John
Roe,
Petitioner
v.
State
of Columbiana,
Respondent
The first midterm elections after the reversal
of Roe v. Wade were very kind to conservatives in Columbiana. A record number of far-right candidates were
elected to the Columbiana House and Senate; so many in fact that for the first
time, far-right conservatives constituted a majority in both houses.
The new state House and
Senate immediately got to work. With
much pomp and ceremony on the opening day of the session, conservative legislators
held a vigil on the State Capitol steps to pray for all the unborn children
that had been “lost during the Roe v. Wade years”.
In a speech later the
same day (that opponents described as mostly a political rally), Rep. Dick Gethardt also decried Columbiana’s increasingly low birth
rate – a trend that started over thirty years ago – stating that, “Columbiana cannot
become another Japan! Nor do we want a
bunch of immigrants in our state to maintain an adequate workforce. If we had all those unborn children back, we
would have enough workers!”
Rep. Gethardt ended his fiery speech by promising that “[T]he
newly installed conservative majority will make Columbiana great again and
ensure future generations will be treated with the same respect as their
forebears enjoyed.” Many female and
minority legislators quickly pointed out that the representative’s choice of
words hinted at past misogyny and racial animus.
Very quickly, the House
and Senate passed a bill making all abortions – without exemptions –
illegal. The bill was quickly signed by
the Governor who proclaimed that is was “a new day for unborn Columbianians.” Under
the new law, women seeking abortions or anyone assisting in a woman in seeking
an abortion is guilty of a felony, punishable by life imprisonment. The law includes any healthcare provider who
“performs surgical abortions or aides in medication abortions, either by
obtaining the medication for patients or by informing patients in how to obtain
such medication or refers a patient to a provider in another state for purposes
of an abortion.” The bill further defines
all birth control methods as abortifacients, thereby making all birth control
illegal in Columbiana. As such, the sale and possession of condoms in
Columbiana are illegal. Sale or sale of
condoms is a Class Three misdemeanor punishable by ten years in prison.
Most controversial,
however, was H.B. 102, colloquially known as the “Save Our Seed” (SOS) bill. It passed overwhelmingly in the House and
then, without changes, by a slightly more modest majority in the Senate. The Bill makes it illegal for any male
between the ages of 13 and 63 to obtain a vasectomy. Unlike the abortion bill, the SOS Bill did
not punish males who obtained a vasectomy.
However, any healthcare provider found to have performed a vasectomy on a
male between the proscribed ages would lose their medical license and be
subject to ten years in prison.
The Governor of
Columbiana is more moderate than the House or Senate majorities and, after
giving a poignant speech regarding the loss of reproductive rights – “one of
the most sacred of privacy rights in our country” – she vetoed the SOS law. In Columbiana, a three-fifths vote of the
elected membership of both chambers is necessary to override a veto; the Governor’s
veto was immediately overridden.
Speaking again on the
steps of the state Capitol building, Dick Gethardt (one
of the sponsors of the bill) joyfully announced that “with the passage of the
SOS Bill, not only is unborn life protected, but also the ‘potential for life’
is guaranteed.” Rep. Gethardt
went on to denounce Governor Bader for being a “CON - Christian Only in Name”
and promised his constituents that she would be roundly defeated in the next
election.
Reaction to both laws was swift and
intense. Opposition to the SOS law was
particularly harsh. A liberal Op-Ed
writer at the Columbiana Picayune noted that almost all of the
legislators who voted for the SOS Bill were either white men over the age of 65
(thus not impacted by the Bill) or far-right anti-abortion females. No minority and no moderate or liberal white
female legislators voted for the bill.
Between the House and Senate, even among the younger far-right male
legislators, only three white men under the age of 65 voted in favor of it.
Tate Akin, a young, conservative
legislator who voted for the abortion ban but not the SOS bill, decried the new
legislation, stating:
Performing vasectomies are not the
same as performing abortions! Another life
is not involved when deciding to have a vasectomy; therefore, a man should not
be punished for what is a very private decision regarding his body only.
Also, a woman can stop from getting
pregnant if she really wants to. Even in
rape, a woman can force her body to just shut down if she does not want a baby. Men do not have the same control over their
sperm!
The Columbiana Civil Liberties
Union (CCLU) immediately denounced the SOS law as unconstitutional, arguing
that the law impermissibly intrudes upon a man’s
constitutional right to privacy.
In response, a
coalition of fundamentalist religious groups reiterated Rep. Dick Gethardt’s arguments, stating that the government had a
significant interest in ensuring that both unborn children and the “potential for
life” are protected. As one of the coalition’s members stated in a press
conference, “God does not want precious seed spilt simply because of wanton
desire!”
Arguments over the law
were quickly taken from the public square to the courts. CCLU filed a lawsuit in federal district
court on behalf of plaintiff John Roe, a single adult male citizen of
Columbiana. The lawsuit sought a
temporary injunction to prohibit implementation of the law and a Motion for a
Declaratory Injunction that the law was unconstitutional. The motion and the injunction were granted.
On appeal, the State of
Columbiana argued that the State has a compelling interest for adopting the
legislation and that the Nation’s history and tradition evidenced no legal
protections for vasectomies.
The Court of Appeals
for the Thirteenth Circuit agreed. Finding
for the State, it reversed the district court.
It concluded that while “the law raises concerns under the scope of
‘penumbras’ of privacy, the State has a significant governmental interest in
insuring that all potential life was given the chance to be born.” It specifically noted the State’s low
birth-rate as a governmental concern.
At a press conference
announcing the filing of a petition for certiorari with the United
States Supreme Court, CCLU stated:
The State is trying to
force men to be unwilling studs. ‘Forced
siring’ is not an American value! A man
should not be compelled to impregnate a woman simply because he is not allowed
access to obtaining a vasectomy. Even if
the State does have a concern regarding its low birth rate, this does not give
the State a right to force the possible siring of a child simply because a man
chooses to engage in a consenting, heterosexual sex act.
The petition for certiorari
has been granted. The Court will
consider the following question only:
-
Does the Save our Seed Bill of 2023 unconstitutionally
invade petitioner’s constitutional right to privacy or otherwise violate the
Constitution?
(Note: The
Court is not addressing the birth control issue arising from the
abortion law. Additionally, the Court
will not address any potential claims arising from Columbiana's RFRA
statute nor consider any potential Equal Protections claims.)