In 1973, the United States Supreme Court found constitutional protection for a woman’s right to choose to have an abortion, her autonomous personhood deserving to be free from excessive governmental restriction.
Some 49 years later, that same illustrious body, albeit of different human constitution, has changed its mind.
No such protection should have been granted, it found Friday, meaning that the states are now free to enact their own regulations of the practice. A dozen or so of them already have restrictive abortion laws on the books that will be triggered by this decision. Others will no doubt enact such laws. And conversely, many, including Illinois, either have moved or will now move to enshrine and protect the legality of abortion. The future will be a patchwork of resentment and confusion, a further threat to the unity of our republic.
We lament Friday’s decision on the grounds that it diminishes freedom and choice, and we do so as a consequence of our long-standing belief that government should not interfere with our individual bodies. We recognize that many Americans of religious faith especially oppose abortion on the grounds that a fetus represents a separate form of human life, a soul, that deserves, on moral grounds, to be nurtured and carried to term. This always has been a difficult issue, and many reasonable Americans become uncomfortable with abortion once the fetus reaches the point of viability outside its mother’s womb, a moment that has shifted over time and remains subject to debate and opinion.
But Roe v. Wade required no obligation to have an abortion at any point in a pregnancy. It merely offered the freedom to make one’s own choice.
Laws, even rights, are subject to practical considerations. And if there is one clear truth that emerges in the data surrounding this debate, it is that women seeking an abortion will continue to seek one even in the wake of an abandoned Roe v. Wade.
Those who live in states where abortion becomes illegal will, in most cases, strive to travel to places where the practice is safe and legal and in the hands of qualified practitioners, putting significant financial burdens on those women and possibly delaying their abortion to a point where it becomes more invasive. Those who oppose abortion will try and enact state laws to prevent such travel, potentially an egregious restriction on a fundamental American right to move around the nation at will.
Some level of chaos will ensue, probably for a long time.
And, as with so much else, the burden will fall disproportionately on those who are young, vulnerable and without adequate financial resources.
This is why most Americans supported Roe, even in many cases over personal, moral objections to abortion. They have no stomach for criminal penalties, let alone incarceration, for a pregnant woman seeking an abortion. It is why Roe has become “settled law,” as many potential Supreme Court justices have noted, seemingly disingenuously now, during their confirmation hearings.
The originalist case against Roe as a perversion of the right to privacy has long been articulated. We have had, of course, an advance preview of this argument, presumably thanks to a furious Supreme Court staffer who thought that leaking a draft of the decision, a draft later confirmed as genuine by the court, would cause sufficient of a furor that the court would perhaps modify its decision.
We lamented that leak even though its logic was palpable: The Supreme Court, as a crucial guardian of shared democracy and defense against government tyranny, cannot act entirely in isolation from the American people on whose trust it relies. And as it does its thing, it cannot abandon simple practicality.
That’s why there has been no groundswell of opinion for the overturning of Roe. This moment arrives merely because certain justices saw an opportunity derived from the particular composition of the court at this specific moment. In some chambers, the 1973 decision long has rankled, and been seen as illogical bad law.
Carpe diem, it thus was decided.
But there is a price to be paid for that stubbornness in our deeply divided nation. Friday’s news won’t end abortion in America, or even in the South, but it will create a chaotic quilt of prohibition and encouragement, political posturing and forced religiosity. And despite all the caring people who will work for good, the newly created landscape will be filled with charlatans, mules, exploiters and profiteers.
This court, in its learned, real-world wisdom, should have protected all American women from what surely now lies ahead.
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