Roe v. Wade v. the Reactionaries

Over the next weeks, The Blue Review will focus on the right to choose and the lives of women before that right was recognized. We’ll hear from people in New Mexico recalling the difficult times before Roe v. Wade, as well as from those who can evaluate the prospects of an anti-choice world. We’ll talk to people protecting choice and people supporting women as they navigate health care systems involved in the decision whether to have an abortion. It may seem a grim topic, but the Supreme Court’s willingness to consider withdrawing a fundamental right makes discussion necessary.  

By Jennie Lusk

On the first day of December, a month when some celebrate a virgin birth, a fundamentalist Christian woman on the Supreme Court asked why “safe haven” laws allowing anonymous mothers to leave their newborns in a neutral location wouldn’t suffice to make abortions unnecessary. 

With a good deal of grace, lawyer Julie Rikelman on behalf of Jackson Women’s Health Organization (JWHO) answered that being denied the right to choose is not about whether to raise a child but whether to give birth to one. It’s possible that Justice Amy Coney Barrett thought that eliminating the right to choose wouldn’t be so bad if safe haven laws, which New Mexico has had for more than 20 years, were widely available.   

U.S. Solicitor General Elizabeth B. Prelogar, who clerked for Justice Ruth Bader Ginsburg and attorney general Merrick Garland when he was on the D.C. Circuit Court of Appeals, presented the Biden administration’s view as a friend of the court supporting JWHO. The Department of Justice is now led by Garland, whose nomination to the high court by President Barack Obama was never even heard. The argument on behalf of Mississippi was made by its new solicitor general, who not so long ago attempted to prevent a woman held in civil immigration detention from getting an abortion she had the financing, transportation, and the right under law settled since 1973, to access. The Court was challenged by Mississippi expressly to overturn the case that recognized a woman’s right to control her own body, at least before a fetus becomes viable. The three Trump appointees on the Court after Barrett replaced Ginsburg, have helped the Court swing from conservative to likely reactionary.  See The New Rule of Six, The December 1 arguments may mark a return to the bad old days.

New Mexico statutes and case law, bolstered by the 2021 repeaI of our criminal abortion statute, recognize a woman’s bodily integrity even if the high court overturns a half-century of jurisprudence supporting the right to choose—unlike 21 other states. “We’re good,” as they say–except that Texas women now compete with New Mexicans for reproductive health care, and except that most of us have loved ones in states where women may lose the right that represents conscience, autonomy, and bodily integrity.  Some of us remember pre-Roe life and the unsafe procedures we saw our loved ones survive. As Democrats we can be grateful that the awesome power of the current executive branch understands choice as fundamental, and we can continue in our resolve to work to maintain the right to choose.