Saturday, August 6, 2022

Where Do We Go From Here?

“Where do we go from here? This isn’t where we intended to be.”

Poignant words from one of my favorite musicals, Evita. This line has been turning over and over in my mind after reading through the transcripts of the arguments in the Mississippi abortion law brought before the Supreme Court. This case will create shockwaves for generations to come regarding reproductive rights.

So, where do we go from here?

We know the current makeup of the Supreme Court and who nominated the Justices. We know that the Supreme Court has been manipulated through political tricks in the United States Senate to gain the philosophical majority it currently contains. We knew that a challenge to abortion rights would be swift and likely devastating.

What struck me is that I heard most Justices manipulate their questions regarding stare decisis in Roe and Planned Parenthood of SE Pennsylvania v CaseyStare decisis means let the decision stand. It is a legal doctrine that, in Kimble v. Marvel Enterprises, the Supreme Court ruled that stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process”.

The Supreme Court has previously been stalwart. It does not overrule previous decisions unless there is evidence that the prior rule is unworkable, that there have been significant changes in society, or in the case of abortion, medical technology. For nearly 50 years, the women of this country have had the right to their own bodily autonomy recognized by the federal and state governments under Roe v. Wade. Casey established the viability standard for the timing of performance of abortions without an undue burden, from the government, for women who chose to exercise that right.

The members of this Court are likely to overturn Roe and Casey in a 5-3-1 decision.  I predict Thomas, Alito, Barrett, Kavanaugh, and Gorsuch will vote to overturn the law; Breyer, Sotomayor, and Kagan will vote to uphold the law; and Roberts will concur in part and dissent in part. Roberts will concur with the majority that Mississippi’s 15-week ban is allowable but dissent in the overturning of the entire right to an abortion.

I hope that I am wrong, and that Gorsuch could side with the liberals and Roberts, but I would not bet on it. Sotomayor asked how the Court will survive as an institution if the public perceives that the Constitution and its reading are a political act. Public trust of our Constitutional principles and system of government are already waning. If the Court overrules a fundamental right that the public generally supports and women rely on, that trust will be irreparably harmed.

The recognition of the right to obtain an abortion has propelled women forward and contributed to the economic booms of the last five decades. Women have been able to leave the home and pursue their dreams and goals with the knowledge they can plan their families and futures. Contraception has greatly contributed to this progress, but contraception is not one-hundred percent effective. Unplanned pregnancies happen, and women have sought out abortions throughout time.

Roe and Casey ensured that women can safely have abortions in this country. Overturning Roe and Casey does not make abortion magically disappear in the states that will severely limit or ban abortion, it only eliminates safe abortion. Further, I expect to see poverty increase in the states that ban abortion and women’s participation in the economy decrease.

If the fundamental right to an abortion and a woman’s bodily autonomy can be overruled, could we see the Court overturn other fundamental rights? The LGBTQ+ community has made tremendous advances toward recognizing our legal rights through the Court. The landmark cases are Lawrence, Obergefell, and Bostock. Lawrence decriminalized sexual relations between consenting adults. Obergefell extended the fundamental right to marry same-sex couples. Bostock extended federal workplace protection on the basis of sex under Title VII of the Civil Rights Act of 1964 to the LGBTQ+ community. These cases ushered in a new reality for our community and the country. Like Roe and Casey, they each have strong religious opposition by a small but very vocal group of citizens. Pushback has come from legislatures, think-tanks, special interest groups, and the pulpit.

We know that two of the six conservative justices have expressed that these cases were wrongly decided. The same two have expressed that Roe and Casey were wrongly decided and the conservative justices inquired if a precedent can be overturned because it was wrongly decided, even with stare decisis.

I fear that the belief by the conservative justices that Lawrence and Obergefell were wrongly decided could be used as grounds to overturn them if a case contesting those rulings comes before the Court again. The drafter of the Texas abortion law which outlaw’s abortions after six weeks and cedes enforcement of the law to the citizens has openly expressed that Obergefell is next on his list to attack.

Our citizens need push back against this minority. The United States is not a theocracy, not a dictatorship, does not have an authoritarian government, and is not a monarchy. We are a democratic republic. Congress has the power to codify our fundamental rights. The state legislatures can preserve and protect our rights. Virginia has made great strides in protecting LGBTQ+ rights, but elections have consequences.

We need to vote and get involved to ensure the protection of the rights of LGBTQ+ individuals and women. Our rights depend on it.

Rachel Anderson, Esq. is an Attorney at Chesapeake Legal Group, PLLC and Vice President of the Board of Directors of HRBOR who specializes in estate planning and administration, business law, contracts, and family law.  Ms. Anderson represents clients throughout Hampton Roads and can be reached at Rachel@chesapeakelegalgroup.com or 757-410-7943.

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