Sitting Shiva For Reproductive Freedom In America - Above the LawAbove the Law - Above the Law
I am surprised that people are “shocked, shocked, shocked” to use Claude Rains’s words to Humphrey Bogart in “Casablanca” about the substance of the “oopsie” preview of the Dobbs decision. Let’s think this thing through. We all knew, in our heart of hearts, that Roe was on the ropes. The appointment of three conservative justices during 45’s term was no surprise. Add the two already sitting justices, Alito and Thomas, to the mix and guess what? You only need the fingers on one hand to figure where Dobbs was headed. Call me a cynic, but not naïve. It was only a matter of time. Any chance that the opinion might swing the other way? What do you think?
Most of you were born after the 1973 Supreme Court decision in Roe v. Wade. I don’t need to explain to you what the decision said, we all know it. We all have taken for granted over the past 50 years what Roe has permitted. What many of you young’uns don’t know is what life was like before Roe. I was in my early 20s when Roe was decided. Whether to have an abortion before then was a potentially life-threatening decision because abortions were illegal across the country, and all kinds of horrifying consequences could and did accompany those procedures.
A well-known case in 1962 was Sherri Finkbine, who had to travel to Sweden(!) to obtain an abortion after she had taken thalidomide, a drug that caused severe birth defects and even death of fetuses. That’s the way it was just 60 years ago. Every female worried about unwanted pregnancies, whether they could terminate them and if so, how. Scary for all women, whether sexually active, on prescribed drugs (or not), the victim of a sexual assault, or any other scenario.
The world was very different then and not a better one in more aspects than I have space to mention. Back-alley abortions by unlicensed peeps and the few licensed physicians willing to take risks. Miscarrying or trying to by using coat hangers, knitting needles (I am not making these up), or whatever else was used to terminate an unwanted pregnancy. Terminations could and did result in inabilities to conceive later, hemorrhaging to death, and other “niceties.”
I have always considered the decision in Roe to have several meanings: that abortion was a woman’s right to choose prescribed by time limits that narrowed as pregnancy advanced, the right for women to control their own bodies, and the right to privacy. And in 1974, one year after Roe, California voters amended the California Constitution to add a constitutional right to privacy.
When people have wanted to discuss Roe, whether pro or con, I have always resisted any discussion when it is framed in the context of abortion. I have consistently clung to the notion (silly me) that what Roe has provided is choice, the ability for a woman to make the personal choice about what she wants to do when pregnant, however that occurs.
Because that’s what it is, a matter of personal choice, a private matter; it’s nothing that any government at any level has any business sticking its nose into. I have always said and always will say that I am “pro-choice,” nothing more, nothing else. It’s nobody’s business but the woman’s and whomever she chooses to share that decision with. I have no idea how many of my friends may have chosen to terminate pregnancies, and unless they tell me, it’s none of my business now and it wasn’t then. Those who oppose abortion have had the absolute right under Roe to carry a pregnancy to term. It’s their choice.
Yes, there was a leak (sh-t happens), but what about bigger issues: the overturning of Roe after 50 years of “settled precedent,” which was, at least when I was in law school in dinosaur times, the North Star of the law. And secondly, the denigration of women, once again, or perhaps I should say “still.” The “don’t worry your pretty little head about it,” the patronizing attitude that we women don’t know what’s best for us, an attitude that still endures in this country in the second decade of the 21st century.
There used to be a saying about women being “barefoot and pregnant.” Here we are, once again. Some women may be able to afford Manolos, but once Dobbs is decided, in many states no woman will be able to afford termination of a pregnancy for whatever reason. So much for privacy, so much for respect for women, so much for reproductive freedom, now to be decided by unelected jurists (one woman among them) who think that they know what’s best for us. What nerve.
Lyrics that Joni Mitchell sings in “Big Yellow Taxi” — “you don’t know what you’ve got till it’s gone” — ring out loud and clear here. Post-Roe, we were all complacent and confident of precedent. Not anymore. And I wonder how many unwanted children will wind up in foster care or elsewhere with the accompanying caterwauling about what a burden they are on the state. Please, cry me a river.
Heads up for gay rights: You may well be next. And while the Dobbs opinion has yet to be formally released, sitting shiva may be one of the appropriate responses.
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].
source: https://abovethelaw.com/2022/05/sitting-shiva-for-reproductive-freedom-in-america/
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