The Leaked Opinion of Ruling Against Reproductive Freedom

by Vijaya Chandrasoma

The radical right’s aspirations for control of the US Supreme Court since the 1970s, and the ongoing wet dream of Republican leader of the Senate, Mitch McConnell, are both now a fait accompli. The radical right will have control of the Court for the next few decades, considering the ages of three Justices with right wing values appointed by a treasonous president. And a fourth Republican Justice, Clarence Thomas, whose wife, Ginny Thomas, was actively and seditiously involved in the January 6 insurrection in the effort to violently overturn the November 2020 presidential election.

According to Article II of the Constitution, Justices to the Supreme Court are nominated by the sitting president, confirmed by the Senate. The framers of the Constitution envisaged a Court, representative of the will of a majority of the American people, with Justices appointed and confirmed by presidents who enjoyed the support of the majority of Americans.

Not so, today. Due to the archaic system of the Electoral College, added to the completely lopsided system of representation in the Senate, the current Supreme Court represents a minority of American voters. Two Presidents, Bush Jr. and Donald Trump, who both lost the popular vote to Al Gore (2000 – by 500,000 votes) and Hillary Clinton (2016 – by 3 million+ votes), respectively, have been responsible for the nomination of four Justices, with meagre legal qualifications but with a sycophantic commitment to the values of those espoused by the extreme right, Evangelical wing of today’s Republican Party. The Court now enjoys, and will enjoy for generations to come, a massive conservative 6/3 majority, composed of the Chief Justice and five Justices who do not represent the will of the majority of the American people.

The right to reproductive freedom has the overwhelming support of 80% of Americans, Republicans, Democrats and Independents. The 1973 Supreme Court ruling on Roe v. Wade, reaffirmed on numerous occasions in the past five decades, has been considered to be a super precedent, the law of the land. A ruling which serves to empower women with the nationwide right of choice for an abortion with no governmental restrictions.

Gun control regulations also have the support of 90% of Americans, but will never see the light of day because of the intransigence of a Republican Party venally ensconced in the deep pockets of the National Rifle Association. The complete lack of such regulations saw yet another racially motivated mass murder recently. An 18-year old white supremacist, armed to the teeth with military-style weaponry, killed 10 African Americans and injured three more at a supermarket, targeting a predominantly black community in Buffalo, NY.

The Supreme Court has already started to flex its newfound muscles with a leaked draft opinion to overturn Roe v. Wade, a ruling which has been unsuccessfully challenged by the Republican Party over the last 50 years. The current opinion is designed to leave the interpretation of abortion laws to individual states. 28 states controlled by the Republican Party will outlaw abortion immediately after the ruling is ratified. The remaining states, mainly in coastal areas controlled by Democrats, will retain their existing laws permitting abortion under varying circumstances. It is estimated that 36 American million women will lose their right to choose under this ruling.

Strangely, Republican Justices, Alito, Gorsuch, Kavanaugh and Barrett, who, like all other Justices underwent a scrutiny of their impartiality in the Senate before confirmation, averred, under oath, that they considered Roe v. Wade an established precedent, and had no intention of overturning it. A complete falsehood, possibly tantamount to perjury, as is evinced by their endorsement of the current leaked opinion.

Outlawing legal abortion will not do away with unwanted pregnancies. Pregnant women financially able to travel interstate will still be able to choose to get an abortion in a state that honours reproductive freedom. However, those who are too poor to so travel, women from rural states in the Republican controlled heartland of America, usually blacks and minorities, will be compelled to resort to illegal, unhygienic, back alley abortions conducted in conditions with enormous risks to themselves and to the unborn foetus.

Extracts from the leaked draft resolution authored by Alito:

“We hold that Roe and Casey (another defeated challenge by the right to overturn abortion rights) must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives”.

The Constitution makes no reference to abortion, and no such right is implicitly protected by any Constitutional provision. Alito counters that “although some rights are not mentioned in the Constitution, such rights must be deeply rooted in this Nation’s history and traditions and implicit in the concept of ordered liberty.”

Alito and his radical Justices choose to ignore the fact that the words “deeply rooted in the Nation’s history and traditions” referred to such traditions prevalent during an era in, and context of, the ratification of the Constitution in 1788. Many other freedoms, not referenced in the Constitution, in fact, freedoms specifically denied by it, have, in the past two+ centuries, become deeply rooted in the nation’s history and traditions, and enacted into the nation’s laws. Laws like all women’s right to vote, Blacks to have their humanity increased from 3/5 to 1.0 of a man, civil rights and Jim Crow laws to end segregation, voting rights, the rights of the LGBTQ community and gay marriage are such deeply rooted freedoms which are now the law of the land.

If the Supreme Court is successful in overturning women’s rights of reproductive freedom, there is no doubt that they will next be encouraged to overturn the hard fought freedoms referred to above, especially voting rights, the rights of the LGBTQ community and gay marriage, freedoms which are being bitterly contested by the current Evangelical Republican Party.

The main argument about abortion is when a foetus becomes a human being. Scientifically, up to four weeks, an embryo is just a complex of cellular elements. The brain, spinal cord and heart begin to develop around the fifth week; a foetal heartbeat may be detected by vaginal ultrasound after 5-6 weeks of gestation, which US Christians regard as “ensoulment”, a concept deeply rooted in religion and faith. However, the brainstem of the foetus is fully developed around the 28^h week, when doctors are able to monitor foetal brain activity.

All the great religions practiced in the world today are Pro Life, the only difference being the reasons and the stage of the pregnancy for justification of its termination. The Bible is often quoted by the Evangelical right as evidence to justify abortion being the equivalent to murder (thou shalt not kill), although the Good Book makes absolutely no reference to abortion.

According to the Bible, Genesis 2.7, “Then the Lord God formed man of the dust of the ground, and breathed into his nostrils the breath of life; and man became a living being”. In fact, one Mosaic law contradicts that the Bible is anti-abortion, clearly stating that miscarriage (which abortion also is, miscarriage by choice), does not involve the death of a human being. Judaism considers the foetus to be part of a woman’s body until the baby is born.

Catholics also believe that life begins at conception. It also believes that salvation and entry into heaven hinges on the sacrament of baptism. This is a central tenet of the Church. However, the Church conducts baptism only after the child is born. It doesn’t baptise an unborn or stillborn foetus. So a foetus which does not make it to childbirth for any number of tragic reasons is presumably denied salvation and entry into heaven.

Though Hinduism and Buddhism have clear Pro Life positions on abortion, involving the concepts of Ahimsa, Karma and reincarnation, the agreed stipulation is that the final decision whether to terminate the pregnancy should be left to the pregnant woman. The Dalai Lama believes that abortion has negative karmic consequences, as it interferes with the cycle of birth, life, death and rebirth. However, he believes that abortion should be approved or disapproved according to each individual circumstance.

One school of thought on Islam teaches abortion is unlawful as a foetus becomes a human being “once the drop of the man had mixed with the blood of the mother”; another believes that “a foetus becomes a living soul after 16 to 20 weeks’ gestation”. According to yet another source, abortion should be determined entirely on the threat of harm to the mother.

In atheistic, scientific reality, a foetus becomes a human being only after birth, when the infant takes his/her first breath, just as death is confirmed when a person takes his/her last breath. Your birthdays are celebrated not on the day your father successfully fertilized your mother’s egg, nor on the day your heartbeat was heard through a sonogram. Your birthdays are celebrated on that wonderful day your parents held you in their arms for the first time.

Roe v. Wade ruled that the decision to allow a woman the right to legal abortion was not just about the age of the foetus. The circumstances of the pregnancy (rape, incest, etc.) were also taken into consideration, as were the dangers of a continuing pregnancy to the health and well-being of the pregnant woman and/or the foetus.

With the proposed opinion to overturn Roe v. Wade, this Supreme Court may rule that abortion will be illegal, under all circumstances and at any stage of the pregnancy. Life, a gift from God, begins at fertilization, with no regard to the circumstances which caused the pregnancy. I am only surprised these religious kooks in Justices’ robes do not consider that life begins at erection.

Considering the most gruesome scenario, this draft opinion against abortion will compel a 12-year-girl, raped by a monster or family member, to carry the baby to childbirth, and gaze upon the eyes and features of her rapist all her life. An unwanted, even hateful tragedy which may prove to be a disaster for both the 12-year old child and the newborn infant.

There is no woman in the world who would want to terminate the life of the foetus growing inside her, unless there are circumstances which would make her life, or that of the unborn, totally unbearable. That decision, those circumstances and that choice, is hers, and hers alone, in consultation with her doctor and her God.

If the US radical right has genuine claims to be Pro Life, they will make benefits like extended periods of maternity leave, help with free care of the newborn child, its health and education. Also they will provide all assistance necessary to the mother whom they have forced to carry the infant to full term to pursue her own personal dreams.

But they will not, not in the USA, anyway. These Evangelical Republicans are not Pro Life; they are simply Pro Birth. Their interest in the well-being of the mother and the infant disappears after birth. Both the mother and the child will be abandoned to fend for themselves as best they could.

This leaked document is only a draft opinion, with no legal status. But there is a silver lining. The implied opposition to overturn Roe v. Wade, a ruling which has the support of the vast majority of Americans, may so incense voters of all stripes to support the Democratic Party in the midterms in November 2022. The attempt to overturn Roe v. Wade might well be the first nail in the Trump Republican coffin, and present the Democrats the opportunity of holding, even adding to, their majorities in the House and the Senate in November, a prospect projected to be highly unlikely before this leaked draft opinion emerged to overturn Roe v. Wade.