{"id":6605,"date":"2022-06-04T01:02:27","date_gmt":"2022-06-04T01:02:27","guid":{"rendered":"https:\/\/fieldstonnews.com\/home\/?p=6605"},"modified":"2022-06-04T01:02:29","modified_gmt":"2022-06-04T01:02:29","slug":"roe-v-wade-a-conversation-with-former-fieldston-constitutional-law-teacher-lynn-livingston","status":"publish","type":"post","link":"https:\/\/fieldstonnews.com\/home\/2022\/06\/roe-v-wade-a-conversation-with-former-fieldston-constitutional-law-teacher-lynn-livingston\/","title":{"rendered":"Roe v. Wade: A Conversation with Former Fieldston Constitutional Law Teacher, Lynn Livingston"},"content":{"rendered":"\n

Justice Samuel Alito\u2019s draft opinion, which was leaked in May, has left millions of Americans with lingering questions. Alito\u2019s argument that since abortion is not mentioned in the constitution, it cannot be protected by the Supreme Court, has many wondering how abortion can<\/em> be protected. Over the next few months, especially if the court overturns this fifty-year precedent, Americans will witness an abundance of change.<\/p>\n\n\n\n

I spoke with Lynn Livingston who taught Constitutional Law at Fieldston in the 1980s and 1990s to  help the Fieldston community understand what Dobbs vs Jackson Women\u2019s Health Organization<\/em> means for the future of this country (Livingston was also known for her brilliant teaching of Advanced Placement American History, the 10th grade American History survey and Law and Society).<\/p>\n\n\n\n

Livingston mentions that one of her Fieldston classes in 1987 coincided with Robert Bork\u2019s Supreme Court confirmation hearings. She says that Bork was firm in his view that the constitution grants no right to privacy, and that \u201cthe Roe <\/em>decision had no merit.\u201d Livingston reiterates Bork\u2019s opinion that justices \u201ccould not just \u2018find\u2019 rights that were not specifically enumerated in the Constitution.\u201d Bork concluded that the Constitution has only one interpretation, and that is \u201cthe original intent of the framers.\u201d Alito\u2019s argument against Roe<\/em> reignites the debate as to whether the constitution is a living document. During Bork\u2019s hearing, Livingston recalls that Bork\u2019s \u201ccritics said that this philosophy would freeze the law and not allow for interpretations for the evolving realities of modern day.\u201d Robert Bork was not confirmed to the Supreme Court.<\/p>\n\n\n\n

If the draft opinion holds, the Supreme Court will overturn Roe\u2019s <\/em>decision that women have a constitutional right of privacy in choosing to have an abortion. Alito believes that Roe<\/em> was not the best case to argue abortion rights. Liberals such as the late Justice Ruth Bader Ginsburg agreed. Livingston writes that Ginsburg wanted abortion rights to rest not in the right of privacy, but in the Fourteenth Amendment\u2019s equal protection clause. Ginsburg believed that the 1970 case of a female Air Force major who was forced to have an abortion because of Air Force regulations, would have been the better case; however, Livingston reminds us that \u201cthe Air Force changed its regulation and therefore the case was moot.\u201d A case that would have had the government decide that it should not force<\/em> women to have<\/em> abortions to stay employed, would be easier to agree on than a case that argues for <\/em>an abortion. <\/p>\n\n\n\n

If Roe<\/em> is overturned, Livingston believes that it is \u201chighly likely that challenges to abortion restrictions will be made in state courts.\u201d There are states that have equal protection of the laws guaranteed, but they \u201cmay well serve as vehicles to overturn individual state restrictions.\u201d She suspects that appeals to federal courts will be more difficult, \u201cat least as long as the current makeup of the Court is unchanged.\u201d<\/p>\n\n\n\n

In May, Congress failed to codify Roe<\/em> into federal law. If it had passed, however, Livingston says that \u201cit may have been struck down by the Court.\u201d She says that \u201cCongress can overrule a Court interpretation of federal statute,\u201d but \u201cthe Court has held that it is the sole arbiter of what the Constitution means.\u201d Livingston finds it \u201cironic\u201d that nowhere in the Constitution is it written that the Court has \u201cthis power of \u2018judicial review.\u2019<\/p>\n\n\n\n

The question remains, how are lawyers going to fight abortion restriction? \u201cPersonally,\u201d Livingston writes, \u201cI would like lawyers to challenge the new restrictions on \u2018bodily autonomy\u2019 grounds,\u201d even though bodily autonomy is not a fundamental right in the constitution. Even so, the Supreme Court has upheld cases based on bodily autonomy in the past. Livingston brings up the right to refuse medical treatment, doctors cannot force you to donate blood, etc. \u201cEven corpses have more rights of bodily autonomy than live women in many states if Roe is overturned!\u201d <\/p>\n\n\n\n

The Fourteenth Amendment protects not only abortion rights, but the right to same-sex-marriage, interracial marriage, and more. If abortion rights can be rescinded, so can these other guarantees. \u201cYou are right to be worried that other rights based on the right of privacy may be threatened,\u201d Livingston writes. Alito assures in his draft that same-sex-marriage and interracial marriage will remain unaffected, because they do not threaten another life. However, Alito contradicts himself, Livingston says that \u201c[Alito] reasons that no right can be deemed fundamental unless it is enumerated in the Constitution or is so \u2018deeply embedded in the history and traditions\u2019 of the country or so essential to our concept of \u2018ordered liberty.\u2019\u201d <\/p>\n\n\n\n

Millions of eyes are on Planned Parenthood, the non-profit reproductive healthcare organization, waiting to see what the organization will do. If the court overrules Roe<\/em> and states ban and criminalize abortion, there is not much that Planned Parenthood can do in terms of providing abortions; however, Livingston write that she anticipates that \u201cPlanned Parenthood is likely to be in the forefront of educating women about their options although under some state laws, they have to be careful to avoid offering particularized advice to a woman.\u201d Livingston highlights that she does not \u201cthink we should envisage a return to the coat-hanger, back alley abortion terrors of pre-Roe abortions.\u201d Medicine has advanced exponentially in the fifty years since Roe<\/em>. Most abortions are no longer surgical and solely necessitate a pill.<\/p>\n\n\n\n

States are already discussing banning at home pill abortions, but Livingston expects that this will be hard to enforce. States may try and penalize women who cross state lines to receive abortions, \u201cbut the Court has recognized a fundamental (yet unenumerated) right of travel and even the current Court would be hard pressed to support those laws.\u201d She also reiterates that Planned Parenthood does much more than provide abortions. Planned Parenthood provides essential healthcare such as breast cancer screenings, STD testing, birth control prescriptions, etc. The organization\u2019s services are especially important \u201cto poor women. Many red-state legislatures have been cutting funds to Planned Parenthood even if the funds are meant for non-abortion services.\u201d<\/p>\n\n\n\n

Livingston worries about the consequences people who suffer miscarriages and ectopic pregnancies will face if the draft is upheld. She references a tragic case in Ireland that led to the country overruling their abortion ban. A woman had a miscarriage and was denied a dilation and curettage procedure; thus, she became septic and died. Livingston also wonders about IVF procedures when fertilized embryos are discarded when abnormalities are discovered, \u201cWould the laws hold the lab or the prospective parents guilty of murder,\u201d she asks. <\/p>\n\n\n\n

I asked Livingston if she believed that the decision of the Jackson Women\u2019s Health Organization to take their lawsuit against the Mississippi abortion law all the way up to the Supreme Court was a mistake. She writes that \u201cOnce the Court agreed to hear Dobbs<\/em> last May, the handwriting was on the wall, especially after Amy Coney Barrett was confirmed.\u201d She supposes that the country had hoped that Chief Justice Roberts \u201cmight try to moderate his conservative allies out of fear that overturning a nearly 50 year precedent would damage the credibility of the Court in the eyes of the public,\u201d but he is no longer a swing vote with the court having five anti-abortion conservatives. <\/p>\n\n\n\n

Livingston calls the draft \u201cshocking in its total dismissal of the usual tests that justices have used to justify overturning \u2018settled law.\u2019\u201d Supreme Court decisions can and have been overturned, but \u201cin most of the history of reversals, the Court has not taken away a fundamental right from the people; indeed, they have reversed prior decisions that restricted rights\u2014no one can be forced to pledge allegiance to the flag, no black child can be kept from receiving an education in an integrated school, etc. because the Court realized that prior decisions were incorrect denials of religious liberty or equal protection of the laws.\u201d<\/p>\n\n\n\n

Jackson \u201cmight well have anticipated\u201d Alito\u2019s draft, but Livingston says that they \u201cfelt it was important to advocate for the continuation of a fundamental right of liberty for women in making such a personal decision.\u201d She calls out false statements that Alito wrote in his draft. He wrote that abortion was criminally punished from the inheritance of English common law until 1973, \u201cThis is absolutely false. There was a common law belief that abortion was accepted until the woman felt movement (around 15 or 16 weeks).  Even the Catholic Church until 1869 felt there was no problem with abortion until “quickening”–at which point the fetus was “ensouled.\u201d The states at the ratification of the Constitution \u201cdid not penalize abetting, procuring or performing abortion before quickening. The earliest abortion-related laws dealt with protecting women’s health from dangerous poisons.\u201d<\/p>\n\n\n\n

With state legislatures calling for fetuses be gifted personhood from the moment of fertilization, Livingston says that \u201cThere seems to be a lot of yearning from some on the far right to return the US to the 1950s when women had very few rights to have credit in their own names, to be free from \u2018marital rape.\u2019\u201d If a fetus is given personhood, the use of contraceptives could be categorized as murder weapons.<\/p>\n\n\n\n

President Biden has repeatedly called Congress to codify Roe<\/em> and protect abortion rights, but Livingston does not \u201csee that Biden will even contemplate using an executive order to protect Roe.\u201d She says his devotion to Catholicism has made him \u201cuncomfortable in voicing his opinion on abortion,\u201d which leads her to believe that he \u201cpivoted to warn that other rights of interracial and same-sex marriage based on a right to privacy were endangered by Alito’s opinion,\u201d to avoid having to defend Roe <\/em>itself. <\/p>\n\n\n\n

Livingston does not believe that a liberal Justice\u2019s clerk leaked the draft, but instead someone who \u201cwanted to stiffen the spines of the 5 conservative justices.\u201d<\/p>\n\n\n\n

As the issue of Roe<\/em> continues to unfold, I will continue to have conversations with people such as Lynn Livingston to further understand the severity of the draft opinion, and what options Americans have left. <\/p>\n","protected":false},"excerpt":{"rendered":"

Justice Samuel Alito\u2019s draft opinion, which was leaked in May, has left millions of Americans with lingering questions. Alito\u2019s argument that since abortion is not mentioned in the constitution, it cannot be protected by the Supreme Court, has many wondering how abortion can be protected. Over the next few months, especially if the court overturns this fifty-year precedent, Americans will witness an abundance of change. I spoke with Lynn Livingston who taught Constitutional Law at<\/p>\n","protected":false},"author":295,"featured_media":6606,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[318,320],"tags":[],"coauthors":[418],"class_list":["post-6605","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news","category-politics"],"jetpack_featured_media_url":"https:\/\/fieldstonnews.com\/home\/wp-content\/uploads\/2022\/06\/Screen-Shot-2022-06-03-at-8.59.04-PM.png","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/fieldstonnews.com\/home\/wp-json\/wp\/v2\/posts\/6605","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fieldstonnews.com\/home\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fieldstonnews.com\/home\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fieldstonnews.com\/home\/wp-json\/wp\/v2\/users\/295"}],"replies":[{"embeddable":true,"href":"https:\/\/fieldstonnews.com\/home\/wp-json\/wp\/v2\/comments?post=6605"}],"version-history":[{"count":1,"href":"https:\/\/fieldstonnews.com\/home\/wp-json\/wp\/v2\/posts\/6605\/revisions"}],"predecessor-version":[{"id":6607,"href":"https:\/\/fieldstonnews.com\/home\/wp-json\/wp\/v2\/posts\/6605\/revisions\/6607"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/fieldstonnews.com\/home\/wp-json\/wp\/v2\/media\/6606"}],"wp:attachment":[{"href":"https:\/\/fieldstonnews.com\/home\/wp-json\/wp\/v2\/media?parent=6605"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fieldstonnews.com\/home\/wp-json\/wp\/v2\/categories?post=6605"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fieldstonnews.com\/home\/wp-json\/wp\/v2\/tags?post=6605"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/fieldstonnews.com\/home\/wp-json\/wp\/v2\/coauthors?post=6605"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}