The nation is reeling today in the wake of the Supreme Court’s audacious and illegitimate attack on the rights of all Americans in the Dobbs case [Full PDF of the Court Syllabus and Opinions]. I think it will take some time to fully absorb the true proportions and ultimate effects of this travesty. I can say with certainty that there is uncertainty and fear across America today becuase of this radical attack on our Constitutional order.
The basis of Dobbs is utterly illogical: the Court baldly asserts that the historical patriarchal ignorance and marginalization of women’s rights proves something other than the simple fact that women’s rights have long been ignored and trampled in this nation – they claim it proves that such rights are not firmly rooted in our concept of ordered liberty, and thus not worth protection in the absence of explicit textual support. The effect of Dobbs is merely to reestablish a patriarchal hostility to the rights of women that most believed were only a historical fact. Dobbs casts us back more than 50 years, to an era before our Constitution began to protect the rights of women after a long a bitter struggle – one that the Court demands that women fight yet again in every state legislature and state court in the land while threatened with death or imprisonment for their reproductive choices. I suspect that we will see very clearly the righteous fury of 51% of our population having their rights trampled upon in the coming years. The Supreme Court, and the GOP radicals that control it, will perhaps come to rue Dobbs in time.
The majority of the court casually dismisses that it might be a violation of equal protection of the laws to allow the criminalization of women’s reproductive choices while citing some utterly irrelevant cases they unconvincingly claim preclude the possibility of setting Roe on different Constitutional grounds with a ‘See’ note. All that is demonstrated by their dismissal of any protection of women’s reproductive freedom and privacy under our Constitution is that the Equal Rights Amendment may be the most immediate and salient means of protecting women from an insidious invasion of their rights by the States. We must fight to finally enshrine equal rights for women in our Constitution.
The Dobbs opinion claims that Roe’s protection of abortion rights ignored the state’s interest in protecting fetal life, which it deems a “profound moral question.” The problem with using this as the foundation of a state’s right to ban abortion is that the profundity of the question is rooted solely in the religious beliefs of a large fraction of Americans. The presumption that it is legitimate for the state to champion a theological position about the ‘rights’ of the unborn is an establishment of one religious faith tradition into our civil and criminal laws: a clear violation of the establishment and free exercise clauses of the First Amendment that the Court does not even consider. Merely because a sizable share of the populace with outsized political power holds a religious conviction does not allow the states to legislate that conviction into our laws. The Court ignores this troubling implication while gleefully turning the state legislature loose to persecute women based on those legislatures’ religious sentiments.
Dobbs also radically defenestrates stare decisis. Basically, the Court says that if the current court finds a prior ruling errant, it has the right to overrule it. This, of course completely ignores the diversity of opinion on whether there is an error in Roe (a 5-4 decision is hardly a consensus that an error was made in Roe) and it totally ignores the EFFECT of any claimed error. The Court shamelessly uses Plessy v. Furguson as an example of when stare decisis must fall away, ignoring that where Plessy stripped away the rights of a whole class of persons under our constitution, Roe granted constitutional protections to a whole class of persons. They seem not to recognize the rank irony that in Dobbs we find a direct analog of Plessy, as both served to strip constitutional protection from an entire class of citizens.
It is clear to all that Dobbs is merely the beginning of an assault on all sexual and privacy rights founded in substantive due process jurisprudence of the Court over the past decades. The majority opinion claims: “…the dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell. But we have stated unequivocally that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed “potential life.” Apparently, Justice Thomas did not read or understand that portion of the majority’s opinion, which is mere obiter dictum, and will not serve to restrain the courts of the future. Thomas strips bare the utter hypocrisy and ruthlessness of this theologically motivated court: he demands that all substantive due process rights (to contraception, gay sex and marriage, interracial marriage, etc) should also be reviewed and overturned as illegitimate given that oppressive meddling in our citizens’ private sexual and personal lives has more historical pedigree than restricting such oppression by our government. Thomas’ view will assuredly prevail and points clearly to where this radicalized and illegitimate Court is headed. The distinction the majority makes regarding Roe because it concerns “potential life”, is not one that will restrain the courts from considering and overturning other substantive due process rights found in prior jurisprudence. In fact, Dobbs provides an explicit road map to reconsidering those rights, given that none are “deeply rooted in our conception of ordered liberty” as the Court has used that analysis to simply ignore ANY rights recognized within the past 50 years.
Dobbs will certainly be viewed in our history as among the worst and most harmful that the Court has ever handed down: which is cold comfort to the people who enjoyed constitutional protection of their rights yesterday, and find themselves at the mercy of tyrannical state governments fueled by religious fervor today.
I predict that what we are seeing in Dobbs is the end of the Supreme Court as we know it. There is no moving past the cold fact that a Supreme Court that is empowered to decide what rights Americans do and do not possess under the Constitution is a threat to the liberty, peace, welfare, and health of every American: the Supreme Court can no longer be trusted with that authority having abused it so terribly. Going forward, the Court will either be stripped of that authority and cabined to less weighty matters than Americans’ civil and human rights, or radically restructured to prevent capture by a political and/or religious minority seeking to impose their views on the whole of society. The American people will not tolerate having their rights stripped away with the wave of a poisonous pen by a Supreme Court so wholly out of step with the American people. We live in a democracy – if you can keep it – and do not consent to be ruled by a cadre of unelected radical theocrats.
Justice Kavanaugh writes in his concurrence “The Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution to create new rights and liberties based on our own moral or policy views.” He seems unaware of the irony that the Court is doing exactly the opposite in Dobbs: rewriting our Constitutional jurisprudence to destroy our rights based on their own moral or policy views.
If recognizing and expanding the rights of Americans under our Constitution – especially those of vulnerable minorities -is not the role of the Court, just exactly what use is it? Nearly a century ago Justice Harlan Fiske Stone laid out a mission statement for the modern Supreme Court in his famous Footnote Four of the Carolene Products case to protect “discrete and insular minorities” from infringement of their constitutional liberties by an increasingly powerful, omnipresent, capable, and potentially intrusive government. With Dobbs, the Supreme Court has explicitly rejected that mission and adopted a “post Carolene Products” jurisprudence that no longer protects individual rights by subjecting such intrusions to heightened scrutiny. Dobbs explicitly applies only a rational basis test to abortion regulation by the states, stating that “[u]nder our precedents, rational-basis review is the appropriate standard for such challenges. As we have explained, procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.” This Court is announcing today – though it has been clear for some time – that it has utterly abandoned the protection of Americans’ constitutional rights against encroachment by the state governments.
The Dobbs majority decision is long and tendentious and chock full of logical flaws and absurdities, and I don’t suggest that anyone other than fellow lawyers actually read it, but I do urge ALL citizens to read the dissent of Justices Breyer, Sotomayor, and Kagan. It is a full-throated denunciation of this new direction for the Court and the underlying ‘logic’ of the majority’s opinion, mostly in everyday language that any citizen can draw inspiration from for the fight ahead.