This draft opinion would decree a return to an old variation of the Golden Rule: Those who have the gold make the rules. The proposed is an example of the Republican fashion of imposing “penalties” on those less able to pay. It fits neatly with the GOP campaign to suppress voting rights among the poor and to grant election victories to losers. Both are non-democratic; abortions only for the well-to-do fits neatly in that category.

Bill Wines of Marion is a retired lawyer who taught at universities for 38 years.