Additional reporting from Madison Lazenby and Eric Santomauro-Stenzel
The Supreme Court draft for Dobbs v. Jackson Women’s Health Organization leaked by Politico on Monday, May 2nd, 2022, has put many people in crisis. Just the idea of a leaked Supreme Court Draft is “staggering,” University of Georgia law professor Jonathan Peters says in the ABA Journal. Associate Professor of Government Gbemende Johnson sheds some light on the judicial process of drafts in Supreme Court assembly meetings: “Before a final opinion is released, the majority opinion writer regularly circulates drafts to the other justices. During this process, those in the majority can provide their suggestions/adjustments for the language on the opinion. Also during this process, the majority opinion writer could also include language in an attempt to persuade those who voted in the minority to join the majority, or to ensure that the voting majority remains ‘stable.’ The public has historically not been privy to this process amongst the justices and one question is how this leak could affect this process moving forward.” Because this process is so seldom revealed to the public, it is hard to estimate just how much opinions can change or how often they do.
What’s the constitutional law background to these cases that people keep throwing around? The case being debated now is Dobbs v. Jackson Women’s Health Organization, and the Supreme Court justices are deciding whether a 2018 law passed in Mississippi called the “Gestational Age Act”—which forbids all abortions after 15 weeks—is constitutional, considering that a fetus would not be viable at 15 weeks. To give some context for what this standard means, we have to look back to both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992): Professor Johnson reports, “Specifically, in Roe, the court noted…a state interest in maternal and fetal health; however, this interest had to be weighed against the ‘right to privacy’ (from the Due Process Clause of the 14th Amendment) afforded to women seeking abortion access. The Court used a trimester framework to measure a state's compelling interest to in restricting women's access to abortion. Specifically, the majority opinion held that the state's interest for instituting abortion restrictions was lowest in the first trimester, and highest in the third trimester. Casey maintained that women had a ‘right to privacy’; however, the decision did away with the trimester framework and instead instituted the ‘undue burden’ standard. Specifically, states could not pass laws that placed an ‘undue burden’ on a woman's access to abortion services—an undue burden being a ‘substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’ Critics of this decision argued that the Casey decision gutted Roe and the vagueness of ‘undue burden’ has made it easier for states to place restrictions on abortion access.”
Samuel Alito, the majority opinion writer, contends that the Mississippi law does not place an undue burden on people seeking abortions—but he also rejects the notion that there is any right to abortion covered in the Constitution at all. Professor Johnson contributes, “The draft Dobb majority opinion authored by Alito states that Roe and Casey must be overruled and notes that the Constitution does not reference abortion. Citing a prior case, he also states that the Due Process Clause of the 14th Amendment protects some rights not mentioned explicitly in the opinion; however, ‘any such right must be ‘deeply rooted in this Nation's history and tradition’ and ‘implicit in the concept of ordered liberty’” (citing Washington v. Glucksberg 1997). Alito notes that abortion access does not fall within this category and his opinion called Roe “an abuse of judicial authority.”
On Thursday, May 5th, Hamilton students organized 20+ schools to gather on their own respective campuses and protest the outcome of the leaked draft. Jhoana Flores ‘24 of the Center for Intersectional Feminism (CIF) stood up with a megaphone as students congregated in the crowded KJ Circle to thank everyone for coming. Students wore green for the protest, which Flores said was inspired by the “Green Wave movement started by Latin-American activists in their countries in their fight for safe and legal abortions.” To the cheering crowd, she said, “This is a fight not only in the U.S., but a transnational struggle!” That would become a theme of the protest—uniting people of many different identities, all of whom carry their own unique reasons for supporting the pro-choice movement.
Students marched from KJ Circle all the way down Martin’s Way to the library, and then back to Dunham Tent. Among the chants taking hold of the crowd were, “No church! No state! The people shall decide the fate!”, “Hey hey! Ho ho! Your backwards views have got to go!”, and “Keep your rosaries off my ovaries!”
Students took their seats in Dunham Tent, filling almost all the tables. Speakers came up, one by one, to share in the anger and hurt felt by the nation. Several students talked about their experience with disability and the fear they feel, knowing that, in the words of Basil Brown ‘24, “Reproductive freedom is…it’s life and death.” Brown spoke on their own experience with disability, saying, “If I got pregnant and I did not have access to a legal, safe abortion, I could be dead within the year.”
Hollis Mann ‘24, an E-Board member of CIF, also spoke on this topic, saying, “I’m going to be blunt—due to a complex web of health problems, like heart and kidney malformations, if most people with Turner’s Syndrome get pregnant, it will probably either kill them or damage their body irreparably.” Medical conditions and disabilities exist in a host of different forms—but the reality of carrying a child to term when the pregnancy may harm the parent or the fetus sparked terror and outrage in the speakers’ voices.
Valuing a fetus more than the mother is something that Percy Mixson ‘24 pointed out is not universal—rather, the overturning of Roe v. Wade seems to be a “theocratic ruling steeped entirely in Christian ethos.” Under Jewish law, Mixson pointed out, abortion is entirely permissible and sometimes even a requirement. Jewish texts embrace the philosophy that life does not begin until first breath, and devotees are required to end a pregnancy if it threatens a parent's life. The speech raised questions about the influence of religion in American national tradition and the effect that it could potentially have on both American conceptions of morality and interpretations of the law.
Others spoke on the intersection of healthcare with race and class. Vesa Miftari ‘24, speaking with passion to a supportive and cheering crowd, said, “It is especially cruel to force birth in a country with no universal paid leave and unaffordable healthcare, especially when it is primarily low-income and poor individuals who receive abortions.”
Shi-Anne Morgan ‘25 spoke about the discrimination that Black women face in healthcare, quoting from the book Thick by Tressie McMillan Cottom to share a story that so many Black women can relate to from having their needs unmet within the medical system. Shi-Anne introduces, “[Cottom] knew something was wrong with her in her pregnancy, but the doctors continually would ignore everything she said…She says, ‘What so many Black women know is what I learned as I sat at the end of a hallway with a dead baby in my arms. The networks of capital, be they policies or organizations, work most efficiently when your lowest-status characteristic is assumed. And once these gears are in motion, you can never be competent enough to save your own life. That is how Black feminism knows the future.”
Others spoke on inclusivity and representation more generally. Nevaeh Gutierrez ‘25, a Student Assembly Representative for her year and Chair of the Assembly’s Justice & Equity Committee, said, “The current white feminist gaze of the women’s rights movement has overly dominated narratives of reproductive rights and does not adequately address the unique concerns of people of color.”
Some members who were invited to speak felt tokenized in the organizing process of this event and spoke out to that effect, like they were given a platform only to make the protest seem less centered on white cisgender women. Issues relating to abortion extend far beyond that population. Corey Bravo Sloan ‘25 said, “Trans people are not your tokens. I am not your diversity card. I am not here to bolster your protest’s diversity, to make your protest more well-rounded. I am not here to make you and your protest seem trans-inclusive.” In a separate interview, Corey critiqued the organization of the protest, saying, “My experience isn’t just being trans, obviously. Because I have other identifiers that impact my experience. And what it felt like was that I was only valued for being trans.” Corey also argues that the language used around discussions of abortion needs to include trans and non-binary individuals. He critiqued the phrase “birthing people,” saying that “the whole point is that not everyone who has a uterus can successfully give birth…. Changing it from ‘a person with a uterus’ to a ‘birthing person’ is way more dehumanizing because it’s like your sole purpose is to give birth.”
Some speakers included messages in their speech suggesting that abortion is an issue affecting all individuals, regardless of identity. For some, it’s simply an issue of bodily autonomy: Marvin Lopez ‘23, the Student Assembly Vice President, advocated, “It is about standing up against local, state, and federal governments when they try to make decisions regarding bodies that are not their own.”
Gwen Urbanczyk ‘22 took on a more sardonic tone—invigorating the crowd—as she said, “When anti-maskers say, ‘My body, my choice,’ that’s fine, because masks are partially about protecting other people… and, well, we don’t care about other people in America, do we?”
Others’ worries dwelled primarily on the precedent the Supreme Court could set with this case, as well as other protections covered by the “right to privacy” in the Due Process Clause of the 14th Amendment. Ilsaa Siddiqui ‘25 shouted passionately, “Overturning Roe v. Wade will cause many other privacy-protected amendments to be overturned. This includes interracial marriage. This includes gay marriage…This is not just about abortion.”
Felix Tager ‘23, the Student Assembly Treasurer, echoed these sentiments: “This Supreme Court case is setting a dangerous precedent related to the Privacy Clause… that could result in the overturning of gay marriage, Griswald v. Connecticut, and more.”
The slippery slope of protections left exposed by the potential overturning of Roe seemed to be a primary concern. Professor Johnson contributed her expertise to the question of the gay marriage case, Obergefell v. Hodge (2015): “In the draft opinion, Alito is explicit in saying that his analysis only focuses the issue of abortion. And there are important legal differences between Obergefell and Roe/Casey. Obergefell's holding rested on both the Due Process Clause and the Equal Protection Clause of the 14th Amendment. However, a common saying is that the Constitution means what the Supreme Court says it means, so technically, the Court could revisit the rulings in Obergefell and Lawrence [v. Texas (2003)] if enough justices agreed. And as we have seen, the Court has the capacity to overrule itself, and the conservative majority's preference align more with the dissents in Obergefell and Lawrence. However, given the current outcry over the draft opinion that upends 50-year old precedent; it's not clear to me whether some of the justices in the conservative majority would have the ‘political’ will to disrupt the holdings of Obergefell and Lawrence, even if they have the capacity.”
What the Court decides remains up to them. The Editorial Board of the Boston Herald critiques the protest as politically useless in influencing government decisions, since what matters is the way that individuals vote in their elections. But some students argue that action is meaningful even on a smaller scale. As Tager said at the end of his speech, “We need to put pressure on our institutions, and yes, that means Hamilton.” He specified that the College could provide free Plan B at the Health Center and free, confidential Uber rides to Planned Parenthood in Utica.
To these requests, Director of the Health Center Barbara Fluty replied in an email to The Monitor: “As Director of the Health Center, my goal is to remain unbiased when treating students and to respect the beliefs of all students that seek services and support from me, both pro-choice and pro-life. Having said that I would like you to be aware that the health center is having conversations about making Plan B available again in the future. However, this has not yet been finalized. In addition, it is my understanding that Student Transportation provides free transportation to any off-campus medical appointment and that Planned Parenthood is included as a service provider—their services are a valuable resource to many individuals within our campus community. Within the Health Center, we rely on them as a referral source for sexual health services that are beyond our scope of practice.”
President Wippman and Dean Martinez never responded for comment on these requests.
Many students at Hamilton seem to regard the protest as a success—both in cultivating solidarity across campus and in brainstorming ideas to change the local culture at Hamilton. Lucy Naughton ’24, a co-chair of the Center for Intersectional Feminism and one of the many organizers for the protest, reflected by saying, “I never in my wildest dreams thought we would have as big of a turnout as we did today, much less at other colleges, and I’m just filled with love and gratitude for everyone who’s been a part of it.”