Nathan Baek, Writer
As a country based on divided lines of liberalism or conservatism, Democrats or Republicans, the United States is at the forefront of “Law in a Politicized World.” Politicization in controversial law takes a significant toll on justice by prosecuting based on executive favor; ultimately, obstructing the rule of law. Broadly, Americans visit the constitution in a non-partisan and bipartisan manner. However, with an unequal playing field prompted by politicians, Americans tilt towards political tendency. Regarding abortion rights in definition of the Supreme Court, Roe v. Wade (1973) is a milestone ruling, and thus the major step that first implemented the legal right to abortion. Five decades after the ongoing dispute, the major ruling met contempt from Texas’ SB.8 Bill.
Reproductive rights is an impending issue in the constitution as both parties polarize; likewise, the SB.8 Bill now concocts entire counternarratives in favor of self-perseverance instead of a Supreme Court Precedent. On behalf of the constitution, both caucus members shall not act in retaliation nor as political adversaries; yet, our constitution seems to allow representatives to skirt out of liability when they violate their oath.
Roe v. Wade is remembered as a sweeping landmark decision that gave a woman the green light to have an abortion if she so chooses. But through the correct lens, it’s actually a case about privacy, fetal viability, and state interest. State interest speaks on behalf of a state’s political attitude.
The SB.8 Bill went into effect with a 5-to-4 decision by the Supreme Court that opened the law to serve its purpose. The Supreme Court’s controversial decision left abortion recipients in a dilemma as the Supreme Court should have adhered to their precedent. The dilemma reverberated the political scheme and the DOJ. High officials were alarmed and thus imposed warnings to lawsuits to overturn the decision. Republicans were delighted, and Democrats were dammed—Republicans v. Democrats; likewise, abortion rights v. pro-life.
The short-term win and thus the loss of the DOJ sent shock waves to contested states and prospective disputes. The Pennsylvania Attorney General, the front-runner for the Democratic nomination, slammed his supporters that nominating a Republican candidate will enact the same extreme regarding the political divide. The politicization of abortion rights ripples through states, one by one.
In an exclusive discussion with Ms. Moriarty, a staff attorney for the Center for Reproductive Rights and a Harvard Law School graduate, she conveys her experience and prospective analysis of politicized justice. Ms. Moriarty has been directly involved in writing both types of documents, and she has personally participated in the filing of briefs in the most anticipated reproductive rights case in years, a Mississippi case titled Dobbs v. Jackson Women’s Health, which the Supreme Court will hear arguments on in the upcoming 2021-2022 term.
Her input signals a red flag that the political ripple will not stop, and she so-calls the danger as contagious. Regarding her state origin, Mississippi, the state awaits the controversial case to determine the life of abortion rights. Jackson Women’s Health is the only abortion clinic left in Mississippi, and with political contempt, the clinic faces criticism and physical disruption to the clients’ privacy rights.
Law in a politicized world regards privacy rights, precedent, and 14th amendment rights. The constitution alarms the threat posed by political integration in law. Hindering law by populist means is injustice as numbers (of people) are not the answer to justice — especially when populism violates one’s rights. The right which is contended is abortion rights, but there is a concrete right that shall not be hindered, the 14th amendment.
Griswold vs. Connecticut set a major setback to Roe v. Wade’s milestone ruling. Griswold dealt with contraceptives, including birth control; people thought this was complicated, and thus, doctors imposed contraception on married couples, outlawing the constitutional law. Yet, there is no specific amendment that says there is a right to privacy; nevertheless, the constitutional amendments encompass the idea of the right to privacy. In a subsequent case, not being married, the Court ruled that people have the right to express themselves with privacy no matter their wedding status. The protection of the amendments was pivotal to reproductive rights, the precursor to Roe v. Wade; and the right to privacy was found in the 14th amendment (right to abortion). Aside from abortion itself, the controversy in particular to the Judge’s confirmation, some believe that the constitution is a living document (the constitution shall evolve). Otherwise, the opposition believes that if you can’t find a right in the constitution, you shall not instate it.
The Constitutional dispute all boils down to originalism — which lays out that the right to privacy is not explicitly outlined nor instated in the constitution — in the Supreme Court. In the case of the lower Court, arguments are fact-based — on the ruling of the Supreme Court — operating in the burden of the Supreme Court. The Court argues that some facets are not upheld as it does not provide enough burden, such as the trip requirement for abortion recipients that can not access abortion in their state. Yet, humans are morally obligated to work in terms of being open-ended to develop and understand the opposing side’s points and thus address their burdens before the Court. Moreover, there shall not be levels of burden and a threshold that determines the Writ of Certiorari as politics shall not have leverage and bias over whose burden is more.