Image taken by Lauren Moustakas at the Supreme Court after the Dobbs draft was leaked
By Lauren Moustakas, Micah Place/Program Director, G.L.O.B.A.L. Justice
June 2022
Much can be said and has been said about the U.S. Supreme Court’s decision in Dobbs. v. Jackson Women’s Health Organization which overturned Roe v. Wade and Planned Parenthood v. Casey. This decision, which has been anticipated by both pro-choice and pro-life advocates for weeks (thanks to a leaked draft opinion), lays out clearly its reasoning in finding that there is not a constitutional right to abortion and therefore the issue of abortion is left to the states. As a woman, human rights advocate, and attorney, I celebrate the Court’s decision and hope that this decision signals a shift in our country in its commitment to protecting human rights and the most vulnerable. In Overturning Roe and Casey, the Supreme Court has retained its legitimacy, promoted democracy, and allowed for greater protection of the human rights of the most vulnerable.
My husband and I were living in the Washington D.C. area when the draft opinion was leaked and we were at the Supreme Court to witness the resulting protests that night and many days afterwards. While the issue of abortion and the killing of human life on demand is one that has always deeply affected me, what has troubled me the most regarding the response to the leaked draft and decision is the misunderstanding and lack of respect for our country’s constitution, threats to democracy, and a clear misunderstanding of women and human rights.
Misunderstanding of the Role of the Supreme Court in our Government
Throughout these protests and the fallout after the Supreme Court rendered its decision, I have heard abortion advocates state that the Supreme Court and Justices who joined the majority opinion are not representing the people or the majority belief of our nation. This statement shows a clear lack of understanding of our system of government and the role of the Supreme Court. The Justices and the Supreme Court do not represent the people but are appointed by the President and confirmed by the Senate to uphold the Constitution of the United States. The Justices and their decisions are not based and should not be based on popular opinion. The Supreme Court is not the Court of public opinion. Instead it is made up of Justices who were appointed and confirmed by our elected representatives to uphold and defend the Constitution. If it were otherwise our Constitution and Constitutional rights would quickly diminish and sway depending on the popular opinion of the day. A reason our Constitution and Constitutional Rights have stood the test of time is due to a commitment to the Constitution rather than public or personal opinion.
By maintaining the integrity of the leaked draft opinion, the Court retained its legitimacy rather than morphing into a court of public opinion. If the Court had altered its opinion because of the outlash following the leak of the draft opinion, the Court’s legitimacy would have been undermined. If the Court can be influenced by protests, our system of government as we now know it is over. Our elected representatives are who we must expect to represent our beliefs and interests rather than Supreme Court Justices.
Furthering Democracy and the Democratic Process
By overturning Roe and Casey, returning the question of abortion to the states, the Supreme Court has strengthened our democratic process. Roe and Casey overtook the democratic process in deciding the issue of abortion and abortion rights. Individuals now can contact their representatives on their position regarding abortion and these representatives can vote according to their constituents beliefs regarding abortion. Demanding the Supreme Court recognize a constitutional right to abortion and limiting the ability for the people to determine what kind of society they want to live in is undemocratic. It is also inconsistent to celebrate State Court’s granting an injunction regarding abortion limitations while accusing the Supreme Court of overreaching their constitutional powers. For instance, Louisianna’s abortion restrictions were passed by the people in the form of a Constitutional Amendment.
Another statement I heard repeatedly while at the Supreme Court and in the aftermath of the Court’s decision is that the majority of our country supports abortion on demand without any restrictions. These same individuals are expressing outrage that the citizens of individual states will be able to determine the boundaries of abortion access within a state’s territory. These two statements are inconsistent. If the majority in our country truly favor abortion on demand without any restrictions, then this will be reflected in the laws that are passed by individual states. The Supreme Court’s decision in of itself does not limit abortion access. While this decision allows states to decide the limitations of abortion, it also allows for greater expansion of abortion access. For instance, even before the Dobbs decision was released, California was in the process of passing legislation that would decriminalize the killing of a child up to 28 days after the child was born - in effect allowing women or those who have the mother’s consent to kill a child without any legal consequences.
In contrast to the Supreme Court, pro-choice advocates have been calling for measures that would undermine our democracy and Constitution. In the midst of investigations into former President Trump’s activities regarding the 2020 election and the January 6th events at the Capital, the same elected officials and appointed members of our government who are accusing these individuals of undermining democracy are themselves encouraging others to act in a way that undermines our democracy. Multiple elected officials, including President Biden, have called into question the legitimacy of the Court and our Constitution even calling for the impeachment of Supreme Court Justices. Others are calling for court packing plans to “balance” the “radical facist” Supreme Court Justices that made up the majority opinion (ignoring the fact that Justice Thomas is African American and Justice Barrett is a woman). Multiple U.S. Representatives and local elected officials have encouraged defiance of laws that are or will be enacted in the states regarding abortion. Prosecutors and other state attorneys have publicly stated that they will not enforce laws restricting abortion in their particular state. Each of these individuals, elected or appointed, swear to uphold the Constitution of the United States before beginning their respective positions. Refusing to uphold the law of the state they serve or the Constitution undermines democracy as well as the legitimacy of the rule of law that makes our country’s system of government possible. Each of these actions also fuels misinformation regarding our system of government. Even when elected or appointed officials disagree with an outcome on a personal level, it is unacceptable to act contrary to their commitment to uphold the Constitution of the United States and our system of government. Those accusing the Court of undermining democracy are themselves undermining our democratic principles and must be held accountable.
The Supreme Court’s Decision Allows for a Societal Return to Protecting Women and Human Rights
Pro-choice advocates have long claimed that abortion is a fundamental human right disregarding provisions of the Universal Declaration of Human Rights that affirm a right to life and personhood before the law. Article 3 of the Declaration of Human rights states that, “everyone has the right to life, liberty, and security of person.” Under Article 6, “everyone has the right to recognition everywhere as a person before the law.” Thus, under the fundamental human rights document, every person has a right to life and every person has the right to be recognized as a person before the law. Even the Court in Casey recognized that an unborn child is a human being when stating that a woman’s interest in having an abortion must be balanced against the state’s interest in preserving the life of the unborn child. By returning the question of when and how an abortion may take place to the states, the Court’s decision allows for society to determine what kind of society they want to live in: one that values and protects human life or one that dehumanizes the most vulnerable in the name of choice.
Reproductive “rights” have been used for centuries to target marginalized groups and women to control who gets to become a parent and who deserves to live. For instance, this ideology has been used as a defense to forcibly sterilize those who are deemed “unfit” for reproduction such as the mentally disabled or minority groups. The forced sterilization of minority women or others deemed unfit to be parents was supported by popular opinion at the time and was most common in progressive states such as California. In fact, the Supreme Court’s decision allowing for the forced sterilization of a woman deemed mentally unfit to reproduce, Buck v. Bell, has never been overturned and remains part of our Constitutional case law. Such a decision should also be reviewed by the Supreme Court and is a thorn in our nation’s human rights record just as Roe and Casey were.
Abortion itself has been used from the beginning to target minority women and to diminish minority populations here in the United States. Margaret Sanger, who was an active member of the United States Eugenics movement (which also inspired Hitler’s eugenics program), was purposeful in the placement of abortion clinics near minority populations to control their population. The fact that pro-abortion advocates state that minority women and girls will suffer the most without abortion is evidence that this tactic has succeeded.
Abortion has also been used to target women and girls of all ethnicities within and outside of the United States. Sex selection based abortions are not prohibited in most states by law. For instance, in California, a state that promotes gender equality, gender based abortions are regularly advertised for national and international communities. San Francisco actually “banned” sex-selection abortion bans. International communities that value men over women will in fact travel to states like California in order to obtain an abortion and ensure that a female infant is not born. If abortion advocates were serious about protecting women and girls, they would advocate for laws and restrictions on abortion that prevents girls from being the targets of abortion. In other nations we work to address the issue of girl killing - infanticide. Here, it is celebrated and advocated for in the name of choice.
The Supreme Court’s decision is important because it also allows for citizens to decide policies that protect vulnerable populations such as the disabled. Our culture and others have celebrated the “eradication” of symptoms such as down syndrome due to the high abortion rate of babies diagnosed with this condition in our country and around the world. An estimated 60-90% of babies diagnosed with Down Syndrome are aborted in the United States alone. By calling for abortion without restriction, we are creating a society that can determine what kind of humans are worth being born and which do not deserve life. The Supreme Court’s decision allows for policy decisions to be made to protect vulnerable groups such as the disabled and to restore a culture that values all life - not just life that is determined to be valuable by some.
Abortion itself and the procedures used to perform an abortion also kill and have longterm effects for women’s health such as an increased risk of developing breast cancer and depression. If abortion access was really about women’s choice and about women’s health, abortion advocates would press for accountability for abortion providers who harm women. Women and girls have the right to know the health implications and risks of an abortion.
Outside of the United States women are being oppressed and their rights are diminished by the government or government like entities. Some have compared the Supreme Court to the Taliban, equating the return of the abortion access question to the states with the removal of women from society by the Taliban. Under the Taliban, women are not able to go to school, are required to wear a burqa in public, and are not allowed to go out in public even with a burqa unless they are accompanied by a suitable male escort. Afghan women lost their jobs when the Taliban took over Afghanistan and are isolated in their homes or worse. Women have been abducted or killed by the Taliban for protesting restrictions on their right to education or for trying to educate women and girls privately. Women and young girls in Afghanistan have been taken by Taliban fighters as “sex-slaves” guised as additional wives. As someone who has worked with Afghans trying to escape the Taliban, I believe this comparison is outrageous and makes a mockery of women’s rights and the unthinkable position Afghan women are in under Taliban rule.
These harms of abortion and reproductive rights on human and women’s rights are why returning the question of how and when an abortion may occur to the states and the democratic process is important and restores rather than takes rights away from women and girls. Women of all nationalities and abilities deserve the right to be born, to hold abortion providers accountable for harm to women’s health, and to be informed of the health risks of an abortion. As a society, our treatment of women and all life reflects who we are as a nation and dictates our credibility and work upholding human rights around the world.
Conclusion
Our Supreme Court’s legitimacy, the Constitution, and our system of government has been called into question by individuals who do not understand or do not respect our system of government because they are opposed to the outcome of the Dobbs decision. Abortion advocates have not been able to point to a constitutional provision that provides for a constitutionally provided right to abortion. The majority of leading experts on the Constitution appointed to protect the Constitution on the Supreme Court rejected the reasoning and judicial activism of Roe and Casey. It is tempting to claim a constitutional right that is not written into the constitution, or to advocate for the overthrow of a system that does not conform to your personal beliefs. However, to preserve our rights and system of government our elected officials and citizens must respect the Constitution and decisions made regarding the Constitution by those appointed and confirmed to uphold our Constitution.
Time will tell the true result of the Supreme Court’s decision on the right to life and abortion access in the United States. While some states have taken action to restrict abortion, many are working to expand it and protect women who travel to receive an abortion. The Supreme Court’s decision in of itself has neither diminished nor expanded access to abortion but has provided the citizens of each state the opportunity to participate in the democratic process. We now have the responsibility to determine for ourselves what kind of society we want to live in - one that protects the most vulnerable or one that disregards life in the name of choice.
The views and opinions expressed are those of the author(s) and do not imply endorsement by G.L.O.B.A.L. Justice. We are a faith-based, nonpartisan organization that seeks to extend the conversation about justice with a posture of dignity and respect.