Michealle Gady, JD
President, Founder, & CEO
I’ve been trying to write this article for the last 3 weeks, ever since the news broke that the US Supreme Court had provisionally voted to overturn Roe v. Wade, the ruling that has existed for almost 50 years ensuring that women have the right to abortion as a component of reproductive healthcare. Each time I tried, I wrestled with rage, sadness, fear, disappointment, frustration, and despondency.
But this is important, and I persisted. This is an issue that is deeply personal to me, not just because I am a woman, but because I am a woman who has had an abortion. As a freshman in college, I made the choice to end an unplanned pregnancy. My reasons for doing so are my own and no one else’s business. Over the last few weeks, I’ve watched as women have bravely told their stories. I’ve respected each of them for sharing their reasons. I’ve also been furious that they were put in a position to have to do so. The decision to carry a pregnancy to term – as well as the decision not to – is deeply personal and no one should have to explain their decision with the intent to justify.
Because of my own experience and having exercised this right of autonomy over my body, I volunteered with organizations like NARAL Pro-Choice America to help ensure that other women continued to have the same freedom. I also worked as a law clerk during the summer between my 1L and 2L years at an organization in Texas called Jane’s Due Process, which focuses on protecting the reproductive rights of teens, whether that is obtaining a safe, legal abortion, accessing birth control, or choosing to continue a pregnancy and ensuring other rights, like continuing school and accessing healthcare, are protected. The situations I encountered in this time were heart breaking and infuriating. Each story stayed with me and informs who I am today.
While the decision isn’t final and could, theoretically change, we are all grappling with the reality that a right recognized for over half a century, which also set a precedent for so many other civil rights protections since that time, is likely to be reversed. Until such time as it is final, abortion remains legal in the United States; thereafter, the matter will be left to the states. Let’s be clear, if that happens, most women in the country will no longer have access to abortion. As many as 30 states have laws that do not protect the right to abortion in some form.
Don’t be fooled by the statistic. It doesn’t indicate that the majority of the country supports these laws. In fact, for all the political controversy and punditry, access to abortion is supported by a majority of Americans. The majority of Americans do not support the overturning of Roe v. Wade.
This case, and the failed vote that followed in the Senate to enact the Women’s Health Protection Act, which would codify a right to abortion, set off all the alarm bells for me as a lawyer and an American. What is happening in this moment is a clear demonstration that rather than a democratic, representative government, we are rapidly moving toward minority rule. In many ways, perhaps in all the ways that matter, we are already there.
Our government institutions have, with justification, lost the faith of the American people. What is most alarming though is that more than half the country has little to no confidence in the Supreme Court. Understand what that means. More than half of the country does not have faith in the institution that is meant to ensure the protection of their rights. The institution meant to hold in check the political branches of our government.
In our representative form of government, the authority of the judicial branch is as the final arbitrator on all Constitutional questions. This represents a delicate balance between the branches of our government. The Court and its Justices (including current Chief Justice Roberts) have always been acutely aware of the awesome responsibility they have as non-elected and tenured arbitrators on some of the most important questions. This responsibility comes from a case before the Supreme Court over 200 years ago: Marbury v. Madison, in which Chief Justice Marshall established the Court’s role of judicial review and that the US Constitution is the law supreme. Laws enacted by legislative bodies must be constitutional or the law would be found invalid by the Court. The legal reasoning in this case is brilliant (and a superb example of losing the battle to win the war) and has been relied upon by the Supreme Court many times throughout history to protect the rights recognized by our Constitution that have been and continue to be so carelessly disregarded by the political process. (The profound importance of this decision did not resonate with me, as it does now, all those years ago when sitting in Professor Margulies’ Constitutional Law class.)
Using its responsibility to uphold the Constitution through judicial review, the Supreme Court has righted many wrongs, whether we look at Brown v. Board of Education, Loving v. Virginia, or Roe v. Wade. In this way, the judiciary branch, that unelected branch within a democratic government, has demonstrated its necessity: tempering the force of the majority to protect the individual rights of those otherwise marginalized by the political process. This, however, will be the first time that the Court has taken action to overturn long established precedent to remove a previously recognized individual right and protection.
Access to reproductive healthcare, including abortion, is not only a Constitutional right, but an implicit human right of autonomy and self-determination. I, and every person, has the right to make decisions about their body. This is an inalienable, natural right: meaning that these are rights that cannot be taken away or impinged by laws created by government.
To deny or qualify this right to any woman is to deny her humanity and essential equality. Recognizing this degrading, ugly and incontrovertible truth, that this is how some continue to see women and a woman’s place in society, is one reason so many women are so devastated by this decision.
A woman is more than her relationships or the roles she plays – however important those relationships and roles are. A woman is more than a mother, a daughter, a wife, or a friend. A woman is an autonomous human being. Her rights to exercise that autonomy necessarily and automatically outweigh the putative or future right of any fetus. It isn’t even close. And it hurts me deeply that women, particularly girls entering womanhood, continue to receive the message that their rights, their autonomy, their bodies are negotiable.
For decades, our elected officials have been asleep at the wheel or to distracted with party politics and the associated squabbling. We, the electorate, have also been distracted, lulled in part as we have enjoyed a long stretch where progress on civil rights seemed an inevitable, natural projection. Where the moral arch of the universe, while long, always bent towards justice and in our immediate horizon. Complacent and self-involved, motivated by the fantastic, dramatic, and ridiculous, we stopped paying attention to what matters. Our attention to detail was reduced to 140 characters.
This decision interrupts that idyll, and reminds us that bodies, like dreams, can be broken and our horizons bound. It’s time for us to wake up and act. Elections at all levels of government will take place across the country this year. If we want government to be better, to represent us and enact policies that protect our rights and produce a nation we want to live in, it’s up to us to elect those that will make so.