COMMENTARY

Time to Put Elle Woods on the Supreme Court?

Rosemarie Aquilina, JD

Disclosures

July 01, 2022

The US Supreme Court has reversed Roe v Wade, the case that acknowledged a woman's right to make choices over her own body by seeking an abortion.

Soon after the Supreme Court's decision, 83 elected prosecutors issued a statement pledging to use their discretion and refuse to press charges against those who seek, assist in, or provide abortions. They called the criminalization of abortion care "a mockery of justice."

As a judge, I have a constitutional duty to follow the law. I honor that responsibility and will continue doing so. But never in my 37-year legal career, 18 of those years spent on the bench, have I felt as much at odds with the laws I have sworn to uphold. Today I wear my black robes in shame.

The court's reversal is about much more than abortion. It raises crucial questions about a wide range of reproductive choices that people — not just women — make every day: the legality of the "morning after pill," birth control, parental consent waivers (for underage girls seeking an abortion), and the ability to obtain search warrants for women's medical records.

We should prepare for shortages of qualified medical personnel who opt to avoid certain specialties — think ob/gyn and family practice — for fear of facing prosecution for having distributed abortion medication or performing a procedure deemed by extreme legislatures and jurists to be tantamount to abortion. Doctors in some states will be forced to report or even testify against pregnant patients who have abortions or even who have had miscarriages. The cost of malpractice insurance will increase for physicians who treat any woman during their childbearing years.

Where will we incarcerate the convicted medical community and women? Where will we house the unwanted perfect and imperfect babies? Who will pay for all of this?

Judges should not be in the position to interfere with medical decisions. Will I be required to sign probable cause search warrants for information that has been protected under HIPAA, the Health Insurance Portability and Accountability Act of 1996? What will become of research on infertility treatments? Will in vitro fertilization be permitted, or criminalized? Will the disposal of unused fertilized eggs cause imprisonment? For those prosecuted, will I now oversee an Abortion Specialty Court to rehabilitate women, doctors, and pharmacists?

And what if a woman comes to my court seeking permission to receive an abortion because the pregnancy is threatening her life? Will I, a judge, be forced to make that decision and then also be subject to prosecution if a judge above me in the pecking order disagrees with my decision?

That damage is predictable. So are the unwanted pregnancies; women dead from botched, illegal abortions; lives led in fear — of prosecution for exercising bodily autonomy, of wondering what other rights the paternal state will strip away next. 

What remains unclear is the scope of the absurd consequences the court's disastrous ruling is certain to deliver. On paper, women of every age have been remanded to a status of property. Sure, we can still vote, but we are third-class citizens behind men and fetuses.

To those who say our legal system treats men and women equally, I offer you this thought experiment: Should masturbating men who ejaculate be prosecuted for the disposal of cells that might otherwise serve to create a human? To quote Legally Blonde: "Any masturbatory emissions where the sperm is clearly not seeking an egg could be deemed reckless abandonment." That's right. If we are going to erase 49 years of giving women — and not just women, but couples together — the right to make decisions over their own bodies and create a fiction that women have sex only to create a child, let's carry that fiction into the realm of men and apply it evenly. 

Let's create accountability in the system that includes, but is not limited to, birthing expenses, paid maternity leave, paid plastic surgery (after cesarean delivery, stretch marks, nursing), paid childcare, and other relevant funding for pregnant people. Let's mandate DNA testing with public results so that the impregnating male can share in every responsibility.

Let's recognize that pregnancy is a co-conspirator relationship and treat the man and the woman equally, ensuring that both parties are jailed, not just the woman who has an abortion and the healthcare professionals who are now thrust in the middle of this mess, but the man who aided in the pregnancy act that began the "crime."

That's what equality under the law looks like to me. Something tells me the five members of the Supreme Court who voted to overturn Roe have a different vision entirely.

Judge Rosemarie Aquilina serves on the 30th Circuit Court for Ingham County in Michigan. She is most notable for having presided over the 2018 USA Gymnastics sex abuse scandal, in which she sentenced Larry Nassar to up to 175 years in prison.

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