In 2020, I wrote an article for another online magazine examining how Amy Coney Barrett was an unjust replacement for the late Justice Ginsburg—a woman who dedicated her life to equality on the basis of sex. Justice Ginsburg’s advocacy truly was one that was meant to make American society a just world for both men and women.
For example, Ginsburg is the reason the legal drinking age for both men and women is 21. There was an Oklahoma law that allowed women to drink at 18, but men could not until the age of 21. Ginsburg took a case involving a fraternity brother and convinced the court to make the national drinking age for both men and women the age of 21. This is just one example of the many cases Ginsburg argued in her time as an attorney that were meant to advocate for true gender equality.
There is a reason many were extremely worried when Barret was appointed to the court beyond her lack of experience her anti-abortion stance that added to an already very conservative court meant the possibility Roe v. Wade could be overturned. Ginsburg was one of my heroes and hearing of her passing had me shed several tears, ones that were both because of my great respect for the late justice and worry about the future of reproductive rights for women.
Now it is 2022 and there has just been a leak of an opinion draft by Justice Alito that overturns Roe v. Wade. Alito’s reasoning in his draft is there is no explicit mention of abortion in the United States Constitution. He also argues the reasoning in the Roe v. Wade case is weak and does not have any true merit beyond a blank argument about the due process clause in the Constitution. He argues that for these reasons the case should be overturned.
It can be difficult to understand Alito’s argument without looking at the specific Constitutional reference to the due process clause in the fourteenth amendment. Basically, the fourteenth amendment was part of the Reconstruction amendments or those that gave citizenship to Black people. However, the due process clause in this amendment has throughout the course of legal history extended far beyond abolition. The due process clause protects one’s right to privacy, with an abortion classified as part of that right to privacy.
What is also interesting here is the court is overturning precedent. For those of us who are not constitutional law aficionados, precedent is the notion that when the Supreme Court is looking at a case with similar fact patterns or a similar situation to an earlier case, they should draw upon that earlier case. Earlier Supreme Court cases are precedent, and the reasoning of these cases is meant to be followed the majority of the time unless there are excruciating circumstances.
Precedent is extremely important in the Supreme Court, and overturning an earlier case means overturning part of legal history. Most of the time, the overturning of precedent is only if it will advance history or society. For example, Brown v. Board of Education, the case that established segregation as unconstitutional, overturned the earlier case of Plessy v. Ferguson which stated that segregation should be legal. However, while Alito cites many cases that overturned precedent as part of the advancement of legal history or society what he fails to acknowledge is overturning Roe v. Wade is not an advancement in the slightest.
Alito and the conservatives of the court are playing with the rules of legal history. They are deciding when it is convenient for their political agenda to not stick to the unspoken rules of the court. Ones that mean not overturning prior cases unless it is absolutely necessary for legal advancement. The court is one that is meant to be impartial. However, it has never truly been. The court was not impartial when it decided that slavery was legal—it was made up of all white men. The court’s decisions depend on the context of the current political landscape.
We cannot continue spewing the notion the court is impartial because it never has been and never will be. However, what the court is and must be is one that is fair and tries as best as it can to not allow its political views to get in the way of rulings that will affect the whole of American society.
As a 21-year-old girl, yes, I am scared for my reproductive rights. I am scared for the reproductive rights of my roommates, my best friend, my sorority sisters, the girls who live down the hall from me, and so many more.
Why should a court composed of a majority of men who never have and never will bear a child decide what my reproductive rights are? How can a court that has so much more privilege than the 15-year-old girl who is just trying to finish her high school degree, the college student who was raped, or the low-income mother who cannot afford to have another child decide what agency or lack thereof they have over their bodies?
All of these women need us to advocate for them. There is a reason there was so much worry when Barret replaced Justice Ginsburg, but unfortunately, the moment has come to act on this preconceived worry.
It is time to be angry and it is time to advocate, donate, and most importantly it is time to vote. That is what the late Justice Ginsburg and so many women before and after her would want us to do.
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