Recent letters to the editor reveal the national fractures over the leaked Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade and nearly 50 years of precedent is alive and well in Summit County. From protests and passionate arguments (on both sides) to the complex constitutional issues at play, it is impossible to turn a blind eye to this very polarizing issue.
As a former law clerk in the State of Illinois who was tasked with writing the initial draft of these opinions, I found it exceedingly rare that a draft opinion would ever be changed with respect to the result. The justices typically discuss the case (and its merits from the briefs and oral arguments of each side) and then vote as to the result. A justice is assigned to write the opinion, and this is apparently where we are at today with Justice Alito’s draft. At this point, I would expect that at least four (and possibly five) other justices agree with this result. The other three (or four) who do not agree with the result can (and will) write one or more dissents and point out why the majority opinion is wrong. My guess is that the decision to reverse Roe has already been made and that the opinion will actually be fairly close to the draft version circulating among the judges.
The decision in Roe is 49 years old and was written by a Republican-appointed justice. It determined that although not explicitly written there was a right to privacy implicit in the 14th Amendment of the US Constitution. In Dobbs, the Court changes its mind and says such rights are not guaranteed by the US Constitution and that instead it will be incumbent upon each individual state to determine to what extent reproductive rights extend to women within the geographical boundaries of the state. Yet, it is important to understand that reversing Roe isn’t really about preventing abortions. Instead, it concerns a right of privacy for all Americans, men and women alike.
This will get very messy and ugly real fast (if it hasn’t already). However, there will be a “winner” in this soon-to-be very regulated and litigated issue: lawyers. Who do you think will be making arguments to various courts to seek further “clarification” of other privacy decisions based on the same component of the non-explicit right to privacy? For the last 100 years or so, the Court has recognized a broad (and expanding) interpretation of privacy in the sense that it has typically wanted to restrict the government from interfering with personal decisions. These personal decisions often involved marriage, procreation/contraception, child-rearing/education and medical decisions. To suggest that one or more of these “given” rights to privacy will be under serious attack soon would be an understatement, especially if past performance of lawyers is any indication of what the future holds.
Of course, there will also be ramifications for a subset of our population that has been discriminated against since the Constitution was ratified about 230 years ago: women. When we turn back the clock to this historical period that is being used to support the reversal of Roe, women were not permitted to vote, and once married were not permitted to legally own any property or have any rights independent of her husband. Single women were treated differently in that they were permitted to own property, including real estate, along with personal “property,” which of course included slaves (as the 13th Amendment was not put into play until 1865, or about 75 years after the founding of this country). Why would we want to use this point in history as a reference point for women’s reproductive rights today?
Women of child-rearing years will also find themselves in the middle of many civil and criminal court battles over the status of their reproductive organs. Physicians, clinics and the women themselves all become potential targets in lawsuits. What happens when a woman receives abortion pills or contraceptive devices prohibited in her home state from a state where no such prohibition exists? Can you criminalize the conduct of a woman who travels across state lines to obtain an abortion or other reproductive services? What type of will be needed to obtain convictions, such as access to private medical records, text messages, travel logs, credit card and bank statements, along with proof from friends and relatives?
Without this Constitutional right, it is now possible to pass a federal law which would mandate that no state could guarantee this right or that such a right to reproductive freedom is not guaranteed for anyone in the US, no matter where you live. If you haven’t read “The Handmaid’s Tale” (or streamed the excellent series), you may have a tough time imagining what a society would look like when all privacy laws have been rescinded.
Instead of trying to see how much we can criminalize or otherwise litigate pregnancy, we should instead be focusing on how better to serve those women who do decide to bear a child. It is estimated that there are 43.5 million women (ages 15-50) in the United States who are moms to more than 95 million children of all shapes, sizes and colors. We need to make sure that as a society, we can all agree that women’s health is not just some dream but a reality.
The Summit County Health and Human Services Department has its Women, Infants and Children program that focus on health issues for pregnant women and those with children under age 5. These programs are free of cost (with income limitations). The Summit Cares clinic in Frisco also provides womens health services, and its website states that “no patient will be denied serviced due to inability to pay.”
Although There are no current Planned Parenthood clinics in Summit Countythere are a number of clinics in Colorado, including ones in Denver, Boulder, along with Glenwood and Steamboat Springs.
There are of course additional providers that will require insurance or other means to pay for the services. But the common denominator is that there are choices here for all women, including and especially for women of child-rearing age. At least for now. I would suggest though that a fight for control over reproductive rights and freedoms is not over — not here in Colorado or in any other state. I would suggest that it is just beginning.
Scott M. Estill’s column “Challenges Choices Changes” publishes bi-weekly on Thursdays in the Summit Daily News. Estill is an attorney, author and public speaker who spends his time in Dillon when not or traveling to legal matters in Denver. He can be reached at email@example.com.