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Separate—and still unequal: Overturn of Roe reaffirms women’s lack of constitutional representation

Published by the Fort Wayne Journal Gazette on 6/19/22

Written by Laurie A. Gray, J.D.

The draft opinion by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization suggests that the only Constitutional right guaranteed to women is the right to vote under the 19th Amendment which passed in 1920. Though focused on abortion as a medical procedure, the leaked opinion is the first case in 100+ years to emphasize that women in the United States do not have the same civil rights and liberties as men.

The opinion claims that the fundamental error in Roe v. Wade and Planned Parenthood v. Casey was the idea that abortion was about a woman’s right to make decisions about her own body and the “potential life” interests of the unborn. (Draft, p. 31). The interests of women and children, born or unborn, were not recognized by the original Constitution or even the 14th Amendment when it passed in 1868.

Justice Alito provides a thorough review of constitutional law, criminal law, and common law to demonstrate and conclude: “Until the latter part of the 20th century, there was no support in American law for a constitutional right to abortion. Zero. None.” (Draft, p. 15). This is because, legally speaking, no “person” in America ever got pregnant or could assert a right to terminate that pregnancy until 1920 when the 19th Amendment passed giving women their first constitutional recognition as a “person” by allowing them to vote.

After 1920, a series of Supreme Court decisions leading up to Roe gradually acknowledged a woman’s right to control her own body with regard to reproduction even though no such right exists for women in the actual text of the Constitution. The draft opines that abortion is a states’ right issue (like slavery) and “the authority to regulate abortion must be returned to the people and their elected representatives.” (p. 65).

As it stands, the US Constitution does not guarantee women the same rights and protections as men. Now is the time for Congress to pass the Equal Rights Amendment prohibiting discrimination based on sex. Every member of Congress should be called upon publicly to acknowledge women as full citizens, and every State must ratify the equality of women or answer for their refusal.

When it comes to human rights, the United States has fallen far behind the rest of the world. The vast majority of United Nations members have a written constitution that guarantees equal rights for women. Although the US has signed treaties protecting the universal human rights of women in 1980 and of children in 1995, Congress has never ratified either treaty. It is time for Congress to ratify the United Nations Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child.

In the meantime, women in Indiana have greater protection under the Indiana Constitution than what our US Supreme Court concedes under its originalist interpretation of the US Constitution. In 1984, Indiana amended its Constitution, changing the word “men” to “people” so that the Indiana Bill of Rights applies equally to women. Women in Indiana have the same inalienable right as men to life, liberty, and the pursuit of happiness under Article 1, Section 1. And no law can interfere with a woman’s religious beliefs or rights of conscience under Article 3.

No man in Indiana can be forced to donate bone marrow, a kidney or even blood to a family member who is a perfect match no matter how safe the medical procedure or how certain it is that the family member will die without the donation. Likewise, no woman in Indiana can be required to place her life, health, and personal security at risk to save another person. Neither can a State’s interest in an embryo or fetus exceed its interest in protecting the constitutional rights of a living, breathing human being.

We can only hope that our Indiana Supreme Court will uphold the Indiana Constitution when presented with the issue.

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