Wednesday, May 4, 2022

A Room of My Own: Roe v. Wade – Then and Now

the clinic
under a slate-gray sky
protesters shouting
at counter protesters
with their arms linked

outside the closed clinic ...
a teenager
stretches her hand to catch
falling rose petals

the space telescope
launched to explore the birth
of this universe ...
safe haven baby boxes
wrapped in Mississippi sunset

bans off our bodies
as firm as marble steps ...
against the Supreme Court
a phalanx of women

once shouting 
my body, my choice, my life
in the pandemic ...
the MAGA crowd chant, Hey, hey. Ho, ho. 
Roe v. Wade has got to go 
(FYI: MAGA stands for Make America Great Again)

anger boils
over the Roe v. Wade leak
on TV
Afghan women covered 
head to toe in black
(FYI: The Washington Post, May 7,: Taliban orders head-to-toe coverings for Afghan women in public)


1 My tanka sequence,  Roe v. Wade – Then and Now, was written in response to the shocking leak of a draft of a Supreme Court majority opinion as well as a WARNING to complacent Canadians, especially to constitutionally ignorant Prime Minister Justin Trudeau who assured Canadian women yesterday by the following tweet:

Every woman in Canada has a right to a safe and legal abortion.

FYI: Why Canada's Roe v. Wade didn't enshrine abortion as a right: Experts say landmark 1988 ruling — R. vs. Morgentaler — did not establish abortion as a charter right, CBC News, May 4, 2022

... while there are no laws barring women in Canada from having an abortion, it's also not considered an enshrined right in the Charter of Rights and Freedoms, as it has been in the U.S. Constitution since their top court's 1973 ruling.

"That's going too far," Bernard Dickens, a professor emeritus of health law and policy at the University of Toronto, said about Trudeau's use of the word "right."

... That's because, technically speaking, no Supreme Court in Canada has ever said in a majority decision that a woman has the constitutional right to an abortion, said Daphne Gilbert, a University of Ottawa law professor who specializes in criminal and constitutional law...

Scrapping Roe v. Wade would mean that, in regards to abortion, Canada and the U.S. would on the surface be similar — in that neither country would have a Supreme Court case enshrining the right to abortion.

2 The US safe-haven laws allow parents to anonymously surrender their babies. These safe-haven laws were questioned in the Supreme Court hearings for Dobbs v. Jackson Women’s Health Organization (the Mississippi case about a "fifteen-week abortion ban, with no rape or incest exception"). On Monday evening, "Politico published a draft of a Supreme Court majority opinion written by Justice Samuel Alito that would overturn Roe v. Wade, the landmark 1973 decision that guaranteed a constitutional right to abortion in certain circumstances, and limited the ability of states to ban abortion procedures" (For more, see "Unpacking the Draft Supreme Court Opinion Set to Overrule Roe,"  Isaac Chotiner, The New Yorker, May 3)


  1. Below are the excerpts from two articles published on "The New Yorker," May 4:

    Within a matter of months, women in about half of the United States may be breaking the law if they decide to end a pregnancy. This will be, in large part, because Supreme Court Justice Samuel Alito is surprised that there is so little written about abortion in a four-thousand-word document crafted by fifty-five men in 1787. As it happens, there is also nothing at all in that document, which sets out fundamental law, about pregnancy, uteruses, vaginas, fetuses, placentas, menstrual blood, breasts, or breast milk. There is nothing in that document about women at all. Most consequentially, there is nothing in that document—or in the circumstances under which it was written—that suggests its authors imagined women as part of the political community embraced by the phrase “We the People.”

    -- Jill Lepore, “Why There Are No Women in the Constitution,”

    Just in time for Mother’s Day, a draft of the majority decision in Dobbs v. Jackson Women’s Health Organization, the Supreme Court case focussing on the constitutionality of a fifteen-week abortion ban in Mississippi, was leaked to Politico, which published it on Monday night. In the draft, Justice Samuel Alito repeatedly cites the Fourteenth Amendment, which specifies that any right conferred by its due-process clause must be “deeply rooted in this Nation’s history and tradition.” The right to an abortion—which Roe v. Wade and its successor, Planned Parenthood v. Casey, ascribed to the due-process clause—has no such roots, Alito argues. “Until the latter part of the 20th century,” he writes, “there was no support in American law for a constitutional right to obtain an abortion. Zero. None.” Alito is entirely correct that, in 1973, the Supreme Court was somewhat out of step with its time in codifying women’s rights. When Roe was decided, a married woman in the United States needed her husband’s permission to get a credit card, something that did not change until 1974. No state outlawed marital rape until 1975. No man was found liable for sexual harassment until 1977. Pregnancy was a fireable offense until 1978. Alito does not itemize forms of gender-based subjugation that persisted after Roe, many of which might be persuasively argued as “deeply rooted in this Nation’s history and tradition.” But the history of such discrimination offers helpful context for why some conservatives might have seen the legalization of abortion—and the freedom that it conferred on women—as so radical, so potentially destructive to the social order, that they would spend nearly fifty years working toward its reversal.

    --Jessica Winter, "What’s Missing from Alito’s Decision to Revoke the Right to Abortion"

    1. Chief Justice John Roberts confirmed on Tuesday the authenticity of a leaked draft opinion suggesting the Supreme Court plans to overturn Roe v. Wade — and called it an “egregious breach” of trust.

      In response, Roberts said: “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way.

      “We at the Court are blessed to have a workforce — permanent employees and law clerks alike — intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.”

      The chief justice said he has “directed the Marshal of the Court to launch an investigation into the source of the leak.”

      -- excerpted from Chief Justice Roberts confirms draft Roe v. Wade opinion, orders leak investigation, Yahoo! News, May 3

      This leak (most likely by [so-called progressive] one of the Justices) is the worst case of "the end justifies the means," like a heat wave to fuel this ideologically charged debate.

      And the Justices Brett Kavanaugh, Samuel Alito, Amy Coney Barrett, Clarence Thomas and Neil Gorsuch previously stated that Roe was an "important precedent" and that they accepted "the law of the land." Now all of them want to overturn Roe V Wade.

      This Is America, the oldest "democratic country" in the world.

  2. Below is excerpted from "What access to abortion looks like across Canada," "The Globe and Mail," May 4,

    There are no federal laws governing abortion in Canada – it was decriminalized in 1988 – but access has long been an issue. The ability to procure an abortion is often closely tied to where a person lives and their ability to navigate an often complex health care system...

    ...In this country, abortions are typically performed in stand-alone clinics or hospitals, many of which are located in urban centres. This means many who want to terminate a pregnancy have to travel long distances, which is difficult for people who have limited financial resources, lack transportation or child care, or are unable to take time off work. In New Brunswick, for instance, the government does not fund abortions performed outside of three hospitals in Moncton and Bathurst, meaning those in the capital of Fredericton or elsewhere in the province have to travel for the procedure...

    According to the advocacy group Action Canada for Sexual Health and Rights, crisis pregnancy centres (CPCs) – anti-abortion organizations that provide counselling and other prenatal services – outnumber abortion providers in Canada. Many CPCs exist in smaller communities where there are no abortion providers or sexual-health centres.

    Mifegymiso, better known as the abortion pill, was seen as a solution to many of the geographical constraints...The medication hit the market in 2017 – Canada was one of the last developed countries to approve it – but some provinces placed onerous restrictions on how and where it could be prescribed. Many patients also reported that their health care providers simply wouldn’t prescribe the medication, instead sending women to abortion clinics that were sometimes hundreds of kilometres away. As a result, many prescriptions continue to be written by abortion clinics.

    1. The New Yorker, March 27, 2017: "Why It’s Become So Hard to Get an Abortion:" When you can’t ban something outright, it’s possible to make the process of obtaining it so onerous as to be a kind of punishment, accessed at

      ... In a clear and persuasive new book, “About Abortion” (Harvard), Carol Sanger, a professor of law at Columbia, explores the roots and the ramifications of this chastening regime. “Much of current abortion regulation operates to punish women for their decision to terminate a pregnancy,” Sanger writes. “This is so even though abortion has not been a crime since 1973, and even then, women themselves were rarely included within criminal abortion statutes.” When you cannot ban something outright, it’s possible to make the process of obtaining it so onerous as to be a kind of punishment, Sanger argues, drawing on the ideas of the legal scholar Malcolm Feeley.

      Consider the rise of Women’s Right to Know laws, a cornerstone of Sanger’s argument. Since the mid-nineties, such laws have been enacted in twenty-six states. They require that a pregnant woman seeking an abortion have an ultrasound of the fetus. In all but one of those states, she must be asked if she wants to look at the image. Some state laws require that her decision to look or not to look be noted and retained in her medical record. Six states—North Carolina, Oklahoma, Kentucky, Louisiana, Texas, and Wisconsin—go further: the monitor must be turned so the patient can see it, and the physician must narrate in detail, and in real time, what he or she is seeing. (The laws in North Carolina and Oklahoma are currently enjoined.)...

      But mandatory ultrasound laws are insidious. They proceed, first of all, from the notion that women don’t realize that in choosing an abortion they will be ending some form of life, however they think of that life. Considering that nearly sixty per cent of women who have abortions have already given birth at least once, and so know something both visceral and emotional about pregnancy, fetal development, and childbirth, this is quite an assumption. Framed as a “right to know,” the ultrasound obligation becomes even more disingenuous—“the right,” as Sanger neatly puts it, “to be persuaded against exercising the right you came in with.”

      Another premise of the ultrasound laws is that women can be saved from their lack of knowledge and spared a lifetime of crippling regret. The idea that in undergoing abortion women experience something tragic and specific called “post-abortion syndrome” has been a linchpin of the anti-abortion movement in recent years. Like the claim that there is a link between abortion and breast cancer, this has been effectively refuted. A meta-analysis by the American Psychological Association found no evidence to “support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors,” such as a prior history of mental illness. A 2011 review of scholarly evidence by the Academy of Medical Royal Colleges, in the U.K., found that “rates of mental health problems for women with an unwanted pregnancy were the same whether they had an abortion or gave birth.” Yet eight of the seventeen states that require counselling for women before an abortion stipulate that the counselling must include information on the procedure’s long-term mental-health consequences; five states say that it must cover the discredited link between breast cancer and abortion. This is not informed consent but ill-informed consent, with a side of coercion.