Roe v. Wade: It’s about Abortion, but It’s about Much More
Mel Eichelbaum
by Mel Eichelbaum
On May 2nd a draft opinion leaked out from the U.S. Supreme Court. The draft opinion by Justice Alito joined by Justice Thomas, and the three Trump appointed Justices: Gorsuch, Kavanaugh, and Coney-Barrett, forming a new radical right-wing majority, indicated they would overrule the Roe v. Wade case, eliminating nearly 50 years of judicial precedent which guaranteed American woman reproductive rights to have control over their own bodies and to terminate an unwanted pregnancy. Subsequently Chief Justice Roberts confirmed that the draft was authentic. And indeed on June 24, 2022, in the Dobbs case, the Court officially over ruled Roe v. Wade.
Roe v. Wade was decided in January of 1973, in a 7—2 decision by the U.S. Supreme Court. The majority opinion was written by Justice Blackmun (a Republican) and was joined in by both Democrat and Republican Justices. Despite the claims of Justice Alito who said Roe was incorrectly decided from the beginning, the bi-partisan Justices that decided Roe based their legal reasoning on sound judicial precedent under the jurisprudential doctrine of substantive due process. This Constitutional concept was neither wild-eyed nor inventive, but reflected sound judicial reasoning which had been used to determine many of the major civil rights cases in the 1960’s and 1970’s and beyond. These involved important individual rights such as the right to vote, the right not to be discriminated against in schools, the right to use contraceptives, the right of couples to have the type of sex of their choosing, the right to fair housing and not to be discriminated as to what neighborhoods one can live in, the right not to be discriminated against in public accommodations (such as stores, theaters, restaurants, and hotels); and the right to marry who you want (both the inter-racial and same-sex marriage cases) and many other individual rights.
By the Alito led new radical right-wing majority of the U. S. Supreme Court effectively wiping out this jurisprudential precedent and throwing everything back to a doctrine of “States rights”, potentially eliminates federal protection of many individual freedoms and rights that we have taken for granted for a long time and places them all at risk to an abusive power that can be exercised by the states. So even though one can see this isn’t just about abortion, abortion does present the flaming focus on just how abusive individual rights can be infringed upon by tyrannical state action.
For example despite the fact that Texas leads the nation as the number one state in teenage pregnancies, Texas allows little to no sex education in its schools, and in the last legislative session Texas passed SB-8, one of the most draconian anti-abortion bills into law. It forbids any abortion after six weeks of pregnancy (a time before most women even know they are pregnant). It makes no exceptions for cases of rape or incest, and offers a minimum $10,000.00 bounty for any citizen to sue the pregnant woman who is trying to seek an abortion, or anyone who helps her or even advises her-- a vigilante system of turning neighbor against neighbor that smacks all too similar to the “gestapo’ tactics used in Nazi Germany. Oklahoma recently passed a law even surpassing Texas making any abortion after fertilization illegal. But Texas quickly caught up with its trigger law, whereby Texas and some 26 other states placed such repressive trigger laws into effect making abortion illegal altogether upon Roe being over ruled.
So without any federal protected right to seek an abortion, a twelve year old girl impregnated by the rape of her uncle would be forced to give birth to that child under current Texas law. The wealthy family might succeed in skirting around the situation by taking the girl out of the country to Europe or another venue where the abortion procedure could be safely performed before bringing the girl back home. But for many middle class and poor families such an option very well might be financially impossible; hence, bringing back the days of the back-alley abortions where the woman’s health and even life were put at grave risk, not to mention the potential criminal liability and/or civil sanctions by the vigilante system imposed by Texas and some other states.
Okay, so what does this have to do with the military, and why am I writing about it in a Jewish War Veterans’ Newsletter? Because it adversely affects members of the military and their families by lowering morale, putting them at an undue economic risk, as well as at an undue health risk, and in some instances a risk to their very lives; thus, adversely impacting over all unit preparedness and the ability to effectively defend our nation.
Active duty troops have a female component, and many military men have families with wives and daughters. These folks ordinarily do not get to choose their station base, and so very well might get sent to a base in a state that has such draconian anti-abortion laws such as Texas or Oklahoma. Indeed, Texas has the highest number of military residents of any other state in the nation. An existing federal law known as the Hyde Amendment makes it illegal for abortions to be performed at any military medical facility. Tricare, the health insurance provided to troops and military families doesn’t cover the cost of abortions at private clinics, either. So now you have hundreds of thousands of troops and military families, many of whom are not paid a ton of money to begin with, who, in dealing with an unwanted pregnancy, will have to cover the cost of abortion on their own, as well as covering the cost of travel out of state, a stay at a hotel and any additional recovery costs.
For women military members who find themselves pregnant with an unwanted pregnancy, they would have to get permission from their chain of command in order to leave to obtain this extremely private medical procedure. Some female service members cannot deploy while pregnant, and so a female service member who becomes accidentally pregnant or becomes pregnant against her will from a rape, without access to a safe, legal abortion, will not be able to deploy – taking her out of the fight, which harms military readiness.
For male military members who are married and have wives and daughters think of the morale factor in having to reside in Texas, where the women in their families if impregnated by a rape could not obtain a safe, legal abortion but would be forced to bear the child to birth. The man might very well feel helpless in being able to protect his own female family members, and one could easily surmise the adverse impact that would have on his performance ability and therefore the negative effects on morale and unit cohesion.
The Pentagon has become so concerned about this that they are now studying the idea of giving a military member, where possible, a choice of their duty post, if that member feels that the state to which they are being sent poses an undue risk to their health or the health of the members of their families. This could significantly impact the numbers of military members who would even be willing to serve at a a base located in Texas or Oklahoma for example. And one can only imagine the potential chaos that could cause.
From the Jewish perspective, the life and wellbeing of the mother was always placed above that of the unborn fetus, but Texas law does not do this.
The point is that when it comes to reproductive decisions, it should be a private choice made by the individual, her family, and her doctor, and not by Justice Alito, the State of Texas, or anyone else.
Article written for the JWV Quarterly Post 753 Newsletter. The views expressed herein are my own and are not necessarily indicative of other members of JVW Post 753 or that of of JWV Post 753 as a whole.