The Supreme Court has issued its ruling in Dobbs v. Jackson Women’s Health. It has said unequivocally, by a vote of 6-3, that “the Constitution does not confer a right to abortion,” and that Roe v. Wade and Planned Parenthood v. Casey are “overruled.”
The majority opinion, written by Samuel Alito and largely conforming to the draft of this opinion leaked a month ago, is the most extreme version of this ruling possible. The issue at the heart of the case was a ban in Mississippi on abortions after 15 weeks of gestation. That ban was intended, clearly and directly, to frustrate the work of Jackson Women’s Health (the only abortion clinic in the state of Mississippi), which provided abortions up to 16 weeks. The conservative majority could have simply upheld the 15-week ban. Instead, it chose to tear down the whole constitutional edifice making abortion legal and revoke the right to bodily autonomy.
In overturning Roe and Casey, the conservatives left no exception for incest—when, say, a father illegally and grotesquely impregnates his young daughter. They left no exception for rape—when, say, an assailant violates a person and impregnates them against their will. Alito indicated that there might be an exception in cases where the life of the mother is at risk, but for us to know the contours of that exception, some unfortunate pregnant person will have to make a decision—under threat of being arrested and prosecuted or watching their doctor be arrested and prosecuted—and then bring a constitutional case that their rights were violated.
If that sounds like a dystopian hellscape, that’s because it is. It’s because the court’s conservative majority, and Republicans around the country, want to force others to live in that hell. It is a hell created entirely out of Christian fundamentalism that ignores the views of people with different faiths, or people who believe secularism is the proper grounding for law.
The conservative crusade, however, fails its first contact with any robust conception of individual rights. That life begins at conception is a religious position, not a legal one. Whether walking, talking, born people have a right to their own bodies, untrammeled by state religious dogma, is not merely a moral position; it’s the only possible foundation of legitimate government.
Alito comes to his barbaric conclusion in the usual way ideologues on this court craft their horrible decisions: by concerning himself only with the views of white men from the 18th and 19th centuries. Abortion rights in this country are (or were) grounded in the Fifth and 14th amendments’ right to due process. Alito says, quite rightly, that the people who wrote those amendments did not think they were conferring upon women a right to bodily autonomy. For Alito and the conservative majority, that is enough: If dead white men didn’t grant it, we can’t have it.
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In dissent, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan (who cowrote the opinion) point out that all of the constitutional text Alito relies on was written by men. They write: “But, of course, ‘people’ did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation.”
The liberal justices also devote a lot of time to castigating Alito and the conservatives for their wholesale rejection of stare decisis—the idea that past Supreme Court precedents should be respected unless something has materially changed in the functioning of society. All three Trump-nominated justices—Neil Gorsuch, alleged attempted rapist Brett Kavanaugh, and Amy “Handmaid” Barrett—lied under oath to senators and the American people about their respect for precedent, and they as well as the bad-faith actors who supported their nominations should answer for those lies.
Still, while the legal jousting over precedent and states’ rights is important, I keep coming back to Alito’s whites-only, male-only view of the 14th Amendment as the seminal failure of this ruling. Conservatives (regardless of what party they happen to belong to) think that the 14th Amendment can only do what the white men who wrote it and ratified it thought it could do. They believe that the country is and should be permanently stuck in a vision of the world as articulated by white men who purposely excluded everybody else from participating. Sometimes conservative commentators argue that they believe the only way to break out of that racist and misogynist past is with “new” constitutional amendments, but that argument is easily exposed as a lie, because they never support the constitutional amendments (note the conservative opposition to the Equal Rights Amendment) that would make the inequality stop. They want the constitution and its protections to be by white men and for white men, and they resist any effort to change it.
Conservatives are always like this. They’ve always been like this. And they will continue to be like this. In his concurring opinion in Dobbs, Justice Clarence Thomas straight-up calls for the reconsideration of the cases recognizing LGBTQ rights, legalizing same-sex marriage, and protecting the right to contraception. He asks the court to do to the LGBTQ community what it just did to women and pregnant people, which is nothing less than the reversion to second-class status. Conservatives on the Supreme Court—as well as in Congress and in the White House, if their voter suppression tactics work—will keep taking things away from people who do not identify as white or male or cis or a corporation or an automatic submachine gun.
The court has issued its ruling, and there will be more rulings just like it. The question for the rest of us, all of the people Thomas Jefferson would not have recognized as such, is whether we will accept these rulings.
Obviously, it starts with President Joe Biden. Ever since Texas revoked the constitutional rights of pregnant people, last September, I’ve been calling for him to use maximal federal power to protect what conservatives have stripped away. He hasn’t yet, he must do so now. But in a speech this afternoon, after the ruling, Biden offered little more than thoughts, prayers, and exhortations to go vote.
The problem is that people have voted. People have marched. People have knitted hats. People engaged in wholesale civil unrest for an entire summer during a pandemic. Nothing has stopped the conservatives. “Normal,” “acceptable,” “institutionalist” responses have, by and large, failed. Donald Trump boldly stated that he would only appoint people to the Supreme Court who opposed abortion rights. People voted for him. He was then gifted a Supreme Court seat stolen from the previous administration, elevated a man credibly accused of attempted rape to the court, and nominated another justice after the election to replace him had already started. With the lifetime power these conservatives now hold, the idea that there is an acceptable, institutionalist, “good government” response to their anti-democratic decrees is just folly. Even if Congress and the Senate get their act together to pass a bill restoring abortion rights, this Supreme Court will surely strike it down.
If people want to regain their untimely ripped rights, they will have to expand the Supreme Court. There is no other solution. To do that, yes, Democrats need to be in control of the White House and both houses of Congress (as they are now). But those Democrats will also have to be willing to do what is necessary to reform the court and diminish the power of the conservative justices.
Right now, only Republicans are willing to use all their power to get what they want. And what they want is for women, minorities, and the LGBTQ community to have fewer constitutional rights than cis-hetero white men.
Second-class status for roughly half of the country is now the law of the land. Conservatives and Republicans couldn’t be happier.
