Demonstrators protest outside of the U.S. Supreme Court on May 3 in Washington. A draft opinion suggests the U.S. Supreme Court could be poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide, according to a Politico report released May 2. Whatever the outcome, the Politico report represents an extremely rare breach of the court’s secretive deliberation process, and on a case of surpassing importance. (AP Photo/Jose Luis Magana)

By JONATHAN VAN HARMELEN

As with many people, this past week’s news of the Supreme Court’s likely overturning of Roe vs. Wade has weighed heavily on me. The draft opinion, leaked to Politico this week and published under mysterious circumstances, can only be described as a bombshell. The court’s draft ruling has sent shock waves throughout the U.S. about the future of abortion laws, and the effect of laws banning abortion on the American public.

The overturning of Roe vs. Wade will join one of many stains on the record of the Supreme Court, alongside Korematsu vs. U.S., Plessy vs. Ferguson, and so many others. As a historian, my initial thoughts drifted towards the overturning being akin to the ruling of Korematsu vs. U.S. in 1944. While the direct victim of the court’s upholding of Executive Order 9066 was Fred Korematsu, a member of a minority group subjected to forced removal on racial grounds, the decision represented as well an attack on the rights of all Americans.

As Justice Robert Jackson predicted in his dissent, the ruling became a loaded weapon for the future denial of civil liberties to any citizens during times of crisis such as war. As with the Korematsu ruling, the overturning of Roe vs. Wade will have a wide impact. Women of all backgrounds will surely be affected by this ruling, regardless of their own need for an abortion or even their personal stance on abortion.

Pundits are now predicting an exodus of women and medical practitioners from states where abortion is banned to those where it is open. Those women who remain in states where abortion is banned will continue to seek out abortions nonetheless, with the risk of deadly results as well as prosecution.

Although men are some of the loudest voices in favor of ending abortion, men will also face consequences in the form of: 1. The additional economic burden of unwanted children, and 2. The potential suffering or death of spouses, daughters, and mothers as the result of deadly pregnancies or botched procedures. Men may not be the immediate victims, but they will also face unforeseen consequences.

Also, as we now know, in order to increase their chances of prevailing before the Supreme Court, the government concealed and manipulated evidence. The justices, similarly, split legal hairs and disingenuously separated the question of mass removal of Japanese Americans, which they approved, from the continuing mass confinement of American citizens that was the result of their removal. The overturning of Roe vs. Wade bears some resemblance to such deception.

Given their responses when asked during their confirmation hearings about their attitude towards Roe vs. Wade, the conservative justices’ assertion now that it was wrongly decided reveals their duplicity.

Meanwhile, I found the Supreme Court’s prospective overturning of Roe vs. Wade to be reminiscent of Executive Order 9066 in the lasting damage that may result. While it is well known that the executive order set the stage for forced removal, we often forget that dozens of legal initiatives were taken in its wake to either deport Japanese Americans or strip them permanently of their rights.

California state officials such as Attorney General Earl Warren supported the 1942-43 federal court case of Regan v. King, designed to strip Nisei of voting rights. Even after that petition was denied, in their 1943 session California legislators enacted a discriminatory anti-Japanese fishing license bill. The state also backed escheat suits to enforce the state’s long-dormant Alien Land Act against Issei and Nisei.

Even in 1946, when the exclusion orders against Japanese Americans were abolished, California and other West Coast states, run by a vocal anti-Japanese minority, continued to bring these suits to keep Japanese nationals from living there. The California Supreme Court upheld most of these laws, though they were ultimately struck down in federal court.

It was not until 1952, for example, that the California Alien Land Law was struck down by California’s Supreme Court in Sei Fujii vs. State of California. In similar fashion, a Supreme Court overturning of Roe, a long-standing precedent that protects the rights of Americans, will empower a zealous right-wing minority in their quest to control national politics. Legislatures in states hostile to abortion have already passed trigger laws that will go into effect as soon as the ruling is published, making abortion a criminal act.

This week’s ruling accentuates the tenuous nature of our liberties in these times and the weakness of our institutions to protect our rights. Yet, history also suggests that this ruling will likely be temporary. Just as in the past, many established discriminatory laws, including those against Japanese Americans, ended up being overturned. There is thus still hope in the power of political activism, elections, and congressional initiatives to correct this injustice, should the Court perpetrate it.

People have rallied across the U.S. against the court’s potential decision, and it is to be hoped that future challenges will allow for a return of the protections offered by Roe vs. Wade.

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Jonathan van Harmelen is a Ph.D candidate in history at UC Santa Cruz. He is a columnist for the Japanese American National Museum’s blog Discover Nikkei, and contributes to The Rafu Shimpo, Nichi Bei Weekly, North American Post, and International Examiner. He can be reached at jvanharm@ucsc.edu. Opinions expressed are not necessarily those of The Rafu Shimpo.

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  1. See above for my comment. I directed a play, No More Secrets, on child sexual abuse, that played to every student and school in Hawaii. Case loads of abuse tripled every-where. Focus on sex abuse! Not on abortion! Rape can result in unwanted pregnancy and so can child sexual abuse! No woman who is pregnant from rape or incest should be forced to be bear the child! It is inhumane! You care more for the unborn than you do for living women, children, and families. Save those who are living! Protect the born!