“For deliverance from all danger, violence, oppression, and degradation,”
Abortion has always been in my immediate discourse. My mother, a pro-choice Catholic, told me in high school about a friend dying from an illegal abortion. She would regularly ask her pro-life Catholic friends about why they were not protesting men’s role in reproductive sex—focusing solely on people who could birth as responsible alone for the fetus. I attended Catholic schools and was a vocal supporter of abortion—using the language of supporting abortion and not being pro-choice. I am still an active Catholic and I actively support abortion and denounce the Church’s positions to fellow Catholics.
In college a philosophy professor assigned my class Judith Jarvis Thomson’s “A Defense of Abortion.” Thomson does not provide an outright support of abortion, but she does argue that the fetus’ right to life does not supersede the pregnant person’s right to control their body. Rather than arguing for abortion, it is better to characterize her argument as one in favor of a right to stop being pregnant. In a country that still fails to provide meaningful access to health and child care, how can we deprive women of that right?
The support for rights to abortion access have been combed over by many schools of thought and ethical theorists. The number of legal abortions in 2019 was roughly 630,000. The CDC reports from 2010 to 2019 the rates of abortion dropped to 13%. The majority of abortions occur in early gestation, roughly 92.7% of all abortion were performed under 13 weeks of pregnancy. Moreover, the majority of Americans, 59%, support abortion in all cases. The split between abortion perspectives is largely partisan. The fact that abortion is a partisan concern, rather than a legal one, is disturbing.
Justice Brett Kavanaugh said that Roe v. Wade was based upon strong precedent. Many of the new justices on the Court have appeal to the importance of stare decisis—the legal principle of utilizing precedent in legal decision-making, rather than interpreting the law in light of current affairs. Such an approach would make it likely that Roe v. Wade would be upheld. It seemed, for a moment, after Justice Gorsuch ruling in favor of using Title VII to protect gay and transgender workers in Bostock v. Clayton County, that judges would indeed refer to the law, rather than their own perspective. However, potential overturning of Roe demonstrates that the prospect of a nonpartisan Court is nothing but a liberal fantasy.
Judicial activism, the interpretation of the Constitution in light of contemporary culture, may often be seen as a space of hope. However, judicial activism has led to decisions as cruel as Korematsu v. United States, which upheld World War II Japanese Internment camps. Justice Hugo Black, who wrote the opinion for the case, would go on to support Brown v. Board of Education. Both cases are representative of judicial activism. Both cases demonstrate that judicial activism often is a response to social outcries. Whereas judicial restraint often upholds normative interpretations of the law as it was intended to be interpreted. These two views present us with the fact that the Supreme Court is not separate from the pressures of society or of institutional biases. Rather it is often swayed by these forces and reacts in light of them.
The Court’s cruelty is undeniable—poor and marginalized people who already rely on abortion funds for assistance will be further harmed. Scholar Martha Nussbaum asserts that the denial of abortion rights has a significant weight on equality “women, and not men, are being forced against their will to support fetal life.” In an academic paper she co-authored with Rosalind Dixon, she goes on to argue that preventing people from accessing abortion provides additional burdens and disadvantages to individuals who already face marginalization. Lack of access to abortion places significant burdens upon people who may need access to those forms of care—the aspect of being forced to be pregnant and give birth is time consuming, expensive, painful, and potentially traumatizing. It denies those individuals from important capabilities that allow them to live a life as they wish it, free from the legal burdens crafted from misogyny.
We live in hard times. I have not needed an abortion, but I have been there as emotional support for friends who have needed an abortion. Pain is inescapable in a world living with flawed people. I know that many of us in America are hurting at this moment. We may not be fully surprised by the prospect of overturning Roe, but the pain still exists. We encounter pain and tragedy throughout our lives. And yet, goodness can also be there. I do not believe that we should quiet our sadness or our anger in response to the Court’s cruelty. Rather, I believe that it is more important than ever that we cultivate community and care. We will need these things in the times to come. There is, I believe, wisdom even in this suffering. The wisdom we can gain from this is that which we have always turned to in times of State violence—we must care for one another. As the Catholic theologian Thomas Aquinas reminds me, an unjust law is no law at all. It is an act of love, of caritas, to reject the unjust undoing of Roe and to continue to help our neighbors who need access to abortions. The wisdom from the awful grace of God is that caritas transcends what is legal and often requires a turning away from the State and a turning towards our neighbors.
Love and solidarity,
Riley Clare Valentine
Riley Clare Valentine is a Ph.D. Candidate in Political Science at Louisiana State University. Their research revolves around language, politics, and care ethics as a response to neoliberalism. They are an educator.
 Judith Jarvis Thomson, “A Defense of Abortion,” Philosophy & Public Affairs 1, no.1(1971).
 CDC, “Abortion Surveillance,” https://www.cdc.gov/reproductivehealth/data_stats/abortion.htm ; Statista, “Number of Legal Abortions Reported in the U.S. from 1973 to 2019,” Statista, https://www.statista.com/statistics/185274/number-of-legal-abortions-in-the-us-since-2000 ; Hannah Hartig, “About Six-in-ten Americans Say Abortion Should be Legal in All or Most Cases,” PEW, May 6 2021, https://www.pewresearch.org/fact-tank/2021/05/06/about-six-in-ten-americans-say-abortion-should-be-legal-in-all-or-most-cases/
 Tierney Sneed, “Brett Kanavaugh, Who Touted Importance of Precedent During Confirmation Fight, Downplays it As He Considers Reversing Roe,” CNN, December 2 2021, https://www.cnn.com/2021/12/01/politics/kavanaugh-abortion-precedent-roe-mississippi/index.html
 Martha Nussbaum, “Is Privacy Bad for Women?” Boston Review, April 1 2000, https://bostonreview.net/articles/martha-c-nussbaum-privacy-bad-women/ While Martha Nussbaum uses the gendered language of women and men, I think it is better to think of abortion in terms of individuals who may utilize or need to utilize abortion services.
 Rosalind Dixon and Martha Nussbaum, “Abortion, Dignity, and a Capabilities Approach,” 2011: 13.