The End of Roe and the End of the Road

The writing is on the wall (and a draft Supreme Court opinion):  Roe v. Wade will soon gasp its last breath at the hands of Supreme Court Justice Samuel Alito and his co-Taliban wannabes.  The last fifty years of women having a constitutionally protected right to make decisions about their own bodies will be history.

According to Alito, Roe must be overturned because it is an ill-conceived and deeply flawed decision that invented the right of privacy, a right not specifically spelled out in the Constitution. He also dismisses Planned Parenthood v. Casey that holds the right to an abortion is found within the general concept of “liberty.”

To overrule these cases Alito tramples over the judicial doctrine of “stare decisis,” whose translation means that what’s been decided should stay decided.  Its rationale is that decided cases, also known as precedents, provide stability in society, allowing citizens to arrange their lives in reliance on the law. 

But, no problem.  Alito informs us that stare decisis is “not an inexorable command,” by which he means we can do whatever we feel like.   Now, they feel like “correcting” Roe and Casey.

The big question now is whether the Supreme Court will revisit and “correct” other intimate personal decisions that previous courts have upheld. Alito’s draft says that “our decision concerns the constitutional right to abortion and no other right,” but that’s not really believable considering his record and the implications of this ruling. The three most at risk include: Griswold v. Connecticut, which protects contraception access; Loving v. Virginia, which held laws against interracial marriage were unconstitutional; and Obergefell v. Hodges, which legalized same-sex marriage nationwide.

I’d be willing to bet that the dominos start toppling in Roe‘s wake.  Anyone who’s been been awake at some point during the last 50 years knows that the Republican Party has made overturning Roe among its prime directives.  But, it’s just not abortions they oppose.  They don’t like gay sex, same sex marriage, interracial marriage, or even contraception. They justify their dislike on the concept of originalism, i.e., if it’s not specifically mentioned in the Constitution, drafted in 1787 (or Bill of Rights 1791), a right doesn’t exist.  They will re-interpret cases to roll back, in effect, the period from 1965, when Griswold was decided, to the present, during which we’ve seen an expansion of personal rights.  Alito’s statement that this won’t effect other rights is simply “not true.”  The Alito wrecking crew will, surely, usher in a period of contraction and elimination of those personal rights we’ve arranged our lives around. 

This means that Roe’s loss is not just a woman’s issue, but a societal issue.  People have been able to love and marry as they want.  No matter your sexual orientation, you can be you and contribute as you see fit.  Society as a whole has benefitted from women and men being able to control their futures, to decide when bringing children in the world is a right for them.  

But the times they are a’changing.  Republicans (and white supremacists, if there’s a difference) have been saying that American women need to have more babies to counteract the high fertility rate and influx of immigrants.  You may have heard this and thought they meant voluntarily, but now it seems that a tyrannical minority that includes the Court intend for women to produce those babies, whether they like it or not.  

I first heard the “more babies” argument in 2013 when Texas Republican, Barry Smitherman, shared with an audience his plan for getting more non-minority babies. Young women, he explained, need to use college as hunting grounds to find husbands and, then, soon after graduation, put any career plans on hold and get started with baby-making. “We have to encourage the production of more children,” Smitherman exhorted, as if he were referring to a widget factory. “Young people: first, get married, and then begin having children.”  He decried the fact that educated white women have a collective fertility rate of only 1.6 when we need 2.1 for mere replacement.  He and his wife, he boasted, did their part with an impressive brood of FOUR children.

But the world has changed since Smitherman girded his loins and got into production with sweet Maryanne. For most women, the whole point of attending college is to have careers and get started with them, or continue on with post-graduate studies in law, medicine, business, or whatever.  They know that starting a family right away will derail them from these goals.  

I wonder whether parents want to pay for a daughter’s college plan that centers on hooking a breeding partner and start churning out babies.  And what student would take out loans when repayments would come due at the same time as bills for diapers and formula?  Smitherman  didn’t utter the words “barefoot and pregnant,” but his plan sounds like one way of diminishing the presence of women in colleges, boardrooms, courtrooms, and operating rooms.

If you are cool with Smitherman’s marriage-and-baby production plan, no need to read on.  But other men must consider the effect on their futures when engaging in sex and possibly fathering a child.  Without marriage, the father will still be responsible for monthly child support payments for the first 18 years of the child’s life.   There’s no escape clause from this obligation, enforced by the Attorney General’s office.  Failure to pay can result in the garnishment of wages, suspension of drivers’ and professional licenses and denial of a passport.  The baby father can also have liens filed on properties, bank accounts, and other assets, and, ultimately, face jail time and criminal fines.  

And don’t think we can preserve the protections of Roe and other rights by federal statute.  Any such bills would be blocked by the Senate filibuster rule, a disappointing feature of our current government that could be easily changed if there weren’t Democratic hold-outs.  (Thanks, Joe Manchin.)

Those who would block any such bills are Republicans who don’t care that 70% of the American public do not want Roe overturned or that approximately the same proportion believe an abortion decision should be made by the woman and her doctor.  The percentages of support are even higher when the woman’s physical health is endangered or when pregnancies are caused by rape or incest. Despite this level of support, these senators could care less about the will of the people. 

Tragically, ours is a country where Republican-dominated state legislatures and a U.S. Senate controlled, in effect, by Republicans are poised to drag us back to the past, to eliminate the ability of women, men, and couples to make their own choices.

Equally tragic, ours is a country whose government, controlled by the aforementioned Republicans, doesn’t believe in any safety net to provide for the needs of children after birth, counting on families and single mothers to raise them whatever their circumstances.

Ours is a country where personal decisions that should be made in bedrooms and doctors’ offices will soon be dictated by politicians and Catholic jurists who do not represent the interests of the majority of Americans.  

What to do? Normally, I’d say the recipe for overcoming this situation would be to vote and remove from office those elected officials who don’t represent the majority’s preferences.  I’d encourage campaign contributions and volunteer work to elect candidates who do care about choice and real, live children. 

But, our voting districts are gerrymandered.  Our votes don’t make any difference when districts are drawn by those in power with the intent to stay in power.  

And then, there’s the U.S. Senate, hopelessly unrepresentative of the majority of this country.  That is the place where bills supported by the majority of Americans go to die and reactionary judges get approved.  Since every state has two senators, whatever their size, rural interests have a disproportionate clout.   Consider that Wyoming has 262,719 registered voters, while California has over 22 million, thereby institutionalizing a preference for rural interests over the majority urban interests.  The chances of changing that?  My educated guess would be…zero. 

I was beginning to have doubts about our system with Hillary Clinton’s loss to Donald Trump, but now, with the demise of Roe, and all the other rights that will surely be repudiated by Alito and his Tali-band, I’ve lost my hope for this country.   I’ve lost my hope in U.S. democracy.  You can’t have a healthy democracy when its citizens are being stripped of their rights.  The criminalizing of abortions seems to be a leading indicator of democratic decline.

I’d like to find some nugget of optimism, but, sadly, we stand weaponless and surrounded by the forces of misogyny, ignorance, corruption, autocracy, and greed.  

Sorry, Mr. Franklin, it was a good republic, but it was too hard to keep.

About nowandthenadays

Observer of life who writes about Austin, women's issues, history, and politics. I worked in the Texas Legislature for 9 years, moved to the State Comptroller's Office where I worked for 9 years, then went to work as an Assistant Attorney General after graduating from UT Law, for more than 20 years. Since retirement in May, 2013, I've identified myself as a writer, a caretaker, widow, grandmother, pandemic survivor, and finder of true love.
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4 Responses to The End of Roe and the End of the Road

  1. Chris Monzingo says:



  2. Polly McDonald says:

    I agree with you, sadly. I recall the day the Supreme Court issued the decision in Roe v. Wade. It was before I went to law school, but I understood what a significant step it was. No woman who went to college in the 60s and 70s could be unaware of the importance of access to effective birth control and, when necessary, safe abortion. I’m profoundly despondent over the state of our nation.


    • I, too, remember Roe coming out. I was in college and like you, totally aware of its significance. When the ERA passed Congress and went to the states, I was excited about the progress we were making on women’s issues. I was working at the Capitol and remember the flood of “pink ladies” showing up and arguing against passage because men and women would have to use the same bathrooms if the amendment passed!! It was sad when Texas and enough other states didn’t pass the amendment and make it part of our Constitution, but sadder days lie ahead, I’m afraid.



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