36 WWW.LAWYER-MONTHLY.COM | AUG 2022 Reactions to the Supreme Court’s Decision in Dodds For the past 50 years, Roe gave women the assurance of a right to control one’s body and make the personal decisions impacting the rest of their lives. The change that occurred in June has been described as “seismic” by at least one constitutional scholar. Particularly because responsibility falls on women to give birth and more often than not to raise children, the notion that a slim majority of Justices or legislators who are overwhelmingly male can dictate when and how many children a woman will have is fundamentally offensive to people who grew up believing they held that right. Frank conversations among friends anecdotally support the conclusion that one’s ability to choose when to bear children has resulted in dramatic improvements in the education and achievements of the women we know. Innumerable personal stories reveal the profound impact an unwanted pregnancy would have otherwise had in people’s lives. Men who cannot bear children do not confront this life-determining dilemma, one that frequently occurs alone or from circumstances outside a woman’s control at a pivotal point when pursuing work, education or even a healthy relationship. Most students of constitutional law would agree that the analysis of Roe is uneven and creative, a bold statement about what occurred historically in the years leading to the 1970s. The result of that decision seemed right, though, based on paradigm shifts occurring since the Constitution was adopted during the Enlightenment period of the 18th century. As Justice Ruth Bader Ginsburg noted, legislative initiative could have supported that outcome by aligning the right that Roe recognised with mainstream values of the American public. A “breathtaking decision” in effect replaced the legislative process. Throughout history there are numerous examples of dramatic shifts in the Court’s constitutional interpretations, as well as amendments made to patch up shortcomings of the Constitution as ROE V WADE: THE LEGAL PERSPECTIVE written. While some tout the primacy of the American democracy, the archaic nature of this Constitution could be a serious shortcoming impacting the agility of the country to move forward. Individuals For the past 50 years, Roe gave women the assurance of a right to control one’s body and make the personal decisions impacting the rest of their lives. protected by more recent constitutions and treaties, including states and other republics for instance, are better situated to address complex contemporary challenges – and magical thinking does not turn clocks back to colonial times. The action taken by the Supreme Court in June, abandoning longstanding precedent, has caused widespread disruption and international criticism, as well as deep scepticism about the legitimacy of this Court. It is no wonder that the Justices most outspoken against Roe are those with a pattern of disrespectful, inappropriate and even unlawful conduct towards women. The Court’s course is unlikely to alter anytime soon. Members of Congress and state legislators cannot dodge controversial issues but instead must demonstrate leadership by filling the void where the Court has indicated it will not. Through the thoughtful, diligent and proactive strength of its citizens, the American democracy must function to reestablish by advocacy, voting and legislation themost fundamental individual rights. It is time for our lawmakers to read the room and represent the people they serve through legislation, a powerful and legitimate process to overturn unwanted judicial precedent.
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