The Supreme Court’s ruling that was leaked showing the majority may overturn Roe v Wade was stunning for several reasons. Since it was settled law for 49 years, it seems inconceivable it could be removed. Second, the arguments contained in the leaked documents placed this decision on very weak foundations that are deeply troubling.
The issue of abortion is very personal. To that end, Roe had appealed to “common and customary” understandings about reproduction that existed in our nation’s Common Law history and principles that the first immigrants to this new world carried into the new settlements.
Common Law evolved over centuries with deep roots in Biblical principles back to the earliest days of England. Drawing on scripture, Common Law departed from Catholic theology by accepting that life begins not at conception but “first breath”. (see for example, Genesis 2:7 and Ezekiel 37: 5-6). First breath was thus the start of life. Prior to that, it is potential life.
Scripture put the woman over the fetus in terms of societal values. In Exodus 21:22 it states that if someone causes a woman to miscarry, he is fined. If he causes her death, he is put to death. The Common Law carried the primacy of the mother into English societal values by valuing the mother above the fetus until “quickening” or, essentially, viability outside the womb. At that point mother and future child are equal in the eyes of society.
Abortion was legal and available in the colonies and new nation until the 1860s. There are many reasons why it became illegal, but it cannot be said that it was ever criminalized in the US prior to that period. It was part of American law and an accepted practice until then. This is important because assertions it has always been illegal are not accurate.
In 1973, the Supreme Court, resting on centuries of English Common Law, wrote the Roe decision in keeping with the legal differentiation of before and after “quickening”. The decision follows Common Law that in its turn had followed Scripture.
The arguments against Roe are frightening above and beyond the destruction of a woman’s rights. Justice Samuel Alito asserts that abortion was always criminalized prior to 1973 and that Roe rested on no legal principles. That is simply not true. To support his own argument, Alito points to the 17th C. Barrister and legal scholar, Matthew Hale whose diatribe against abortion he cites and upon which Alito rests his opposition today. The problem is, it was a personal opinion, not a legal principle. Hale was at odds with the law and society of his time, but his objections never found their way into the law. Thus it is not a legal precedent for Alito at all. Roe rests on Common Law. Alito’s opinion today does not.
The five conservative justices who look prepared to overturn Roe are part of the Federalist Society that has offered many oppositional arguments against Common Law per se. Common Law allows ordinary people the right to challenge laws and facts through the courts. One can argue that it is part of the reason England and her colonies have far fewer revolutions – if you can make changes through the law without appealing to the Legislature, you as a citizen have effectiveness and agency without needing to overthrow your government. The Federalists want the United States to be more like France and Germany where the Legislature is everything and no challenges can be made.
To meet this argument, we are now going to be called on to codify Roe in legislation. No one should have to, but if we are to preserve the principles of Common Law that have served us well, that will become a new standard with this court.
So what has to happen is to shape the legislatures – state and federal – to assure we can pass bills that uphold what we, the people, desire. It ought to be an unnecessary step, but it no longer can be avoided. We must vote into office people who both uphold our immediate goals and who accept the operation and importance of our legal system as a safety valve for right of access to justice.
Voting, therefore, becomes far more urgent than ever. Roe is the first but will not be the last challenge to both the specific concerns – abortion, marriage equality, interracial marriage, and even access to voting – and to the survival of Common Law and our access to courts. If our courts are not living, breathing bodies for change, we are surely going to be less free. VOTE as if your life depends on it!
Public Policy Advocate
California Council of Churches/IMPACT