A Pure Exercise of Power to Reduce Women’s Freedom and Equality
“Ending Roe is a pure exercise of Republican power, wielded to reduce women’s freedom and equality” – Los Angeles Times (latimes.com), Erwin Chemerinsky
Freedom and equality have expanded enormously over the course of American history, which makes the ending of a constitutional right virtually unprecedented.
In Dobbs vs. Jackson Women’s Health Organization, the court overruled a half-century of decisions protecting a constitutional right of women to choose whether to end their pregnancies. The decision must be understood as entirely about the conservative desire to end abortion rights and not about constitutional principles or judicial methodology.
There is a desire to think that law exists apart from the identity and ideology of the justices. But that is a myth when it comes to the Supreme Court. Its decisions always have been and always will be a product of the identity of those on the bench. For example, from the 1890s until 1936, the court had a very conservative majority and declared unconstitutional over 200 federal, state and local laws protecting workers and consumers. Only once in American history, during the Warren Court, from 1954-1969, and especially from 1962-1969, was there a liberal majority on the high court and its decisions were progressive in a way never otherwise seen in American history.
Roe vs. Wade was overruled not because of anything about its reasoning or any method of judicial interpretation but because Donald Trump won the presidency in 2016 and was able to appoint three justices to fulfill his promise to put on the court individuals who would end abortion rights.
These nominees had no compunction about lying during their confirmation hearings and pledging fidelity to precedent, and all have said that Roe is well-established precedent. They knew that once on the bench they could do what they wanted. Everyone knows that if Hillary Clinton had won in 2016 and picked three justices, Roewould have been safe for decades to come.
Justice Samuel Alito’s majority opinion in Dobbs focuses on the need to leave the issue of abortion to the political process. But there was no deference to the political process earlier this week when the conservatives on the court declared unconstitutional a New York law limiting concealed weapons that had been on the books since 1911 or struck down a Maine law that limited financial aid to religious schools. This conservative court defers to the political process when it agrees with its results, as it does with laws prohibiting abortions, but the deference vanishes when the conservative justices dislike the states laws.
Precedent and the principle of stare decisis are supposed to limit judicial discretion and provide stability to the law. But time and again, as in this decision, the conservative justices are willing to overrule the precedents they dislike.
They are motivated by carrying out the Republican platform, not a judicial philosophy or an interpretative methodology. The only question is how far they will go.
The court’s ruling overturning the constitutional right for abortion is going to unleash a flurry of new state laws restricting reproductive rights. Right-wing politicians who have made abortion their central issue for years are not going to give up on it now that Roe has been overruled. A bill introduced in Missouri would make it a crime for a woman to leave the state for an abortion. States are sure to adopt laws to prohibit forms of contraception that take effect after conception, such as IUDs and the morning after pill. The court’s statements in Dobbs strongly indicate that the conservatives will uphold these laws.
Indeed, the court’s approach — saying that constitutional rights should be protected only if they are in the text of the Constitution or part of its original meaning or safeguarded by a long unbroken tradition — puts in jeopardy countless other liberties.
Already, conservative litigators have initiated cases to provide the Supreme Court a vehicle for overruling Obergefell vs. Hodges, its decision recognizing a constitutional right to marriage equality for gays and lesbians. A majority of the current justices disagree with that decision and they obviously seem unconstrained by precedent.
It is unclear what overruling Roewill mean for the court and its legitimacy. A Gallup poll in fall 2021 revealed the court having its lowest approval ratings in history, 40% approval and 53% disapproval. A new Gallup poll shows that only 25% of the American people have confidence in the Supreme Court, also a historic low.
What will it mean now that it has overruled a constitutional right supported by most Americans? As Justice Sonia Sotomayor asked at oral argument, how will the court survive the “stench” of this purely ideological ruling?
This, of course, is not the first time that the court has overruled a major precedent. Most famously, in Brown vs. Board of Education, in 1954, the court overruled the 58-year-old decision in Plessy vs. Ferguson, which had upheld laws requiring racial segregation and the doctrine of “separate but equal.” But Brown was a decision expanding equality and freedom and ultimately enhanced the court’s legitimacy.
The decision in Dobbsis a pure exercise of power, wielded to reduce freedom and equality — for women specifically. That the conservatives on the court cannot see the difference between Plessy and Roe shows how damaged that institution has become.
Every woman of reproductive age in the United States has spent her lifetime possessing a constitutional right that no longer exists. Women with unwanted pregnancies will continue to seek abortions. Some will still get them safely. Some will die or be maimed getting them unsafely. Some will have unwanted children.
All of this will happen — not because of any constitutional principle — but because a majority of the justices have decided they have unbridled power to govern the lives of Americans as they choose.
After the abortion decision, American politics is guerrilla warfare
Boston Globe – July 1
Dobbs
“The Constitution was vague, though, …:
I think it is probably impossible to write a Constitution that is not vague. Life is too complex. Vagueness is a good thing. Otherwise we would always be bount by the “iron law of precedent”…whith each precedent bound by the same iron law to prior precedent.
Not that this insight chages anything. I disagree with a lot being said here, but I agree with what I think is the underlying emotion: the law should leave us alone,,, as much as possible, but aye, there’s the rub. Is the “underlying stench” the belief that life is sacred? i think we all agree with that, except when it interferes with what we find convenient. We also believe… right and left… that the law should leave us alone, but we are not willing to leave others who disagree with us alone.
Meanwhile, what are we going to actually do about it? expect a “long fight”? which is another way to say “do nothing.”
From out on the web…
The GOP has been fantastically good at guerrilla politics for ages.
It’s not exactly in the nature of Dems to be good at it, but they have to learn how.
What Dems are good at.
Asking for money. (For some years I have sent them regular small contributions, even before I switched from ‘Independent’ to registered Dem so with this I invited solicitation and am not complaining.)
They want additional funding for the passage of the Judiciary Act proposed by Liz Warren (one of my Senators) to add four seats to the court. In order to do this, presumably, they are going to have to get Joe Manchin & Kyrsten Sinema to vote to end the filibuster.
Somehow I don’t think my additional contribution would accomplish that.
Bill to Reform Broken Judicial Ethics System
Senator Elizabeth Warren (D-Mass.) and Congresswoman Pramila Jayapal (D-Wash.) introduced the bicameral Judicial Ethics and Anti-Corruption Act to overhaul our nation’s judicial ethics laws and restore public faith in our court system. …
Manchin, Sinema dash Biden hopes for filibuster change on abortion rights
Reuters – July 1
… A spokesman for Manchin and an aide to Sinema, who both have opposed suspending the filibuster in the past, told Reuters on Thursday that their respective positions had not changed …
This is Dred Scott level fuckery.
Related:
The Long Path to Reclaim Abortion Rights
NY Times – July 2
(Among women, objection to Overturning Roe is not unanimous.)
‘The Pro-Life Generation’: Young Women Fight Against Abortion Rights
NY Times – July 3
The talk being that states will try to stop people from leaving and returning to get an abortion, no one has said how they plan to enforce it. Stopping abortions meds via mail. How do they plan to enforce it? Are they going to redo all the interstate commerce laws? Are they going to go against the US Mail system of laws?
The conservatives come up with this stuff and never look between the idea and the ruled results as to what kind of machinery needs to be built in order to enforce their new world.
They have no thought or thought process about what the implementation of their ideology will mean for living a life. Worse, they truly have no awareness of just how their new world will also harm them. Just consider how much money they won’t be making as they implement their ideology that leads to further lack of trust throughout society.
Nations like Russia and China will never reach what the US and other western nations have reached because mistrust is the core of their social and government structures.
Simply put: To whom does an embryo belong? From a time when both the state and the Church considered an embryo their asset; ’til today’s burden of raising a child and recognition of a woman’s right to choose is a fur piece. Whether or not to bear a child is neither the state’s nor the church’s f…ing business.
If confirmation required a 2/3 vote, majority justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett would not be there.
At conception, an embryo isn’t. At 6 weeks an embryo is bout the size of a peanut and still has a tail. Its heart really isn’t a heart yet. Today’s Republican Party thrives on ignorance. The Red States’ majority is dumb as dirt, ignorant as a pig.
Ken:
I would not disagree with you. This is politics meant to erase prior grievance of a need to control minority. I can not go anywhere without some ignorant fool whether female or male, making comments. Waiting in the Ophthalmologist’s dark room listening to Biden this, Biden that or the court this or that, etc. These are beer drinkers to whom I would not associate.
I wish to contemplate losing vision in my right eye rather than bull sh*t. There is no escape from their grunting and groaning of displeasure most of which is false.
I surely will not live long enough to see the right of privacy returned to the people and my 1 year old granddaughter will never have the rights her mother and grandmother had if we play the long game. I wonder if there is any society which survived by following the dictates of the most ignorant, superstitious( religious) and paranoid elements of the population? Alito references a “ moral” debate in Dobbs, but that is precisely the reason for government to stay out of the debate— at least until viability. The Taliban retook Afghanistan almost without firing a shot and plunged the country back to the 8 th century. The GOP and it’s court is trying to do the same here and it remains to be seen whether they will have to fire any shots.
Terry
don’t be so pessimistic. there is a good chance we can overcome this. after all, we beat Hitler and he had a head start.
I am glad you referred to a right of privacy, because I think that’s the real point.
and though we are both tired of talking about it, I am going to say you probably ought to look into what you mean by “religion.” It was religious people who started the whole emancipation thing, and religious people have done other good things in the world. the trouble is that people who call themselves religious… and may even think they are…do a lot of bad things. and we blame “religion” as if there was never any bad thing that was done by non-religious people. i shouldn’t go on because with what you think you know about religion you will think that is what i am talking about. actually i am talking about the exact opposite, and a lot of “religious” people agree with me. the bad guys here are the same ol’ monsters who want to rule others. they are experts in fooling people.
even honest government can never stay out of “moral” debate. “moral” is exactly what we are talking about when we are talking about a right to privacy. people create governments to protect themselves from each other. i think they create religion to protect themselves from themselves. but you won’t see anything like that in the current crop of people loudly proclaiming their “religion” in the public space.
Hey Coberly, My problem with religion is that at least the Abrahamic ones tend to get leaders with secular agendas and their followers eat it up like well gospel.😊 It is no different than supporters of the former guy— some followed him because of his racism, misogyny or grifting abilities, but a lot of them could not tell you a single thing that benefitted them. Still they support him.
Terry
that’s true. i think it is in the nature of leaders and followers. and that’s what makes it hard to talk about religion. there is that followers and leaders thing, and there is that other thing by the same name that arises out of people’s deepest concerns and by which they are led, sometimes for the better and sometimes for worse. trouble is, when you set yourself up as “against religion” you set yourself up against the followers deepest feelings and make them think you are trying to take away from them everything that matters. which is why they follow their leaders and don’t listen to you.
Coberly,
Might be worth remembering that Mahatma Gandhi, Martin Luther King, and Desmond Tutu were also religious leaders. One of my favorite generalizations is that generalizations are generally superficial and wrong. Having spent about thirty years earning a living primarily from applied mathematics, then I am certainly aware of the existence of undeniable statistical trends, but then it was still the statistical outliers that proved to be the most interesting and informative.
Ron
I’ve never had much use for sadistics myself. They have their uses, but also their misuses. I believe the brain works on sometthing lke a statistical model that is nothing like a digital computer, so generalizations are almost impossible to avoid. Sometimes a brave or pigheaded person likes me looks at an outlier and says, “hmm; that’s odd.”
This is written on a broken computer. Something like Enigma.
The Long Path to Reclaim Abortion Rights
NY Times – July 2