May 3, 2022

Since 1973, 49 years ago, every woman in our country has had the right to choose what to do with her body. As we all learned last night, that right may come crashing down if the Supreme Court’s draft opinion leaked last night does in fact come true and the Court reverses the Roe v. Wade decision.

This is a seminal moment in our nation’s history. I have tried to wrap my head around the potential decision and the impact it will have on our country. It will be momentous, though in an abominable manner.

I cannot remember a similar situation where the court reversed a prior decision that formed the basis for the right to privacy and a person’s individual liberty to act. The Court has reversed many decisions that limited privacy rights, or restricted a citizen’s rights to be treated equally, but this may be the first decision that would take away personal rights that have been guaranteed for nearly half a century.

The Roe decision not only forms the basis for all subsequent decisions regarding the right of a woman to choose but other matters that are now considered “settled”: the right to acquire and use contraceptives; the right to engage in private, consensual sex acts; and the right to same sex marriage. If Roe is overturned, each of those rights is also at risk, no matter how ingrained they may be in society today.

If the draft opinion becomes the law of our land, it will inevitably lead to the death of women who will not be able to have a safe procedure in their home state. The history of our nation pre-Roe confirms that fact. For those who claim to be “pro-life,” I do not understand how they can celebrate a potential decision that will lead to that result.

For the life of me, I also do not understand how any man can tell a woman what she can do with her body. If the tables were turned men would be howling in protest.

To those who claim the leak of the draft opinion is the true story here, while the leak of a Supreme Court decision prior to its issuance has not happened in more than 100 years, it has happened before and no will die from it. The decision will inevitably result in the death of our fellow Americans if it comes true.

The leak is not good for the decorum and rules of the Court, but it isn’t deadly. The decision will be.

To those who say that the right to choose or prohibit choice is a “state’s right” issue, it isn’t. The 14th Amendment of the Constitution ensures that we are provided equal protection under the law regardless of what state we reside in or are just visiting. We are one nation and we should be treated as such on this key issue.

“State’s rights” is also the key phrase that has been used in the past to limit a person’s rights, whether it was miscegenation laws to prohibit inter-racial marriages, Jim Crow laws to legalize segregation, or so many other laws to prohibit a person from enjoying the freedoms that others have.

This is not a protection of “states rights.” It is the destruction of an individual’s rights.

To those who say we should interpret the Constitution based on the founders’ original intent, the Founders of our nation always assumed the Constitution, and the interpretation of it, would evolve. The Constitution was always meant to be a “living, breathing” document that changed with the times, so much so, it was immediately amended to add the first ten amendments which primarily protect one’s individual rights.

Very shortly after the Constitution’s passage, in the seminal case of Marbury v. Madison (1803), the Supreme Court declared an act of Congress unconstitutional. The right of the court to do so is not codified in the Constitution but is considered the bedrock of judicial interpretation and review. Why? Because of the view that the Constitution can be interpreted to allow rights or actions that are not specifically enumerated therein.

Furthermore, the Founders were not infallible. Many owned slaves and they memorialized slavery in the Constitution by noting all non-free persons were to be counted as “three-fifths” of a free person. I would hope no one in their right mind would advocate that we return to slavery because it was the Founders “original intent.”

The last 2 Republican presidents have been elected with a minority of votes, but a majority of electoral college votes. Based on the expected majority vote in the draft opinion, at least four justices, and maybe five, were nominated by those two presidents: Samuel Alito and John Roberts by George W. Bush and Neil Gorsuch, Brett Kavanaugh and Amy Comey Barrett by Donald Trump.

A little more than a year ago there was a treasonous insurrection to overturn the result of our presidential election and, later that same day, 147 Republicans (139 representatives and 8 senators) voted to decertify the results of the Electoral College results. What guarantee do we have that a future election won’t be overturned because the majority party in Congress at the time doesn’t like the results? Based on recent history, it appears no guarantee exists.

As I have been thinking about the implication of the potential reversal of Roe, I have thought about one of the earliest stories of our nation’s creation. When asked what form of government was created after the Constitutional Convention on 1787, a republic or a monarchy, Benjamin Franklin allegedly said, “a republic, if you can keep it.”

Our nation is at a crossroads. It is not hyperbole to say we are at one of those “if you can keep it” moments.

I do not know what the end result will be. However, I know I will fight to ensure the rights and nation we hold dear are not torn apart and I ask everyone else to do the same. It is that important.

Copyright Mark C. Poloncarz 2022, All rights reserved.