Abortion-rights protesters participate in the Women's March Foundation's National Day Of Action! The "Bans Off Our Bodies" reproductive rights rally at Los Angeles City Hall on May 14, 2022 in Los Angeles, California. In a leaked initial draft majority opinion obtained by Politico and authenticated by Chief Justice John Roberts, Supreme Court Justice Samuel Alito wrote that the cases Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey should be overturned, which would end federal protection of abortion rights across the country.
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Ideas
May 17, 2022 12:56 PM EDT
Wade is president and CEO of the Mississippi Center for Justice, a nonprofit, public interest law firm committed to advancing racial and economic justice.

Sixty-eight years ago today, the Supreme Court issued the landmark Brown v. Board of Education decision, which overturned prior precedent and outlawed segregation in public schools. The ruling catalyzed racial progress across the nation, dismantling discriminatory barriers well beyond our education system and opening up new opportunities for all Americans.

It was a momentous decision for our country. But today, it’s being used as a weapon to justify the potential overturning of Roe v. Wade. The recently leaked draft opinion from the Supreme Court notes that “when one of our constitutional decisions goes astray, the country is usually stuck with the decision until we correct our own mistake.” The opinion then points to Brown as a shining example of a decision that overturned a bad precedent.

This isn’t the first time this comparison has been made. During oral arguments for the case, there was also a reference to Brown as an example of the court overturning past rulings.

This argument is both legally unsound and deeply insulting. We’ll start on the legal side.

For context, my organization—the Mississippi Center for Justice—is co-counsel on the case before the Supreme Court, Dobbs v. Jackson Women’s Health Organization. There are crucial distinctions between Brown and Dobbs. First, Brown expanded rights, while overturning abortion would take away rights. Generally, when the Supreme Court overturns a previous ruling, it does so to make rights available to more people. If Roe is overturned, it would be the first time in the history of our nation that we would take away a right that has been in place for more than 50 years, according to John Hopkins Professor Stacey B. Lee.

Second, Brown was an unanimous decision. Many believe that the potential forthcoming Dobbs decision will be a 5-4 vote to overturn Roe. Meaning that one swing vote could upend decades of court rulings in overwhelming support of Roe v. Wade.

Third, during oral arguments, it was suggested that the Constitution is neutral on the question of abortion. Therefore, it should be left to the states or legislative process. But that’s laughable. Our Constitution specifically takes a stance on protecting people’s liberty and rights. In fact, that’s precisely the reason why the Court ruled in favor of Brown. Had they bought the neutrality argument, our schools would still be segregated.

Fourth, let’s get to why the connection to Brown is so morally reprehensible. Brown dismantled one of the most racist parts of our history. If it had never been issued, we would still be living in the Jim Crow era. We would live segregated, unequal lives.

Now, it’s being suggested that the Brown decision is in some way equivalent to removing a woman’s right to make decisions about her body. That’s disgraceful. Eliminating our constitutional right to abortion will not uplift anyone or improve equality. On the contrary, more women will be trapped in poverty. More women will be pushed out of the workforce. And more women will suffer adverse health consequences.

Contrary to Brown’s impact on opening access to equitable education, with a ruling to strip women of the right to health and bodily autonomy, women of color would face the most horrendous impacts. They are disproportionately likely to be ensnared in poverty and get pushed out of the workforce and educational system. Research also shows that an abortion ban could increase pregnancy-related deaths among Black women by 33 percent—when they already face dangerously high maternal mortality rates.

Brown was a major turning point in our nation’s devastating legacy of inequality and discrimination. Overturning Roe would be the opposite—fueling racism and undermining our fundamental liberties.

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