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I just finished reading the most disturbing attack of my lifetime on individual liberty in America, and an astonishing abuse of power that further undermines our constitutional system at a precarious moment for our democracy. If you haven’t fully read Dobbs v. Jackson Women’s Health Organization, you should.
As an attorney who studied constitutional law, I am appalled. As a veteran who pledged to support and defend the Constitution, I am appalled. As a son, boyfriend, nephew, cousin, friend and ally, I am appalled. Make no mistake, Friday’s Supreme Court decision reversing Roe and Casey not only eviscerated a core right of millions of women, it shook the very foundation of every American’s freedom from government intervention in our bodily autonomy and private lives.
The Supreme Court’s opinion is based on only one substantive argument: If abortion was not permitted in 1868 (when the Fourteenth Amendment was ratified), it cannot be among the various unenumerated constitutionally protected rights. Ask yourself if you are OK with living under an 1868 definition of “Liberty”?
In 1868 there was also no constitutional protection from forced sterilization and no right to marry whomever you choose. Women had no right to vote, serve on juries, or choose their profession. Not all women were permitted to own property, hold a passport, or even wear pants. It is not surprising that the men who held office in 1868 defined “personal liberty” very differently than we do today, as their definition of a “person” did not fully include women or men of color.
Much of this law has changed over the past 150 years because the nature of a constitution is to accommodate the evolving views of a progressing society. Let’s be clear, the Court’s decision in Dobbs was not a result of consistent interpretation of constitutional law; it was deceptive advocacy of the personal policy preferences of four Justices (Justice Thomas’ concurrence was not deceptive, but rather horrifyingly honest).
The legal concept of substantive due process protects each of us from government interference in certain aspects of our personal lives, from the state depriving us of liberty. The Supreme Court’s binding rationale and Justice Thomas’ explicit concurrence militate against continued application of substantive due process, putting at risk our liberty to marry who we love, raise our children as we choose, control our bodies as we wish, and maintain the privacy we currently take for granted. Don’t be fooled—the effect of Friday’s decision is not limited to state control of abortion access (although that alone has devastating implications)—the rights of every American are less secure today than last week. We are now less free.
Are you OK living under an 1868 definition of ‘Liberty’?
I am equally disturbed by the continued degradation of critical norms underlying our system of government, which this decision reflects and accelerates. Every judge and attorney in the country understands the importance of judicial restraint and the essential principle of stare decisis (the adherence to judicial precedent). Although sometimes a frustrating drag on progress, stare decisis promotes stability in our society by ensuring laws are consistently and reliably applied, favoring incremental advancement over radical change. It is a principle typically championed most fervently by conservative jurists. And it is sorely needed in today’s polarized America.
In his 2018 confirmation hearing under oath before Congress, Justice Kavanaugh stated: “my position as a judge is that there are 45 years of precedent and there is Planned Parenthood v. Casey, which reaffirmed Roe, so that is precedent on precedent, as I have explained, and that is important. And that is an important precedent of the Supreme Court.” Despite these statements, less than four years later and with no change in law or fact to support a different view, Justice Kavanaugh voted to directly overturn Roe and Casey, calling them “egregiously wrong”. This brazen departure from stare decisis is a devastating blow to the principle of judicial restraint and jeopardized the legitimacy of the Supreme Court.
A stable and credible legal system requires that Justices demonstrate humility and deference to existing Supreme Court rulings. Issues already decided by a prior Court are generally not within the purview of present Justices to reconsider. However, five Justices in Friday’s Dobbs majority simply believed that they were right and that the seven Justices who originally decided Roe v. Wade, and the majority of Justices who reaffirmed Roe in Planned Parenthood v. Casey, were wrong. It is exceedingly arrogant to call a decision “egregiously wrong” when two prior majorities and four present Justices voted to uphold it. Will a future liberal-leaning Court, perhaps no longer feeling bound by precedent, simply reverse course again on abortion, gun rights, and a variety of other issues that conservatives hold dear?
The Dobbs decision clearly indicates they could. Justices Alito, Gorsuch, Barrett, Thomas, and Kavanaugh displayed a hubris and disdain for the rule of law that seriously degrades the credibility of the Supreme Court. The threat they pose to the judiciary and our system of government transcends policy preference. It will require a tremendous sense of duty and integrity from future Justices to reestablish the judicial norms trampled by the Dobbs Court, as well as significant structural reforms imposed by Congress.
Anyone claiming that this issue is simply about saving unborn babies is being intellectually dishonest.
It will take a supermajority in Congress, committed first and foremost to reforming and strengthening our nation’s institutions, to reestablish a functional government in America that is committed to constitutional principles and democratic norms. It will take a majority of citizens in each state to ensure that women—not old white men—determine what decision is best for their health and well-being if they become pregnant. It will take your vote, and my vote, and the vote of every person we know, in every local, state, and federal election for the foreseeable future, to protect the women in our lives from the horrors their mothers and grandmothers faced 50 and 150 years ago.
Reproductive and other core rights central to personal dignity and autonomy have long been under attack. On Friday, a powerful shield was blown off and the Supreme Court placed the burden on us to protect those rights with our voices and our votes. As always, the most vulnerable in our society are most at risk—disproportionately low-income women of color, who are over three times more likely to die during pregnancy. Eight states have trigger laws in effect banning abortion with no exception for rape or incest. In Arkansas, Kentucky, Louisiana, Missouri, Oklahoma, South Dakota, Tennessee and Texas, a fourteen-year-old girl who is raped by her father and becomes pregnant will be forced to give birth. Those states are not protecting children. They are perpetrating a gross injustice. It is disgusting.
Anyone claiming that this issue is simply about “saving unborn babies” is being intellectually dishonest. It is an oversimplification that ignores the difficult considerations women face when they must decide between ending a pregnancy (often one they wanted) and preserving their own life or wellbeing. No state legislature, no politician sitting in a faraway capital, neither you nor I, is in a better position to make that decision than the woman who faces the reality of it and must live with the consequences. Respect for individual autonomy is the crux of liberty.
Balancing individual liberty against the state’s majoritarian interest is among the most fundamental roles entrusted to the Supreme Court. It abdicated that responsibility on Friday, and so it is now our duty to use the power of the majority to protect our rights — to align democracy and liberty once again.
If your general commitment to liberty and justice is insufficient, do it for your sister or daughter; do it for your aunt or niece. One of them has had an abortion or soon will. Or do it so you don’t have to pay 18 years of child support due to a one night stand. This is not just a women’s issue. This is about the rights of every American. It is the responsibility of every man. This is about you.