How Overturning Roe Will Impact More Than Just Abortions

Conservatives often attack reproductive freedom, but the American Humanist Association (AHA) was still outraged at the Supreme Court’s leaked draft majority opinion in Dobbs v. Jackson Women’s Health. In our statement on the May 2, 2022 draft opinion, AHA Executive Director Nadya Dutchin commented that it shows us that “religious extremism continues to undermine good government and advance a bleak and regressive future.”

On May 18, the AHA held a town hall to explore the draft decision, its implications, and the work needed to ensure our rights are protected. Staff Attorney Katherine McKerall opened the event by explaining that previability abortion—the removal of a fetus before it’s capable of surviving on its own outside the womb—is still currently legal. People seeking abortions should consult medical professionals—see the National Abortion Federation and Planned Parenthood for resources—and people wanting to help folks access needed care should donate to an abortion fund today. (We are using the word “people” instead of “women” because nonbinary and trans individuals who have uteruses can get pregnant too.)

Roe v. Wade (1973) ruled that the Constitution of the United States protects a pregnant person’s liberty to choose to have an abortion without excessive government restriction. Planned Parenthood v. Casey (1992) upheld that ruling, but altered the standard for analyzing limitations, crafting the undue burden standard for abortion restrictions. (Casey held that an abortion regulation places an “undue burden” on a person’s right to have an abortion if it puts a “substantial obstacle” in the path of a person seeking a previability abortion.)  The draft opinion for Dobbs v. Jackson Women’s Health noted that both Roe and Casey claim the right to an abortion is contained in the 14th Amendment’s protection of one’s right to “life, liberty, or property, without due process of the law,” therefore securing bodily autonomy. McKerall explained that although the Roe decision noted that the right to privacy could be found in the 1st, 4th, 5th, and 9th Amendments, the current Dobbs opinion tries to frame this in a negative way instead of recognizing that the right is so fundamental it appears in multiple places.

Since the right to an abortion is not an enumerated right in the Constitution, the draft opinion states it will only be recognized as a right under the 14th Amendment if it’s “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” By narrowing the right in question to specifically abortions—as opposed to the right to privacy, bodily autonomy, or the right to plan one’s family—the Court can argue it wasn’t contemplated by the 14th Amendment. When the amendment was ratified in 1868, women were considered legally subordinate to their husbands and didn’t have the right to vote. By this rationale, any rights that did not exist in 1868 cannot be justified by reference to the 14th Amendment. This threatens rulings that support our right to contraception (whether married or unmarried), to not be sterilized without consent, to control which medical procedures we undergo, to same-sex sexual contact, to trans rights, to inter-racial marriage, to gay marriage, to parental and family rights, to assisted suicide, etc. As Justice Anthony Kennedy wrote in Obergefell v. Hodges (2015):

The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.

The draft opinion’s use of “ordered liberty” means there are competing interests in this case between the person seeking the abortion and the fetus. Fetal personhood is a dangerous concept being promoted in some circles and would punish a person whose pregnancy ends whether or not it was their own doing, meaning a miscarriage could result in criminal prosecution for murder or manslaughter. In the Dobbs case, the opinion claims Mississippi’s statute banning abortions after fifteen weeks can be upheld because the state’s interest in protecting “the life of the unborn” is seen as passing the “rational basis test,” an extremely deferential test that upholds all but the most arbitrary and ill-conceived government policies.  The opinion also suggests that abortion should be decided at the ballot box by state governments, even though multiple Supreme Court cases state that fundamental rights shouldn’t be left up to the political majority.

During the AHA’s town hall, attendees who are adoptees voiced their frustration with the opinion’s comment on the need to increase the “domestic supply of infants” available for adoption as a reason to force people to complete pregnancies, ignoring the many challenges that often come with the process. Adoption can be very beneficial for people who want to be parents and can afford to invest the finances, time, and energy it takes. But many of these folks are being turned away based on the agency’s religious beliefs rather than the best interests of the children. To address this issue, the American Humanist Association and American Atheists are co-hosting the virtual 2022 Lobby Day on Wednesday, June 22 to advocate for the John Lewis Every Child Deserves a Family Act (S.1848/H.R. 3488). The Act would bar discrimination based on sex, sexual orientation, gender identity, religion (including nontheism), and marital status against families or children in taxpayer-funded child welfare services. It also provides extensive resources to states, tribes, and agencies to improve care and outcomes for LGBTQI+ foster children.

While the Supreme Court works on their final ruling and anti-abortion activists continue to try to ban abortions in all fifty states, there is much we can do to protect freedom of choice. Rallies and canvasing are happening across the country as activists online are spreading resources and countering misinformation. And we invite all to support the AHA’s work to protect reproductive freedom and bodily autonomy.

We must stay vocal and active throughout the year, not just during elections, to ensure candidates and constituents are aware of the science and intersectionality of reproductive justice. We must remind legislators in office that they serve nontheists as well as people of faith, so the religious beliefs of some shouldn’t dictate what all can do with their bodies. We must seek and support people for office who will confront sources of harmful political dominance like the filibuster, gerrymandering, and Citizens United. And we must uplift the individuals and organizations that are dedicated to the seemingly endless struggle to ensure justice for all.