By Lynn Wenzel
This article originally appeared in the Union, Tuesday, July 5.
In 1972 I marched for the right to control my own body. We carried signs. We were loud. And we were angry. Then came Roe. And we relaxed, at least for a while. Folded as it was into the larger fight for women’s rights, we took our eyes off the ball in the mistaken belief that Roe was “settled law.” Now we know the dreadful truth.
Yesterday, a young woman in her thirties said with a mystified expression on her face, “I just took it all for granted. It never occurred to me that things would change.” Those of us, battle-scarred and wary, had often warned young women to stay alert. And now, they are shocked. The antis have not rested during this 50-year political project and organizing tool—calling themselves “originalists” they have plotted and planned to remove the personal autonomy of all except white men.
Rights and privileges guaranteed to citizens in the Constitution are mostly covered by the 4th, 5th, 9th and 14th amendments and include: protection from unreasonable seizures by the government, including the seizure of bodies; being compelled to provide private information about oneself, including pregnancy or its termination; the federal government NOT giving over any rights belonging to citizens, in this case women; and not being deprived of life, liberty or property without due process.
I am no Constitutional scholar, but it seems to me that under those rights women’s bodily autonomy may not be violated in any way. Roe, regardless of how it was decided, has been standing on these amendments, which also led to the protection of the rights of Black, Indigenous, and LGBTQIA+ people. The three Court liberals wrote, “The right Roe and Casey recognized does not stand alone. …the court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation…in turn, those rights led…to rights of same-sex intimacy and marriage. They are all part of the same constitutional fabric.” Justice Thomas, in his opinion, took aim at three other landmark cases that relied on that reasoning: Lawrence v. Texas, invalidating sodomy laws, Griswold v. Connecticut, declaring married couples’ right to contraception, and Obergefell v. Hodges, establishing the right of gay couples to marry. Justice Thomas has now said the quiet part aloud—the end of Roe is the beginning of the end of all other personal rights.
Justice Alito based his “most convincing” arguments for banning abortion on the work of Sir Matthew Hale, a 17th century English jurist whom Alito called “a great and eminent” legal authority. Really? Hale detested women, despairing of those who “learn to be bold” or “talk loud,” accusing them of faking rape and proposing the legal notion that women cannot be raped by their husbands. In 1662, Hale also presided at a witch trial, instructing the jury that “witches were real.” He then sentenced two women to hang. Hale considered women should temper their wit and spirit, writing that young women “make it their business [life] to paint…their faces, curl their locks and to find out the newest and costliest fashions.” Alito’s leaking contempt has wet the paper he wrote upon.
Alito claims historical precedent for his position, but contraception and abortion have been widely accepted practices for thousands of years. Ancient communities used sponges soaked in lemon juice or the seeds of Queen Anne’s Lace to block progesterone rendering the uterus incapable of holding on to the fetus. The Navajo and Shoshone women used Western Stoneseed and False Hellebore that caused sterility. Dong Quai catalyzed uterine contractions and induced miscarriage.
For now, women who live in blue states such as ours, are safe. But, as the Washington Post recently reported, anti-abortion groups and their congressional allies are already planning for a nationwide abortion ban if Republicans take power. In an interview with USA Today, Senate Minority Leader Mitch McConnell (R-KY) said a national abortion ban was “possible” and “worthy of debate.” Thinking of getting around it by ordering pills that now account for more than half of U. S. abortions? Think again. States are already cracking down on mail-order. Tennessee Governor Bill Lee signed a law that criminalizes mail-order abortion pills, fining anyone who sends pills “via courier, delivery or mail service up to $50,000.” Other states have already banned the use of telemedicine.
History tells us that women will not stop ending their pregnancies no matter what laws are in place, no matter the price, even unto death. In Texas, for example, a 2020 study found that local women were three times more likely than those in other states to try do-it-yourself abortion, including using herbs. A 2021 study revealed that some American women are using herbs to self-manage abortions. The conservatives on the court will not be able to render women invisible in their need. They will simply make life more dangerous and deadly for wives, mothers, sisters, and friends. Perhaps that is their goal. Shall we let a small group of men (and one woman) take autonomy and freedom away from us—men whose justifications rest on the words of medieval witch hunters. Vigilance requires us to name their end game—the erasure of all personal rights.
A bitter Clarence Thomas, resentful of media coverage during his confirmation hearing, told his law clerks that he intended to serve on the court to make the lives of liberals “miserable” for 43 years. What an estimable and honorable goal for this antediluvian specimen. Maureen Dowd wrote in The New York Times on May 8, “Alito is a familiar type in American literature; the holier-than-thou preacher, so overzealous in his attempts to rein in female sexuality and slap on a scarlet letter that one suspects he must be hiding some dark yearnings of his own.”