A brief introduction, for those who've previously seen me post about novels and picture books: I'm also a lawyer with a decades-long interest in constitutional law. Before I started using this blog as a way to tell people about my books, I most often wrote on legal and political topics.
And now, I'm reverting to that subject matter to share a few thoughts about the Dobbs decision, which overturned Roe v. Wade and Planned Parenthood v. Casey.
This event -- Roe being overturned -- vindicates the wisdom of Ruth Bader Ginsburg, who noted the shaky legal (constitutional) basis of Roe and regretted that a political trend toward legalizing abortion had been interrupted by it. (And yes, in my view and according to many legal scholars and commentators, irrespective of their views on abortion, Roe had a shaky legal basis indeed.)That isn't to say some states wouldn't have continued prohibiting abortion right up to the present day, but we wouldn't have had decades of posturing for political benefit by people -- on each side -- who didn't have to face up to the reality behind the positions.
Also, if not for Roe, it's conceivable that some case(s) would have established a more solid constitutional basis for abortion rights. (See more on a related possibility below.) Theoretically, that could still happen -- the new Dobbs opinions could be distinguishable, in that no one involved in Dobbs made such alternate arguments. But I find it hard to imagine the Court bringing chaos to state abortion law again any time soon.
We may, however, see such alternate constitutional arguments made for other "privacy"/"substantive due process" rights such as gay marriage and parental decision-making authority. As for whether that will be necessary, I'm at least a little skeptical of the majority opinion's protestations that no such other rights are involved. As the Dobbs majority opinion notes, Planned Parenthood v. Casey, which reaffirmed Roe nineteen years later, relied on substantive due process. The cases recognizing gay marriage, parental decision-making rights, use of contraceptives, et cetera also shelter under that umbrella, in whole or in part. (Brief detour for legal explanation: the Fourteenth Amendment forbids states to "deprive any person of life, liberty, or property, without due process of law." This language has been stretched to include substantive rights, unrelated to procedure and not listed in the Bill of Rights or elsewhere in the Constitution, under the rubric "substantive due process," something of an oxymoron.)
Why do I doubt the majority's assertion that a decision on abortion, unique in destroying a potential human life, will have no repercussions for these other cases? Because the Dobbs decision doesn't actually rest on the fact that abortion destroys a potential human life. It does rely on various historical data specific to abortion -- but I consider it plausible to predict that future cases involving these other rights will, in examining comparable historical evidence, conclude that some or all of those rights are similarly without adequate constitutional foundation. I am not saying that will happen -- I haven't researched such history. But I don't entirely credit the way the majority brushes aside the possibility.
Justice Thomas's concurring opinion points out an important caveat. There may be other provisions, either in the Constitution as originally ratified or in one or more amendments, that could provide a basis for rights originally justified as aspects of substantive due process. Thomas mentions the Privileges or Immunities Clause, also part of the Fourteenth Amendment. He's consistently called attention to this clause over the years, so I doubt he's mentioning it simply as a hypothetical option.
Finally, on a less legalistic note, I'm glad to see that some anti-abortion activists are trying to make options and resources other than abortion widely available to pregnant women and to mothers, and aren't necessarily festooning such options and resources with religious slogans or indoctrination.
1 comment:
Well said, Karen. It appears that Justice Thomas is the closest to understanding the original purpose of the Supreme Court, and that is to interpret whether laws align with the Constitution. The trend had been to appoint activist judges with a liberal agenda. The appointment of more conservative justices may allow us to return to following the Court's task to once again interpret the meaning of a law relative to the Constitution and the Supreme Court's responsibility to overturn unconstitutional legislation as a consequence of its sworn duty. Other reversals have been equally well-founded, historical and set precedent, not the least of which was: Brown v. Board of Education of Topeka (1954). The “separate but equal” policy of educational facilities violated the 14th Amendment’s Equal Protection Clause.
As for “substantive due process,” you’re right-
“This language has been stretched to include substantive rights, unrelated to procedure and not listed in the Bill of Rights or elsewhere in the Constitution, under the rubric "substantive due process," something of an oxymoron.)”
Abortion will be still be available in half the the United States. Certainly liberal states. Abortion and pro-life decisions are more a state’s rights issue, because states differ with regard to liberal or conservative populations in many personal matters: marital, parental or personal decision-making.
The Founders knew each state needed to be equally represented. A sweeping federal law can ignore state’s rights.
In the same way the Electoral College system was established to ensure high population states with mainly urban priorities wouldn’t always win the election over sparsely populated rural states with a more rural focus. A federal law would be unconstitutional if it pretends each state is the same, and so mandates each state to conform to a law that would not reflect a particular state population’s voter’s will with regard to substantive rights: “ This language has been stretched to include substantive rights, unrelated to procedure and not listed in the Bill of Rights or elsewhere in the Constitution, under the rubric "substantive due process," something of an oxymoron.)”
Conservative states and liberal states have a right to their own unique electorate’s will. Sweeping federal mandates unsupported by the Constitution can sometimes act like a tyranny of the majority.
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