by Samantha Thomas
July 17, 2022
In Dobbs v. Jackson Women's Health, the decision of the Supreme Court was written by Justice Samuel Alito, with Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett concurring, Chief Justice John Roberts concurring in part, and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissenting. The Dobbs decision, overturning Roe v. Wade (1973) and Casey v. Planned Parenthood (1992), is the most significant and far-reaching ruling since Roe, 49 years prior. The most striking characteristic of Alito's writing is the callous disregard and cruelty, with which he dispatches a recognized Human Right. The decision begins, "Held: The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives."
This decision is a brutal act of violence to personal agency, bodily autonomy, and reproductive health. In committing this violence, Alito completely dismisses the concept of the Right to Privacy. "Roe, however, was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned."
In doing so, Alito ignores the reliance on this right for over fifty years, in numerous cases. For instance, in 1972, the Court had stated in Eisenstadt v. Baird: "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."
Alito's position is reminiscent of Judge Robert Bork, during his (unsuccessful) 1987 confirmation hearings on his nomination to the Supreme Court. When questioned about the Right to Privacy, he responded incredulously, "Privacy to do what?" The Senate Judiciary Committee rightly rejected Bork's nomination, and found him to be too extreme to be a Supreme Court Justice. Now, his views are held by a Right Wing majority on the Court. This decision is pivotal. It reaches back to eliminate the basis for the expansion of rights, changes the context for life as it is currently lived, and extends the authoritarian worldview to limit future litigation. As such, a dangerous precedent has been set, and if it is not reversed will have detrimental reverberations for generations. Protecting the rights of women and other marginalized people will require serious consideration of the history, current context, and potential for Human Rights in America.
The Brokenness of American Institutions
The current condition of American social and civic institutions is broken, out of order, and unavailable for redress. These institutions did not suddenly break, for unknown reasons. The collapsing of constitutional checks and balances, the erosion of civil rights, and the disruption of democratic processes were produced by a decades-long project by "conservative" political and religious activists. Many on the Left saw this coming, and protested relentlessly, but they were dismissed as "neurotic."
The 1950s and 1960s were a time of turbulence in American history. The Civil Rights Movement was becoming prominent and powerful, the Feminist Movement was demanding equality and reproductive choice, the Gay Liberation Movement was seeking recognition and tolerance, the Environmental Movement was warning against the damage unfettered Capitalism was inflicting on our planet, while the generation that fought in World War II worried about the spread of Communism, their children rebelled against the culture of perpetual war that followed. This was an era of global social upheaval. The stressors on American society had correlates on every continent. Reactionaries react, and American leaders of the Christian Right Movement, such as Paul Weyrich and Jerry Falwell, formed a coalition, ironically named "the Moral Majority." They were neither moral, nor in the majority, but they became very influential in moving the American government onto a path toward Fascism and Christian theocracy. For them, democracy was too dangerous, if black, brown, immigrant, and LGBTQ+ minorities and women could vote. While it has taken decades, the relentless actions of Christian conservatives has compromised voting rights, gerrymandered congressional districts, installed judges, and dominated government at every level, in favor of the Republican Party, who happily purged any liberals from their party to gain advantage over the Democratic Party. The Democrats respond with stern statements, and raise funds to oppose the Republicans, but they don't seem to be able (or willing) to stop them.
There is no evidence that the Christian Right will take their victory over Roe, and be content with taking away the power of choice and bodily autonomy from people who dare to be pregnant in a Republican Party-controlled state. Along the way, they intend to impose additional limitations on freedom, including: criminalizing people for traveling to another state to obtain an abortion, banning the mail delivery of medications (Plan B, mifepristone, misoprostol, oral contraceptives, and so on), monitoring menstrual calendars, ending In-Vitro Fertilization (IVF) and more. They are already calling for a nationwide abortion ban, because it upsets them to think somebody, somewhere can still access abortion services. Nevertheless, all of that would still not be enough to satisfy their need to control people who are not like them, or who don't believe what they believe.
Implicit in Justice Alito's opinion, is the precedent that any right based on the due process clause of the 14th Amendment is questionable, and potentially in danger of Supreme Court review and overturn. Alito uses a dog whistle to invite the Christian Right activists to sue on any of these rights. In his concurrence, Justice Thomas reaches for the megaphone. He explicitly states that some of these cases are in danger. He lists Obergefell (same-sex marriage), Lawrence (same-sex intimacy), and Griswold (contraception). Imagine a country, in which people are prevented from marrying the person they love, jailed for having sex with that person, or fined for using a birth-control or safe-sex method. Imagine that there are people in this country, who want to exert that level of control over their fellow citizens. If these Christian Fascists are exploring ways to keep people from obtaining hormonal birth control or Plan B medications through the mail, or traveling to another state for obtaining these medicines, they would certainly also embargo the hormone medications used in gender-affirming healthcare for trans people, or the treatment of endometriosis, premenstrual dysphoric disorder (PMDD), or certain cancers. The intersections between interest groups who would be adversely affected by the erasure of these rights are numerous. Almost no one would be as free to be fully self-expressed, as an autonomous person with agency, as they were in the recent past.
This most recent assault on Human Rights was the product of decades of Republican Party activity, promoting the Christian Right agenda, installing "originalist" Judges and Justices, suppressing voting, gerrymandering districts, and dominating the media. To be clear, this was also brought upon us by Democratic Party passivity. Every time the Republicans moved to damage or limit Human Rights, the Democrats responded by raising campaign funds, promising to protect or restore our rights, while hiding behind the congressional rules or their insufficient majorities. Roe has been overturned, and it happened while the Democrats hold majorities in both the House and Senate, and a Democrat sits in the Oval Office. While the brand-name Capitalist parties are playing cat and mouse, the USA continues to slide toward Fascism. Well-intentioned Democratic voters have been voting, canvassing, registering new voters, and campaigning in the hope of preserving hard-won rights, especially for marginalized people, but only Republicans win. Even when they represent a small minority of voters, Republicans seem to get their way, or are able to get broad concessions from the Democrats.
So far, the response from the Democratic President, Joseph Biden, has been to issue Executive Orders to empower the Attorney General and the Justice Department to protect interstate commerce and travel â€” powers they already had. When signing the orders, he exhorted people to "vote, vote, vote." Speaker of the House Nancy Pelosi, and Senate Majority Leader Charles Schumer just shrug and tell us, if we vote blue in November 2022 and 2024, giving them larger majorities, they can do something to help. A lot of people have been "voting blue" for decades, but help is not at hand. We call on the Democratic President and Congressional majorities to do something , anything, to demonstrate their commitment to Human Rights.
Here are some things that could be done now, but probably won't be done by Democrats:
The President could declare a public health emergency, based on this nation's horrifyingly high maternal and infant mortality rates. Without intervention, these rates will go up, without the protections of Roe and Casey in place. Declaring a public health emergency would enable Federal agencies to provide healthcare, including prenatal care and abortion services where they are needed most.
The President could make space available on Federal lands and buildings for clinics to operate outside of state jurisdictions. Federal clinics on Indian Reservations could also be utilized for providing abortion services, with tribal approval.
The Senate could eliminate the filibuster rules.
Congress could repeal the odious Hyde Amendment, which prevents Medicaid, Medicare, and any Federal spending on abortion care.
Reform the Supreme Court. It no longer functions to protect We The People from injustice.
Remove all funding from religious-based "pregnancy crisis centers" that do nothing but browbeat desperate mothers to deliver babies to the Capitalist adoption industry.
Whatever your party affiliation, or even if you are not affiliated with any political party, demand that candidates and elected officials support these actions. If they refuse, do not re-elect them. Use your voice. Protest. Do not allow anyone to strip away your rights, without a fight. Working together, we can also set up a sort of "Underground Railroad" to safe haven states where abortion services are still available. This may be a 19th Century approach to the problem, but the Supreme Court is pushing our country back to a 19th Century society.
*1 World Health Organization, "Making health for all a reality, and moving towards the progressive realization of human rights, requires that all individuals have access to quality health care, including comprehensive abortion care services which includes information, management of abortion, and post-abortion care. Lack of access to safe, timely, affordable and respectful abortion care poses a risk to not only the physical, but also the mental and social, well-being of women and girls." Retrieved from https://www.who.int/health-topics/abortion#tab=tab_1 on June 26, 2022.
*2 Dobbs v. Jackson Women's Health Organization, No. 19-1392, 597 U.S., 1 (2022)
*3 Dobbs v. Jackson Women's Health Organization, No. 19-1392, 597 U.S., 9 (2022)
*4 Eisenstadt v. Baird, No. 70-17, 405 U.S., 453 (1972)
*5 Ronald Reagan, "The Morality Gap at Berkeley," speech at Cow Palace, May 12, 1966, in The Creative Society, 125 129.