The End of Roe v. Wade: Extinguishing the Penumbra

The following is an excerpt of attorney Sarah Weddington’s remarks to the Supreme Court in December of 1971 in the landmark case of Roe v. Wade.

“In-so-much as members of the Court have said that the Ninth Amendment applies to rights reserved to the people, and those which were most important, and certainly this is—that the Ninth Amendment is the appropriate place—Insofar as the Court has said that life, liberty, and the pursuit of happiness involve the most fundamental things of people, that this matter is one of those most fundamental matters. I think in as far as the Court has said that there is a penumbra that exists to encompass the entire purpose of the Constitution, that I think one of the purposes of the Constitution was to guarantee to the individual the right to determine the course of their own lives. Insofar as there was, perhaps, no compelling state interest—and we allege there is none in this case—that, there again, the right fits within the framework of the previous decisions of this Court.”

It’s easy for me to tell you that the tide will turn again. That we’ll someday return to our senses as a nation to offer protections to the poor, the marginalized. That we’ll be better. Kinder. Moral. That this too shall pass. That’s easy, because the country was built for me. Every step of the way, it was designed with me in mind. Moreover, I live in a blue state. I’ve chosen to live in an area where my daughters are afforded certain protections and given opportunities that have been denied others, and will once again be denied in certain parts of the country.

I’m speaking clearly to the recent leak of the majority Supreme Court opinion concerning the future of Roe v. Wade. Mitch McConnell was hopping mad that the preliminary decision was leaked. Chief Justice Roberts called the leak a “betrayal.” While conservatives decry the leak itself as an affront to liberty and norms, the left once again finds itself in the unenviable position of fighting for basic rights that were once assumed, but are now again under assault.

Writing the majority opinion of the Supreme Court decision, which is not final, and no one knows what a final version will look like at this moment, is Samuel Alito, a George W. appointee. As Politico writes, Alito argues “that the 1973 decision sought to wrench the contentious issue away from the political branches of government.”

What makes this Supreme Court’s interpretation so monumental is that, in ruling on the specific case of Dobbs v. Jackson Women’s Health Organization, a case brought in Mississippi that seeks to ban abortion after 15 weeks of pregnancy, Alito is going for the jugular and cutting abortion protections out at the roots. By essentially nullifying the logic of Roe v. Wade, he’s destroying the basis for any case that cites the 1973 law as a foundation for precedent. Overturning Roe effectively returns all decisions regarding pregnancy and women’s health to the states.

So, those are the stakes and, regardless of how familiar one is or isn’t with Constitutional law, the result is clear. It’s likely that women in 26 states—mainly red states—will no longer be in control of their reproductive rights.

In trying to wrap my mind around not only the ramifications of this potential decision, of which there are many, my mind kept returning to the argument made by Sarah Weddington in the opening clip. That, “there is a penumbra that exists to encompass the entire purpose of the Constitution.”

Weddington successfully argued that penumbral rights—rights that are implied by a single or complex grouping of rights not specifically enumerated in the Bill of Rights, but nonetheless fundamental to our freedoms as individuals—were applicable in the case of reproductive rights.

In Astronomy, a penumbra is the lighter part of a sunspot. Almost a halo that emerges during an eclipse. Strip away any personal feelings about abortion or reproductive rights. Take all the emotion out of the argument. And cast a blinding gaze for a moment at the penumbra, that glow, the halo that surrounds the Bill of Rights, the Earth, we as a people. And watch as it fades.

The darkness from within the country now overshadows the penumbra. Half of this country believes that abortion should be legal in all cases. The majority believe that it should be legal in most instances. The darkness inside the penumbra is the minority. Those holding onto some vague notion of theocracy in the United States where all life is sacred, unless that life is serving a sentence on death row. Or, at risk from a life-threatening pregnancy. Or, violated by the violence of men. But forget about the moral and legal inconsistencies of the religious right in this country, numbers don’t lie. The minority in the United States is fully in control of the legal agenda, and they’re doing the bidding of their big money backers.

We see it everywhere. The tyranny of the patriarchy that lives in the hearts of the minority. We can see so clearly how they’ve weaponized procedural elements of Congress to deny the demands of the majority. We see it in the highest court of the land, where now five of the nine justices—Alito, Roberts, Gorsuch, Kavanaugh and Coney Barrett—were appointed by Presidents who were elected by a minority of the population. Alito, of course, is himself a product of a controversial Supreme Court decision—one that halted the Florida recount in 2000 and gave W the presidency.

With the constant challenges to the consequential 1973 decision in recent years, and more than 1,300 abortion restrictions enacted across the country since then, I knew what would happen to Roe v. Wade, just as we knew the Senate would kill Build Back Better. The minority lies and preys on the weakness of establishment Democrats who are feckless in the face of their tyranny. And here’s how good the Republicans are at selling their bullshit as moderation. Witness Susan Collins, who released a statement feigning indignation at how Gorsuch and Kavanaugh were dishonest in their private interviews with her—should this preliminary decision prove to be accurate.

As for the Democrats, look no further than Nancy Pelosi’s continued support for anti-abortion House Democrat Henry Cuellar over progressive candidate Jessica Cisneros, at the same time she’s saying women’s rights will take center stage during the November midterm elections. Already, Democrats are playing their favorite game of blaming Republicans for their own gross incompetence, telling voters that the only way to correct this wrong is by showing up in November—as if Democrats aren’t already and haven’t been in control since 2021.

Alito’s opinion—one that a majority of justices reportedly agree with—is effectively a rebuke to the long-standing notion that the court itself remains above the fray when it comes to political discourse. Alito, who recently railed against liberal ideology in a speech in front of the Federalist Society—the actual Supreme Court kingmakers in Washington—has dispensed with the charade and shown the world the Court’s true colors in the form of a 98-page legal draft that pulls very few punches. This, at a time when the Court’s approval ratings are sinking, largely because a majority of Americans view it as a deeply political institution—something Roberts has long sought to protect against.

A Gallup poll released last September found that the Court’s approval was at its lowest on record. The Court’s shrinking approval transcends party affiliation, with “Republicans, Democrats and independents…all less likely to say they approve of the job the Supreme Court is doing,” according to Gallup. It also aligns with the public’s perception of many of its institutions: In a survey of 14 major U.S. institutions, all but small businesses, the military and police had the support of more than half of Americans.

Contrast how the public views the Supreme Court with its sentiments around abortion. Since 1989, Gallup has been asking Americans whether they’d like to see the Supreme Court completely overturn Roe v. Wade, and the response from the majority of the country has been a clear and emphatic “No.” Actually, public support on this particular question has essentially gone unchanged, with 58 percent in 1989 and 58 percent in 2021 saying they oppose such extreme intervention.

This is what minority rule looks like: A Court with five sitting justices that were appointed by presidents who lost the popular vote by nearly 3 million votes combined.

The Senate has gone far beyond the “cooling mechanism” it was intended to be. It’s quite literally where progress goes to die. While conservatives will happily be elected on the promise of going to Washington to do nothing, Democrats are knowingly conceding defeat on seismic issues that they consistently vow to address, and then turn around and chastise voters when they’re too uninspired, apathetic or simply disgusted to show up on Election Day. Minority rule often wins because elected Democrats allow it to happen. Sure, the cards are stacked in the other side’s favor, but Democrats deserve a good deal of the blame—and yes, that includes Barack Obama, who reneged on his promise to make abortion rights government policy when he first entered the presidency.

The Court’s dismantling of a four-decade old legal precedent is the result of a well-funded Republican effort to foment religious fervor. In effect, it culminated in Trump’s presidency, where the religious right united behind a philandering reality star and former pro-choicer. The minority is no doubt celebrating this decision with the enthusiasm to match Trump’s electoral college victory in 2016.

These are technical observations. Ruminations of a man. Someone incapable of producing life and unable to fully and personally realize the magnitude of this regression. The sheer barbarism of the whole thing. Final word appropriately goes to 99.

99: I won’t pretend to be an expert on constitutional law or legalese. I’m not even going to pretend that I can be measured and succinct right now. Because what I am is a woman, living in America, in 2022.

The “land of opportunity” and a “free country.”

Yet, for some reason, my body, my fucking UTERUS—and when I say my, let me be clear; I’m speaking broadly on behalf of all birthing people, people with uterus’, etc.—is open for discussion and ruling.

Overturning Roe v. Wade felt like the bogeyman. Emphasis on man. It was always there to scare me, but never something I believed in wholeheartedly.

Yet, here we are.

I can’t begin to express the range of emotions I felt when I read news of the leak. A stomach sinking, hopeless despair. How? Why? What the fuck.

My body is not an object. We are not objects.

Many individuals I know have had abortions. And their lives are better because of it. And, of course, everyone’s experience and relationship with that is different, and happen for different reasons: perhaps an accidental pregnancy, a complication, rape.

Why should anyone but that person get to decide what happens with that pregnancy, with their body?

I want to save space here in these final moments for others.

I identify as a woman. I am white. I live in a blue state. While I hurt greatly during this time, ultimately, my privilege will protect me. If I stay where I am, I will have access to a safe abortion should I need one. For now, at least.

So, let’s hold space for the people who live in red states. For trans people. For non binary folks. For people of color. For underprivileged and marginalized people. White feminism has no place here.

Don’t fight for us because you have a sister, a daughter, a niece, a mother. Fight for us because we are people. And we deserve equal rights and bodily fucking autonomy.

It’s 2022. Let’s start acting like it.