The Supreme Court’s ruling on the complex issue of abortion will likely be decided based on politics, Robert Gehrke writes

Giving lawmakers the power to control a woman’s reproduction eviscerates her rights and freedoms.

(Andrew Harnik | AP) Abortion rights advocates and anti-abortion protesters demonstrate in front of the U.S. Supreme Court, Wednesday, Dec. 1, 2021, in Washington, as the court hears arguments in a case from Mississippi, where a 2018 law would ban abortions after 15 weeks of pregnancy, well before viability.

Consider this: Sen. Mike Lee is ready — eager, even — to shut down the entire federal government of the United States because he thinks it is an unimaginable violation of one’s bodily sovereignty to have to be tested for COVID-19 on the job.

A swab in the nose is an indignation no American should have to endure. My nostril, my choice.

He’s fine, however, with the notion of forcing a young victim who has been raped or impregnated by a relative — or both — to carry and birth that fetus or suffer the consequences.

We know this because Lee went before the news cameras on the eve of a potentially pivotal abortion debate before the U.S. Supreme Court and made a big production that lawmakers alone should decide when the government can commandeer a woman’s body and force her to carry a child to term.

“The issue is whether people through their elected representatives should be able to decide how to protect human life and the life of mothers in the manner they deem fit,” Lee said.

(Francisco Kjolseth | The Salt Lake Tribune) Robert Gehrke.

So this is actually about the rights of legislators to control women, rather than the right of women to control their own bodies. But surely everyone agrees rape and incest are those rare exceptions when abortion should be allowed, right? Who could be so cruel?

Mississippi could. Because the Mississippi law that went before the justices Wednesday — the very same law that Mike Lee joined a legal brief supporting — had no such exceptions. Neither, it so happens, does the law passed by the Texas Legislature.

And it’s not just Mike Lee making this “states’ rights” argument that echoes back to the Civil War. It was the solicitor general of Mississippi who argued Wednesday that states should get to decide.

If that happens, Mississippi’s 15-week ban will be the start, and if you need proof of that, consider that Texas has a six-week ban and Utah has its own trigger law on the books that would practically ban the procedure altogether.

But none of this is really about weeks and trimesters and viability of the fetus. It’s about taking a right that has been recognized for 50 years — the right for a woman, within specific limitations, to determine her own reproductive destiny — and eliminating it.

As University of Utah law professor Teneille Brown explained to me after the court’s arguments Wednesday, if state lawmakers get the final say on the issue, then it’s not a right at all.

“That is the point of a right,” she said. “We don’t subject rights to a vote. Things like freedom, slavery, torture, we don’t kick that back to the states.”

The right to one’s reproductive choice is just one of many freedoms not spelled out in the Constitution: the right to vote, the presumption of innocence until proven guilty, the right to same-sex or interracial marriage, the right to privacy.

Like Roe, these have become part of our national fabric that Lee & Co. have been aggressively trying to unravel.

That’s not what Utahns want, according to Karrie Galloway, president of Planned Parenthood of Utah. Last year, Planned Parenthood hired Dan Jones & Associates to do a poll on the public’s attitude toward abortion and found that, if it was put to a vote, 52% would vote to retain Roe, and 80% said the state does not need stricter abortion laws.

At the same time, abortion rates in Utah have been falling — and could fall more if the state didn’t have such abysmal sex education and family planning funding, Galloway said.

“[Instead of] wanting to control women’s bodies, if we would solve the root problem like giving them health care to manage their reproduction, we wouldn’t have to be fighting tooth and nail about abortion,” Galloway said, “because women would have the tools they need to plan families.”

So what happens if the justices undo Roe, as they very well could?

If Mississippi’s 15-week ban stands, Utah has an 18-week ban in statute that would take effect. In Utah, nearly 95% of abortions occur before the 15-week mark (there isn’t data available for 18 weeks), so most abortions will not be impacted.

But the Mississippi case, as I mentioned, is a bait-and-switch, because you don’t get to the state bans without fundamentally overturning Roe. If that happens, Utah’s law would ban almost all abortions after a fertilized egg is implanted and make it a second-degree felony, punishable by 15 years in prison to perform one.

That is a standard that is not based in science or medicine. It’s driven entirely by politics, which is unfortunate because for five decades, the Supreme Court — Republican appointees, as well as Democrats — tried to chart a path that recognizes and balances those irreconcilable interests.

“It’s true that there is a disagreement over when life begins,” Brown said, “but there still is a woman. And there should be no disagreement that she is a person, a full adult with legal capacity and she has some autonomy.”

Women matter in this equation. Their autonomy and liberty matter. And if the justices brush that aside because of politics, they do a disservice to the court, a point that Justice Sonia Sotomayor captured well during the arguments.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she wondered. “I don’t see how it is possible.”

Return to Story