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Op-Ed: Supreme Court vs US Constitution and Roe vs Wade – No winners, ever

There is no stated power in the US Constitution to regulate human reproduction.

US judge temporarily blocks restrictive Texas abortion law
Protesters take part in the Women's March and Rally for Abortion Justice at the State Capitol in Austin, Texas on October 2, 2021 - Copyright AFP
Protesters take part in the Women's March and Rally for Abortion Justice at the State Capitol in Austin, Texas on October 2, 2021 - Copyright AFP

There is no stated power in the US Constitution to regulate human reproduction. It’s not even mentioned in the Constitution. Yet that is exactly what the Supreme Court is doing. If the predicted overturn of Roe vs Wade takes place, it is in direct conflict with freedom of belief.

The First Amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Therefore, consider this argument:

If the effect of legislation is to prohibit the exercise of any other religion, it’s unconstitutional and in direct violation of the First Amendment. If a religion is OK with abortion, the legislation is effectively prohibitive of “the free exercise thereof”.

Roe vs Wade upheld the right of a pregnant woman to have an abortion “without excessive government restriction”. The quote is a problem in itself. What’s “excessive”? In short, and in context with the First Amendment, any restriction is unconstitutional.

There are other cases related to reproductive rights which are also important. Findlaw.com cites: ‘ (Skinner v. Oklahoma), contraception (Eisenstadt v. Baird), family relationships (Prince v. Massachusetts) and child rearing (Pierce v. Society of Sisters).” Reproduction was recognized as a fundamental personal right, with applications to contraception and abortion.

So what if abortion is illegal…?

In keeping with conservative US efforts to regress human, civil, and constitutional rights, abortion is seen as a key battleground in political environments. That’s more than slightly obscene.

There is simply no limit to the insularity of this argument in social terms:

Claiming the right to dictate reproductive rights is true dictatorship in the most unequivocal form. Do you WANT any government to have the power to tell you whether to have or not have kids? If so, why? If they can dictate that, what can’t they dictate?

US poverty and homelessness, an ever-increasing cost of basic needs like housing and health make life extremely difficult already. A wave of unwanted kids will make things a lot worse, fast.

The likely response to making abortion illegal will be black market abortions and many deaths through botched procedures. That was the way it was back in the days when women weren’t allowed to have abortions. Quite literally, there were dead bodies on kitchen tables with coat hangers in them.

Of course, a lot of people made money out of it, so it’s another prohibition environment for organized crime and “black market healthcare”. Isn’t that wonderful?

People also went elsewhere and had abortions, as is well known. Canada and Mexico aren’t that far away. The net real-world effect of any overturn of Roe vs Wade will be very much cosmetic in practice, but very ugly indeed.

But…? Yeah, there’s a large “but”, anyway you spell it.

The much less obvious issue is what happens if this repulsive overturn of basic rights succeeds:

  • Will it encourage further attacks on rights? Probably.
  • Will SCOTUS become the default method for conservative agendas? Duhh…Hyuck. They can’t get voted in outside the hayseed states, but they can do this.
  • Will it reinforce the credibility of extremist right wing groups with campaigns against their enemies, real or imaginary? More than likely.

Nothing new there, you may think. However – It’s making the US the most genuinely regressive Western nation on Earth. Quality of life is eroding badly. The Constitution is being undermined on a daily basis. America’s war on itself is reducing its competitive edges, as well as making a mockery of even the idea of democracy.

Just one more thing – Every single time America goes against the principles of the Constitution, it lands flat on its ass, deservedly. This situation, however, could be so much more than a slight bruised butt, if it happens.

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Written By

Editor-at-Large based in Sydney, Australia.

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