Less than two years ago, the Supreme Court of the United States overturned the landmark 1972 decision in Roe v. Wade. It was the death knoll for reproductive rights. In the last two years injustice disguised as law has embedded itself into the American legal system. It is necessary to understand the legal changes happening within our justice system as they are one of the only forms of protection that remains. Dobbs v. Jackson’s Women’s Health Organization was heard by the Supreme Court in an act of good faith, with the expectation that the legal precedent of Roe would be upheld. The issue being argued in Dobbs: the constitutionality of Mississippi’s 15-week abortion ban. The champion for abortion rights: the only remaining abortion clinic in the State of Mississippi—Jackson’s Women’s Health Organization. The Supreme Court was supposed to uphold 50 years of legal precedent. Instead, in a decision written by Justice Samuel Alito, the Supreme Court not only upheld the Mississippi abortion law but also overturned Roe v. Wade and Planned Parenthood v. Casey—the two legal precedents that prevented an outright ban on abortion care. The decision eliminated all federal constitutional protections for abortion and moved all abortion laws and regulations to be assessed under the most lenient level of judicial review: “rational basis.” Under this standard, according to the Supreme Court, any laws regarding abortion would be entitled to a “strong presumption of validity.” Lawmakers now could determine the validity of abortion rights regardless of medical or legal understanding. Women’s rights activists and medical providers across the world condemned the decision as a gross violation of women’s right to autonomy. They warned that restricting access to abortion was just the beginning of a political attack on women’s reproductive rights.
They were right to be worried. Instead of a “presumption of validity” toward existing abortion laws, many states immediately began banning access to abortion care entirely. According to a New York Times report from Jan. 8, 2024, 14 states have implemented a full ban on abortion in most or all circumstances, another seven have implemented bans well before the previous timeline protected by Roe and three states are currently fighting for bans through their court systems. Abortion remains legal in 27 states, but that may not be enough, especially in light of the most recent attacks on reproductive rights in the United States.
On Feb. 16, 2024, the Alabama Supreme Court declared that embryos created during the in-vitro fertilization (IVF) process should be considered children. In this case, the plaintiffs were three couples who underwent IVF at a clinic in Alabama and successfully had children. They also had several embryos frozen, assuming they could return at a future time to once again conceive. Instead, a patient of the hospital where the embryos were stored entered the clinic’s cryo-preservation unit and opened the storage tank containing the embryos. The patient then touched and dropped the embryos after burning his hand on the frozen components of the tank. The plaintiff couples sued the clinic for the destruction of the embryos for the Wrongful Death of a Minor. The case was thrown out because under Alabama law, embryos were not considered children. On appeal to the Alabama Supreme Court, the decision to dismiss the case was overthrown under the belief that the Wrongful Death of a Minor does apply “to all unborn children without limitation. That includes unborn children who are not located in utero at the time they are killed.” Not only did the Alabama Supreme Court enshrine embryos into personhood but their justifications were filled with religious reasoning with Chief Justice Tom Parker citing scripture and theology as his justifications instead of legal statutes. IVF clinics throughout Alabama have already stopped providing services out of fear that they and their clients may face criminal charges during the IVF process. After all, what happens if an embryo does not implant, or does not survive the freezing or thawing process? The journey through infertility is rife with failure and heartbreak, and this new risk of unjust legal consequences is more than most can bear.
Meanwhile in Texas, a federal appeals court ruled that a father has the authority to consent to his daughter’s use of birth control under the federal Title X program, under the claim that a state’s parental rights laws preempt the federal statute. The Fifth Circuit Court of Appeals upheld a lower Texas court’s ruling that prevents minors from obtaining contraceptives at federally funded Title X clinics without parental consent. This decision ignores the 1997 Carey v. Population Services International decision that granted minors similar rights to adults in accessing birth control without parental consent. The case, supported by the Fifth Circuit Court, was based on a Texas father’s claim that he wanted to raise his three daughters under Christian beliefs and required that he be made aware of his children’s access to contraceptives. What is to stop parents in states like Texas from preventing their children attending school in more progressive states from accessing birth control? If your adult children are on your insurance do you have the right to prevent their access to contraception and reproductive health care? Where do we draw the line?
These new legal precedents have both been rooted in religion. Arguments that once would have been deemed violations of the First Amendment, placing specific religious theology over all others, were allowed unencumbered by our highest courts. They place women and children in danger, under the burden of men’s expectations of and to their bodies. They are a continued warning from Dobbs that a government willing to rescind one civil liberty is a government willing to rescind them all. We cannot ignore what is happening just because it is happening primarily in the South. The South has always been a testing ground for legal policies and procedures, for the oppression and control of systematically marginalized communities. What happens there happens to all of us, because there is no justice under unequal laws. It is time for new generations to enter the political arena, to overwhelm the ballots, the courts and public offices with our presence and our voice.