Today, as Americans commemorate the 35th anniversary of the Supreme Court’s Roe v. Wade decision that explained that the right to privacy includes a woman’s decision whether to continue or terminate a pregnancy, the right to reproductive freedom remains in great jeopardy. Just last year, the Supreme Court further undermined established precedent in upholding the federal criminal ban on certain abortions, a result that was made possible by President Bush’s appointment of archconservative judges John Roberts and Samuel Alito to the Supreme Court. Indeed, Justice Alito was confirmed by the United States Senate despite his judicial record of hostility to reproductive rights.
The detailed framework established by Roe v. Wade to protect women’s rights in tandem with the government’s interest in encouraging women to carry pregnancies to term is, in 2008, a shadow of its former self. No longer are restrictions subjected by courts to “strict scrutiny,” the standard applicable to restrictions on other fundamental constitutional rights. No longer is women’s health the clearly predominating factor in deciding whether a restriction passes constitutional muster. In fact, numerous less powerful groups in American society have even fewer rights: since 1980, low-income women who are eligible for Medicaid assistance for health care must fend for themselves if they need a medically necessary abortion; young women face arduous judicial bypass proceedings in many states as an alternative to forced parental contact; and a host of other restrictions make abortion the most heavily regulated health care service in the United States. Restrictions vary from one state to another – hardly the image we have in our minds of a basic right guaranteed equally to all Americans.
There is good news, though. There are steps we can take to protect our rights. First, we must insist that people nominated by the President to lifetime appointments on the federal bench– especially the Supreme Court – do not simply mouth respect for existing precedent protecting individual rights (as did Roberts and Alito), but have a track record of supporting those rights. Likewise, the Senate must reject any nominee who fails to meet this standard. Unfortunately, with President Bush having successfully appointed two justices to the Supreme Court who may serve for a generation to come, it is clear that we cannot count on the courts alone to protect reproductive rights and to advance reproductive justice. So, if the Court will not protect rights guaranteed by our Constitution, we must make sure that Congress and each state legislature will do so - whether by legislation or by constitutional amendment.
Now, as we reflect on all that has happened since Roe v. Wade, it is essential that we not forget the challenges that lies ahead. To join the fight to protect the rights of ordinary Americans, please visit the Alliance for Justice website, where you can read information about current nominees to the federal bench, sign up for our alerts, and learn more about how you can help to restore balance to our courts.