25 June 22
Live on the homepage now!
Reader Supported News
The supreme court has overturned Roe v Wade – here is the dissenting opinion by Justices Breyer, Sotomayor and Kagan
One last consideration counsels against the majority’s ruling: the very controversy surrounding Roe and Casey. The majority accuses Casey of acting outside the bounds of the law to quell the conflict over abortion – of imposing an unprincipled “settlement” of the issue in an effort to end “national division”. But that is not what Casey did. As shown above, Casey applied traditional principles of stare decisis – which the majority today ignores – in reaffirming Roe. Casey carefully assessed changed circumstances (none) and reliance interests (profound). It considered every aspect of how Roe’s framework operated. It adhered to the law in its analysis, and it reached the conclusion that the law required. True enough that Casey took notice of the “national controversy” about abortion: the court knew in 1992, as it did in 1973, that abortion was a “divisive issue”. But Casey’s reason for acknowledging public conflict was the exact opposite of what the majority insinuates. Casey addressed the national controversy in order to emphasize how important it was, in that case of all cases, for the Court to stick to the law. Would that today’s majority had done likewise.
Consider how the majority itself summarizes this aspect of Casey:
“The American people’s belief in the rule of law would be shaken if they lost respect for this Court as an institution that decides important cases based on principle, not ‘social and political pressures.’ There is a special danger that the public will perceive a decision as having been made for unprincipled reasons when the court overrules a controversial ‘watershed’ decision, such as Roe. A decision overruling Roe would be perceived as having been made ‘under fire’ and as a ‘surrender to political pressure.’”
That seems to us a good description. And it seems to us right. The majority responds (if we understand it correctly): well, yes, but we have to apply the law. To which Casey would have said: That is exactly the point. Here, more than anywhere, the court needs to apply the law – particularly the law of stare decisis. Here, we know that citizens will continue to contest the court’s decision, because “[m]en and women of good conscience” deeply disagree about abortion. When that contestation takes place – but when there is no legal basis for reversing course – the court needs to be steadfast, to stand its ground. That is what the rule of law requires. And that is what respect for this court depends on.
“The promise of constancy, once given” in so charged an environment, Casey explained, “binds its maker for as long as” the “understanding of the issue has not changed so fundamentally as to render the commitment obsolete.” A breach of that promise is “nothing less than a breach of faith.” “[A]nd no court that broke its faith with the people could sensibly expect credit for principle.” No court breaking its faith in that way would deserve credit for principle. As one of Casey’s authors wrote in another case, “Our legitimacy requires, above all, that we adhere to stare decisis” in “sensitive political contexts” where “partisan controversy abounds.”
Justice Jackson once called a decision he dissented from a “loaded weapon,” ready to hand for improper uses. We fear that today’s decision, departing from stare decisis for no legitimate reason, is its own loaded weapon. Weakening stare decisis threatens to upend bedrock legal doctrines, far beyond any single decision. Weakening stare decisis creates profound legal instability. And as Casey recognized, weakening stare decisis in a hotly contested case like this one calls into question this court’s commitment to legal principle. It makes the court appear not restrained but aggressive, not modest but grasping. In all those ways, today’s decision takes aim, we fear, at the rule of law.
“Power, not reason, is the new currency of this court’s decision-making.” Roe has stood for 50 years. Casey, a precedent about precedent specifically confirming Roe, has stood for 30. And the doctrine of stare decisis – a critical element of the rule of law – stands foursquare behind their continued existence. The right those decisions established and preserved is embedded in our constitutional law, both originating in and leading to other rights protecting bodily integrity, personal autonomy, and family relationships. The abortion right is also embedded in the lives of women – shaping their expectations, influencing their choices about relationships and work, supporting (as all reproductive rights do) their social and economic equality. Since the right’s recognition (and affirmation), nothing has changed to support what the majority does today. Neither law nor facts nor attitudes have provided any new reasons to reach a different result than Roe and Casey did. All that has changed is this court.
Mississippi – and other states too – knew exactly what they were doing in ginning up new legal challenges to Roe and Casey. The 15-week ban at issue here was enacted in 2018. Other states quickly followed: between 2019 and 2021, eight States banned abortion procedures after six to eight weeks of pregnancy, and three states enacted all-out bans. Mississippi itself decided in 2019 that it had not gone far enough: The year after enacting the law under review, the state passed a six-week restriction. A state senator who championed both Mississippi laws said the obvious out loud. “[A] lot of people thought,” he explained, that “finally, we have” a conservative court “and so now would be a good time to start testing the limits of Roe”. In its petition for certiorari, the state had exercised a smidgen of restraint. It had urged the court merely to roll back Roe and Casey, specifically assuring the court that “the questions presented in this petition do not require the court to overturn” those precedents. But as Mississippi grew ever more confident in its prospects, it resolved to go all in. It urged the court to overrule Roe and Casey. Nothing but everything would be enough.
Earlier this Term, this court signaled that Mississippi’s stratagem would succeed. Texas was one of the fistful of states to have recently banned abortions after six weeks of pregnancy. It added to that “flagrantly unconstitutional” restriction an unprecedented scheme to “evade judicial scrutiny.” And five justices acceded to that cynical maneuver. They let Texas defy this court’s constitutional rulings, nullifying Roe and Casey ahead of schedule in the Nation’s second largest state.
And now the other shoe drops, courtesy of that same five-person majority. (We believe that the chief justice’s opinion is wrong too, but no one should think that there is not a large difference between upholding a 15-week ban on the grounds he does and allowing states to prohibit abortion from the time of conception.) Now a new and bare majority of this court – acting at practically the first moment possible – overrules Roe and Casey. It converts a series of dissenting opinions expressing antipathy toward Roe and Casey into a decision greenlighting even total abortion bans. It eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station. It breaches a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the court’s legitimacy.
Casey itself made the last point in explaining why it would not overrule Roe – though some members of its majority might not have joined Roe in the first instance. Just as we did here, Casey explained the importance of stare decisis; the inappositeness of West Coast Hotel and Brown; the absence of any “changed circumstances” (or other reason) justifying the reversal of precedent. “[T]he court,” Casey explained, “could not pretend” that overruling Roe had any “justification beyond a present doctrinal disposition to come out differently from the court of 1973.” And to overrule for that reason? Quoting Justice Stewart, Casey explained that to do so – to reverse prior law “upon a ground no firmer than a change in [the court’s] membership” – would invite the view that “this institution is little different from the two political branches of the Government.” No view, Casey thought, could do “more lasting injury to this court and to the system of law which it is our abiding mission to serve.” For overruling Roe, Casey concluded, the court would pay a “terrible price”.
The Justices who wrote those words – O’Connor, Kennedy, and Souter – they were judges of wisdom. They would not have won any contests for the kind of ideological purity some court watchers want justices to deliver. But if there were awards for justices who left this court better than they found it? And who for that reason left this country better? And the rule of law stronger? Sign those justices up.
They knew that “the legitimacy of the court [is] earned over time.” They also would have recognized that it can be destroyed much more quickly. They worked hard to avert that outcome in Casey. The American public, they thought, should never conclude that its constitutional protections hung by a thread – that a new majority, adhering to a new “doctrinal school,” could “by dint of numbers” alone expunge their rights. It is hard – no, it is impossible – to conclude that anything else has happened
here. One of us once said that “[i]t is not often in the law that so few have so quickly changed so much.” For all of us, in our time on this court, that has never been more true than today. In overruling Roe and Casey, this court betrays its guiding principles.
With sorrow – for this court, but more, for the many millions of American women who have today lost a fundamental constitutional protection – we dissent.
Sen. Elizabeth Warren. (photo: Getty Images)
With its decision in Dobbs v. Jackson Women’s Health Organization, an extremist Supreme Court has overturned nearly 50 years of precedent, stripping away the constitutional right to an abortion and ruling that the government — not the person who is pregnant — will make the critical decision about whether to continue a pregnancy. At least nine states have already banned abortion; over a dozen more could soon follow suit by severely restricting or outright outlawing abortion, putting the lives, health and futures of girls and women at risk.
If we sound angry and alarmed, that’s because we are. This decision is devastating — and we have seen what happens next. We both lived in an America where abortion was illegal. A nation in which infections and other complications destroyed lives. A nation in which unplanned pregnancies derailed careers and livelihoods. A nation in which some women took their own lives rather than continue pregnancies they could not bear.
But we must hold on to hope. Each of us can and should act — both elected officials and everyday Americans. We can start by helping those who need access to an abortion. Support Planned Parenthood and other organizations that are expanding their services in states where abortion is available. Contribute to abortion funds. Encourage state legislators to protect reproductive rights in states like New Mexico and Minnesota that border places where abortion services will most likely be severely restricted and even criminalized. Encourage employers in states with abortion bans to give their employees adequate time off and money for travel to find the abortion care they need. Do all you can — and demand the same all-you-can approach from all of our elected leaders.
Earlier this month, along with Senator Patty Murray and half the Senate Democratic Caucus, we sent a letter to President Biden outlining executive actions he could take to defend reproductive freedom. These actions include increasing access to abortion medication, providing federal resources for individuals seeking abortion care in other states and using federal property and resources to protect people seeking abortion services locally. We need action, and we need it now.
On Friday, with the release of the Dobbs decision, we entered a perilous time that threatens millions of women across this nation. We urge the president to declare a public health emergency to protect abortion access for all Americans, unlocking critical resources and authority that states and the federal government can use to meet the surge in demand for reproductive health services. The danger is real, and Democrats must meet it with the urgency it deserves.
We’re in this dark moment because right-wing politicians and their allies have spent decades scheming to overrule a right many Americans considered sacrosanct. Passing state laws to restrict access to abortion care. Giving personhood rights to fertilized eggs. Threatening to criminalize in vitro fertilization. Offering bounties for reporting doctors who provide abortion services. Abusing the filibuster and turning Congress into a broken institution. Advancing judicial nominees who claimed to be committed to protecting “settled law” while they winked at their Republican sponsors in the Senate. Stealing two seats on the Supreme Court.
For nearly 50 years, right-wing extremists rejected the beliefs held by an overwhelming majority of Americans. They doubled and redoubled their efforts to create a future in which women and their doctors could face a prison sentence for seeking or providing basic health care. When these extremists couldn’t impose their radical views through the legislative process, they stacked the courts. And now that the Supreme Court has opened the door by overturning Roe, Republicans will continue their assault on our civil rights and liberties.
Former Vice President Mike Pence called for a national ban on abortion in all 50 states; Mitch McConnell, the Senate minority leader, flat out stated that it’s a possibility. And the logic laid out by the majority in Dobbs seems to undercut other precedents, raising the alarming possibility that we could soon see an assault on privacy and marriage equality.
In order to fix the damage Republicans have done to our system in their efforts to control women’s lives, we need broad democracy reform: changing the composition of the courts, reforming Senate rules like the filibuster, and even fixing the outdated Electoral College that allowed presidential candidates who lost the popular vote to take office and nominate five of the justices who agreed to end the right to an abortion.
We can’t undo in five months the damage it took Republicans five decades to accomplish, but we can immediately start repairing our democracy. The public is overwhelmingly on our side. A vast majority of Americans oppose the decision the Supreme Court just made. Nearly two-thirds of Americans believe that abortion should be legal in all or most cases. And more Americans describe themselves as pro-choice today than at any other point in the last 25 years.
Let’s be clear: Roe may be gone, but the protections it once guaranteed are on the ballot. States like Kansas and Kentucky have initiatives to strip away state constitutional protections for abortion, while Michigan and Vermont are working toward statewide votes to create constitutional protections for reproductive freedom. But make no mistake, this radical decision affects all Americans, not just those in states where the right to a safe, legal abortion will soon fall.
Now is the time to demand that every single candidate for every single office voice a firm position on reproductive rights. Ask every Senate candidate to commit to reforming the filibuster rules, so that the chamber can pass federal legislation protecting the right to reproductive freedom. If voters help us maintain our control of the House and expand our majority in the Senate by at least two votes this November, we can make Roe the law all across the country as soon as January.
Simply put: We must restore our democracy so that a radical minority can no longer drown out the will of the people. This will be a long, hard fight, and the path to victory is not yet certain. But it’s a righteous fight that we must win — no matter how long it takes. The two of us lived in an America without Roe, and we are not going back. Not now. Not ever.
Charles Koch. (photo: Patrick T. Fallon/WP/Getty Images)
The Court’s decision on Friday was a victory for clinic bombers, murderous snipers, stalkers of doctors, and vandals of all kinds.
The crowd began gathering a little after 10, when the word came down that the Court’s decision in the case of Dobbs v. Jackson Women’s Health Organization was every bit as bad as it was long feared to be. Pro-choice activists waved signs and chanted and sang. Anti-choice activists waved signs and chanted and sang, and prayed to whatever God they believe ordained that, if you have a Glock, you have more rights than if you have a uterus. Reading the 6-3 majority opinion, and the dissents thereto, is like wandering through a legal nightmare of the 19th Century. And in one line in his concurrence, Justice Clarence Thomas, who is the de facto Chief these days since, plainly, nobody’s listening to John Roberts any more, makes that awful specter into grim reality.
"In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, & Obergefell.”
They’re coming for it all, people. That’s what this carefully engineered radical conservative majority was bought and paid for. Senator Sheldon Whitehouse was absolutely right when he rose on the Senate floor last July 27, and tried to explain what he called The Scheme—the long-march campaign to buy a hardcore conservative majority on the Supreme Court.
You may recall that dark money emperor Charles Koch made waves when he told his right-wing network he could support neither Hillary Clinton nor Donald Trump in 2016. But the house of Koch and the house of Trump soon reached an accommodation. The house of Koch decided on a grand Trump gesture for their scheme donors—let their operative, Leonard Leo, handpick a list of Supreme Court nominees for Trump to announce early in the general campaign. For the price of known, scheme-approved Supreme Court prospects, peace might be acquired between house of Koch and house of Trump. Trump announced the list. For what it is worth, I think the rest of the accommodation was for house of Trump to turn over all energy and environmental positions in government to climate change deniers approved by house of Koch, and at the end of the day, it was probably a lot of the same dark money behind both of those accommodations…
…Leo and the Federalist Society's control ran deep. In Leo, the donors controlled an agent to orchestrate every aspect of Supreme Court judicial battles, and they provisioned him with dark money beyond imagining, and with a devious structure of front groups to hide behind while effectuating their scheme.
We are still learning about the scope of Leo's covert funding and influence, but a 2019 Washington Post expose painted a remarkable picture: a vast network of Leo-affiliated front groups; shell entities with no employees and vague connections to Leo cutouts; shared post office boxes; common contractors and officers across nominally separate entities, even some sharing Presidents; dark money funders, anonymous advertising, and enormous pay packages for operatives. It has the earmarks of a covert operation of the sort that is run by hostile countries in the intelligence arena. But this covert operation was run in America against America by Americans. By the Post's reckoning, $250 million in dark money flowed through this apparatus. Testimony before the Senate Judiciary Committee's Courts Subcommittee, which I chair, has since updated that number to $400 million.
You get what you pay for. And, on Friday, they got what they’ve dreamed of. The increasingly useless Chief Justice voted against overturning Roe, which was accomplished by a 5-4 vote, but he voted to uphold the Mississippi law that was the vehicle for doing the former in the first place. Nice work, there, John. And remember when everybody was screaming that Vermont shouldn’t be allowed to dictate marriage law to the whole country? Women’s bodily autonomy is now controlled by the state legislature of Mississippi, a state that has a worse rate for infant mortality than either Kuwait or Lebanon.
You get what you pay for. The decision was delivered by Justice Samuel Alito, who is running those parts of the Court these that Clarence Thomas is not. And here we go.
The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.” Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U. S., at 979 (Scalia, J., concurring in judgment in part and dissenting in part). That is what the Constitution and the rule of law demand.
Two points:
1. The leaked draft opinion was clearly a head-fake to buy some time. For weeks, we’ve heard that Roberts was brokering a Roe-saving compromise, however worthless that would have been. We also heard that the harshest parts of that draft opinion would be scotched during the deliberative process of the Court. That clearly was not the case. Roe was called “egregiously wrong” in the draft opinion and it was called “egregiously wrong” in the Court’s final decision.
2. Alito’s crocodile tears about enflamed debate and deepened division are goddamned insulting. The Court’s decision on Friday was a victory for clinic bombers, for murderous snipers, for the stalkers of doctors and their children, and for vandals of all kinds. Eric Rudolph won on Friday. So did Paul Hill, and John Salvi, and James Kopp. Ask a clinic escort who it was that “inflamed debate” after Casey managed to keep Roe on life-support for the last twenty years. Ask a doctor wearing kevlar who it was that “deepened division.”
The decision on Friday was so ghastly wrong and so ghastly predictable that it’s almost beside the point to quote the melancholy dissent from Justices Kagan, Breyer, and Sotomayor. It is on point and beautifully written but it is out of another time and another Supreme Court, one that recognizes that its ideological and judicial philosophies, as expressed by its opinions, have consequences in the real world. As Breyer’s dissent points out, Alito’s cheap, lachrymose maundering about debate and division ignores the division out in the states that already is ongoing, and will be much worse before (and if) it gets marginally better.
Enforcement of all these draconian restrictions will also be left largely to the States’ devices. A State can of course impose criminal penalties on abortion providers, including lengthy prison sentences. But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion. And as Texas has recently shown, a State can turn neighbor against neighbor, enlisting fellow citizens in the effort to root out anyone who tries to get an abortion, or to assist another in doing so. The majority tries to hide the geographically expansive effects of its holding. Today’s decision, the majority says, permits “each State” to address abortion as it pleases. Ante, at 79. That is cold comfort, of course, for the poor woman who cannot get the money to fly to a distant State for a procedure. Above all others, women lacking financial resources will suffer from today’s decision. In any event, interstate restrictions will also soon be in the offing. After this decision, some States may block women from traveling out of State to obtain abortions, or even from receiving abortion medications from out of State. Some may criminalize efforts, including the provision of information or funding, to help women gain access to other States’ abortion services. Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest.
Much of this is already happening. Much more of it undoubtedly will. States will be in conflict the way they haven’t been since the passage of the Fugitive Slave Act in 1850. Hey, you get what you pay for.
Justice Brett Kavanaugh and Chief Justice John Roberts. (photo: Getty Images)
There is no court legitimacy without public trust in the court.
What Thomas was telling us was that institutional respect is owed, blindly and without conditions. It chimed in the same key as then–Attorney General Bill Barr’s promise that unless Americans stopped disrespecting the police, the police might stop showing up to protect them. That isn’t how respect, or public trust, works. Those things are earned, over time. They can also be squandered, we are now learning, in the span of a few careless months.
Today, for the first time in constitutional history, the United States Supreme Court, by a 6–3 margin, took a fundamental constitutionally protected right away from half the population, a right around which generations of women and families have ordered their lives. Make no mistake, the same court that just 24 hours earlier had determined that the decision to carry a gun on the streets is such an essential aspect of personal liberty that states may not be permitted to regulate it has now declared that decisions about abortion, miscarriage, contraception, economic survival, child-rearing, and intimate family matters are worthy of zero solicitude. None. In their view of liberty, women were worthy of zero solicitude at the founding, and remain unworthy of it today. As Mark Joseph Stern notes, women will suffer. Some will be refused treatment for miscarriages, and some will be turned away from emergency rooms. Some will be hunted down, spied on, and prosecuted for seeking health care, medication, and autonomy. The majority glibly tells us that because the harms to these people are unknowable, they are not urgent—or at the very least, less urgent than the harms faced by people who would like to see more guns in public spaces.
But ordinary Americans do not think these harms are trivial. On Thursday, Gallup polling showed public approval for the Supreme Court to be at a historic low—25 percent. It’s a precipitous drop from the prior historic low the court received in September, which sat at about 38 percent. The six justices in the majority of Dobbs will comfort themselves that this doesn’t matter. They will tell themselves that they corrected a historical injustice and that they saved unborn babies. They will say that they have lifetime tenure in order to protect against the whims of the majorities. They will blame protesters and they will continue to blame the press. Even the much-vaunted centrism and pragmatism of Chief Justice John Roberts seems to have left the building. Notwithstanding the fact of his seemingly moderate concurrence—in joining with a majority that could not wait to do in three years what they could do in one—it is clear that he has lost his court, and that he is surely less worried about the public regard for the institution than we had believed.
The joint dissent, authored together by Stephen Breyer, Elena Kagan, and Sonia Sotomayor, is elegiac in tone. It includes a shoutout to the three Republican appointees who crossed the partisan line to preserve Roe in 1992’s Planned Parenthood v. Casey—not because they liked abortion but because, as they write, they chose to privilege the legitimacy of the institution over their personal wants. Breyer, Kagan, and Sotomayor wrote of the triumvirate that came before them, and of their unwillingness to harm the standing of the institution they loved:
“[T]he Court,” Casey explained, “could not pretend” that overruling Roe had any “justification beyond a present doctrinal disposition to come out differently from the Court of 1973…. To reverse prior law “upon a ground no firmer than a change in [the Court’s] membership”— would invite the view that “this institution is little different from the two political branches of the Government.” No view, Casey thought, could do “more lasting injury to this Court and to the system of law which it is our abiding mission to serve. For overruling Roe, Casey concluded, the Court would pay a “terrible price.”
The dissent laments the loss of Souter, O’Connor, and Kennedy as “judges of wisdom.” The three write, “They knew that ‘the legitimacy of the Court [is] earned over time.’ ” They also would have recognized that it can be destroyed much more quickly. Quoting Breyer’s recent lament that “it is not often in the law that so few have so quickly changed so much,” the three dissenters conclude: “For all of us, in our time on this Court, that has never been more true than today.”
Compare this to Justice Samuel Alito’s flippant dismissal of the pain soon to be heaped upon the court, the country, women, their children, and families, pain that is laid out in one meticulous amicus brief after the next:
We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly.
It is one thing to take away autonomy and dignity. It’s something else entirely to say that the hardship and jolt to the nation cannot be determined, and shouldn’t even matter.
The three dissenters take no joy in decrying the self-administered body blow the court has brought upon itself this term. There is no pleasure in seeing new fencing around the building, nor is there any delight in the protesters blocking D.C. streets or staking out justices’ residences. There is no mention of the fact that one of their colleagues is married to a partisan political operator who worked to support those who would have set aside the presidential election. There is simply the acceptance of that colleague’s abject refusal to take responsibility for it. This may well be one of the last published opinions of Stephen Breyer’s storied legal career, and it reads like a rebuke to his own aspirational hopes, including in a book published only this fall, for an institution he tried to protect until the end. Breyer always understood that public acceptance and regard aren’t demanded, and that for the court he is departing, it may not come back.
The dissenters understand where to place the blame for this loss of legitimacy. Even in the notoriously collegial Supreme Court, they place it squarely, and fairly, on a majority that has spent a year proving itself unwilling to moderate tone, language, conduct, and pace in exchange for the appearance of sobriety. The “stench,” as Sotomayor once warned, will not dissipate just because the majority can’t smell it.
There will not be a glorious peace that settles over the land now that this issue has been sent back to the states, no matter how much Justice Brett Kavanaugh wants you to believe it. There will be infighting among states, and vicious criminal prosecutions, and joyous theological efforts to secure future harms for gay partners and families struggling with IVF and women seeking contraception. The people who suffer the most will be the poorest, the youngest, the sickest—the people whose interests don’t even warrant acknowledgment by the majority opinion.
The dissenters sign off in “sorrow.” It is a sentiment that is surely directed at millions of women who will suffer appallingly as a result of this ruling. But it is also sorrow for an institution that was always rooted in an idea that there had to be a relationship between the public trust and judicial power. Justices are not kings. They can demand silent reverence, but it is not assured them. There have been plenty of us warning that this relationship was in jeopardy for many years, and the warnings were dismissed as efforts to undermine the court. Today’s decision confirms that, if and when the public is finally ready to give up on the court, there will be nobody to blame but the six justices who gave them nothing to believe in.
Abortion-rights and anti-abortion activists confront one another in front of the U.S. Supreme Court Building in Washington, D.C. (photo: Win McNamee/Getty Images)
The six Republican appointees are intent on returning America to the stone age
Even more ominous is Clarence Thomas’s concurring opinion, in which he argues that the same rationale the court used to overrule Roe should be used to overturn cases establishing rights to contraception, same-sex consensual relations and same-sex marriage. Thomas is pointing the way for the radicals on the court to take in the future.
If the due process clause of the 14th Amendment to the Constitution doesn’t protect abortion, says Thomas, the court “should reconsider” other cases that rely on the same clause: Griswold v. Connecticut, a 1965 decision that declared married couples have a right to contraception; Lawrence v. Texas, a 2003 case invalidating sodomy laws and making same-sex sexual activity legal across the country; and Obergefell v. Hodges, the 2015 case establishing the right of gay couples to marry.
Thomas says the court has a duty to “correct the error” established in those precedents. That’s not all. After “overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions” protected the rights they established, says Thomas.
I was in law school in 1973 when the Supreme Court decided Roe v Wade. Also in my class at the time was Clarence Thomas, along with Hillary Rodham (later Hillary Clinton) and Bill Clinton.
As I’ve noted before, our law professors used the “Socratic method” – asking hard questions about the cases they were discussing and waiting for students to raise their hands in response, and then criticizing the responses. It was a hair-raising but effective way to learn the law.
One of the principles guiding those discussions is called stare decisis — Latin for “to stand by things decided.” It’s the doctrine of judicial precedent. If a court has already ruled on an issue (say, on reproductive rights or gay marriage), future courts should decide similar cases the same way. The Supreme Court can change its mind and rule differently than before, but it needs good reasons to do so, and it helps if the justice’s opinion is unanimous or nearly so. Otherwise, the rulings appear (and are) arbitrary — even, shall we say? — political.
In those classroom discussions almost fifty years ago, Hillary’s hand was always first in the air. When she was called upon, she gave perfect answers – whole paragraphs, precisely phrased. She distinguished one case from another, using precedents and stare decisis to guide her thinking. I was awed.
My hand was in the air about half the time, and when called on, my answers were meh.
Clarence’s hand was never in the air. I don’t recall him saying anything, ever.
Bill was never in class.
Only one of us now sits on the Supreme Court. He and five of his colleagues — all appointed by Republican presidents, five by presidents who lost the popular vote, three by a president who instigated a coup against the United States — are now violating stare decisis. They have not given a clear and convincing argument for why. Thomas wants the court to reverse more than a half century of rights.
The Supreme Court is now firmly in the hands of radicals, eager to throw stare decisis out the window. They are part of the anti-democracy movement now threatening America.
U.S. Capitol Police in riot gear are seen in Washington, D.C., following the Supreme Court decision overturning Roe v. Wade on June 24, 2022. (photo: Bill Clark/AP)
With the end of Roe v. Wade achieved, the fascist right is setting its sights on shutting down all abortion solidarity and assistance.
With the end of Roe achieved, the fascist right is setting its sights on shutting down and criminalizing all crucial sites of abortion solidarity and assistance that reproductive rights networks are fighting to build.
To get a sense of their expansive, draconian agenda, we need only look at the model legislation drafted by the National Right to Life Coalition — the sort of laws that Republicans in state houses will be no doubt swiftly proposing.
“Traditionally, abortion laws relied on criminal enforcement to make pro-life laws effective,” the powerful anti-abortion organization wrote. “However, current realities require a much more robust enforcement regime than reliance on criminal penalties.”
That is, for these groups, criminalization of abortion providers is not fascistic enough.
The model legislation would seek to use Racketeer Influenced and Corrupt Organizations — or RICO — laws against anyone with any involvement in someone accessing an abortion. People could come under criminal suspicion for offering telehealth appointments; mailing or transporting abortion pills across state lines; potentially giving advice online about how to self-administer an abortion; or even “hosting or maintaining a website, or providing internet service, that encourages or facilitates efforts to obtain an illegal abortion.” All these activities would fall under “aiding and abetting.”
Drawing attention to the model law on Twitter, historian Thomas Lecaque noted, “IT DOESN’T STOP THERE THIS IS A BLUEPRINT FOR A CHRISTIAN NATIONALIST SURVEILLANCE STATE.”
The model legislation also makes clear that the route to enforcement should be vigilantism, following the lead of Texas’s vile Senate Bill 8. The law permits anyone to file a civil suit against any person who could be deemed to “abet” an abortion — potentially including an Uber driver who takes someone to an abortion appointment, or a therapist or pastor who has counseled a person on ending a pregnancy. The plaintiff need have no personal connection to the abortion seeker or fetus at all. The Texas law incentivizes anti-abortion crusaders to act as bounty hunters, promising $10,000 to those who bring successful suits against abortions performed in violation of the law.
We can expect a spate of such laws to pass in red states, and without Roe on the books, they can no longer be challenged on constitutional lines. The enemies of abortion access, in other words, won’t be letting up anytime soon — and reproductive rights will continue to be stripped from more and more people.
The Texas law was not built on a new concept. White supremacist, patriarchal rule in this country has always relied on the coalition of government forces, official police, and state-endorsed vigilantism.
There are many examples. The Jim Crow South, for instance, depended on the threat of lynching and mob violence to enforce white rule. From the fabled Texas Rangers to Klansmen to today’s right-wing militia groups armed with assault weapons, vigilantes have worked in tandem with immigration enforcement agents to hunt down and round up immigrants trying to cross the border. Before Kyle Rittenhouse shot dead two anti-racist protesters, he was thanked by police for his heavily armed presence in Kenosha, Wisconsin. Federal agents were advised by the Department of Homeland Security to publicly support the right-wing teen and claim that he “took his rifle to the scene of the rioting to help defend small business owners.”
As with the intersecting enforcement of racial hierarchy, we are seeing the shoring up of patriarchal power through a most American vigilantism, both outside of and inscribed into law.
We can be certain, too, that anti-abortionists will not wait to see whether all aspects of their bans and criminalization plans stand up in federal court before enacting them. The right makes laws realities through violence, and violent realities through law.
S.B. 8 went into law while Roe was still on the books, despite being in clear violation of its now-dead protections. And a 26-year-old woman was arrested in Texas on murder charges in connection to a “self-induced abortion.” The charges were dropped, since no such murder statute currently exists in the state, but the incident highlighted the ways in which zealous law enforcement already polices and criminalizes abortion. This will only get worse, and poor women of color will suffer the most under the right’s forced-birth regime.
This is not to say that bold legislative efforts in abortion-protective states cannot work in effective opposition to block some of these Christo-fascist fantasies. The end of Roe, as a forthcoming and crucial paper in the Columbia Law Review notes, brings about an entirely new battleground of interstate juridical conflict. States that support access rights will move to pass laws that protect abortion providers who treat out-of-state patients, while anti-abortion states will seek to pass laws to prosecute out-of-state providers.
Legislators in Connecticut, for example, recently passed a bill designed to protect abortion providers who assist patients seeking refuge from abortion-ban states. Those of us in other blue states must push our legislators to do the same. The far right’s plans to criminalize interstate travel and online abortion solidarity must be forced to contend with robust protections for those activities where such protections can be made into law.
As is all too clear, however, when it comes to Congress and the federal government — and most any case that reaches the Supreme Court — the fascists have the upper hand against feckless Democrats. The ever-steeper uphill battle for universal abortion access will thus rely on the wisdom, experience, and cunning of those who have already been fighting on the front lines for reproductive justice, in the legal gray areas, in the streets and by the side of anyone seeking to end an unwanted pregnancy, in the collective struggle for lives worth living.
In Massachusetts, Republican Governor Charlie Baker signed an executive order to protect abortion providers.
REPUBLICANS running to replace him in November oppose ABORTION.
https://www.mass.gov/news/governor-baker-signs-executive-order-to-protect-access-to-reproductive-health-care-services
"Women's bodies will now be surrendered to the state, subject to laws that favor the contents of their organs over the life that sustains them." (image: Unsplash and StMax89/iStock/Getty Images)
The sanitization of abortion talk is over.
In recent years, as they have proposed more and more restrictions on reproductive rights, they have had plenty of opportunities to air their shockingly primitive theories of the female body. An Idaho lawmaker suggested in 2015 that the uterus could be accessed within the digestive tract. A Texas regulator said in 2016 that abortions are performed by “cutting open people’s bodies”—as if the uterus, even with its ready-made exit route through the vagina, required an incision to retrieve its contents. And, of course, who could forget the Missouri congressman who claimed in 2012 that “legitimate rape” victims cannot get pregnant because “the female body has ways to try to shut that whole thing down”?
None of these would-be gaffes have dissuaded anti-abortion advocates from telling doctors what kind of care they can provide, and to which patients, and when. The human body as it exists outside the womb—its pain, its mess, its inconvenient and unpredictable foibles and realities—have always been beside the point of abortion bans.
But in the imminent wave of destruction wrought by the dismantling of Roe, the pregnant body will be ground zero. And understanding the complex realities of a pregnant body has never been more crucial.
Laws written by ideologues with no medical training, who invent imaginary procedures to dispel concerns about the hazards to women’s health, will determine how quickly a potentially fatal ectopic pregnancy can be treated. Coroners will paw through sewage to assess fetal remains from miscarriages. Women with wanted pregnancies will learn they are gestating a fetus with a critical anomaly and, months later, labor under coercion for hours, only to push out an infant without the necessary body parts to survive. There will be untreated infections; life-threatening spikes in blood pressure; bodies obliged to carry high-risk triplets instead of twins; and dangerous, desperate attempts at self-induced abortion, which will multiply as legislators crack down on the dissemination of abortion information.
After decades of debates that cloaked the issue of abortion in euphemism and legalese, the issue’s fleshly realities are about to become central to the conversation once more.
Historians agree that Roe v. Wade was decided, in part, because abortions could be dangerous and deadly when they happened underground. Legalizing abortion brought it into the fold of the medical establishment, where it was performed by trained professionals. Abortion had already been safer than childbirth, and it quickly became even more so.
In the decades that followed, the discourse on abortion split. Abortion-rights advocates, pleased with what seemed like a lasting Supreme Court precedent and intent on normalizing a procedure that hundreds of thousands of U.S. women sought each year, spoke of it in the sterile terminology of health care. Anti-abortion activists, in turn, homed in on the image of an idealized fetus: On the one hand, a pristine, beatific, ten-toed entity nestled peacefully inside a uterus, provenance unimportant; on the other, sensationalized post-abortion photos of blood and gore, implying the murder of an innocent.
Absent from both of these narratives, born as they were of an era of widespread legal abortion, were the particular indignities of forced pregnancy and childbirth—the bodily ramifications abortion rights were supposed to prevent and, thus, the most urgent argument for their defense and expansion. Neither side of the abortion discourse dwelled on the physical torment of those who continued to be denied the abortions they desired, though these women were the clearest reminder of the fate that awaited many more people were Roe to fall. These patients, many of them rural women who lived hundreds of miles from the nearest abortion clinic and low-income women of color who could not pay for their abortions through Medicaid, were ignored by both anti-abortion zealots who were happy to let them suffer and reproductive rights groups who prioritized other fights en route to more sanitized, less radical messaging.
Even as clinics shuttered across the U.S., there was no mass awakening to the physical punishment imposed on women who found themselves unable to exercise their “choice.” Court documents do not bleed. Committee hearings do not cramp, and tear, and cry out in pain. Women who bear unwanted pregnancies rarely approach the microphone, because to acknowledge the experience as a brutal burden would cast a shadow on the children they may continue to parent and love.
Often, at mainstream abortion-rights protests, the most visible nods to the bodies of pregnant patients have come in the form of increasingly outdated coat hanger imagery, twee protest signs that ask legislators to “keep your rosaries off my ovaries,” and the unfulfilled, abstracted promise of “my body, my choice.” Sometimes, in what appeared to be an attempt to destigmatize abortion, abortion-rights leaders have underplayed (or yassified) the stakes. In 2018, one month after Brett Kavanaugh joined the Supreme Court, Ilyse Hogue, then the president of NARAL Pro-Choice America, gave an interview in a shirt that read, “Pro-sciutto & Pro-Choice & Pro-secco”—a piece of fundraising swag promoted by the organization.
That sort of glib, catchphrase-y approach to reproductive justice missed the point by a mile back then, and it feels even more distasteful now. But the public discourse around abortion has undergone a drastic shift in recent months, beginning with the Texas ban last fall and intensifying with Samuel Alito’s leaked draft opinion that signaled the overturning of Roe. On the emboldened right, legislators are preparing to consign ever greater shares of the population into forced reproduction, especially as they do away with the exceptions for rape, incest, and patient health that have always served as shrouds of respectability for the anti-abortion movement. And among supporters of abortion rights, the flesh and blood of the issue has loomed back into view as Americans grapple with the knowledge that women’s bodies will now be surrendered to the state, subject to laws that favor the contents of their organs over the life that sustains them.
Some recent essays have emphasized the finer points of the physical punishment that roughly half of U.S. states will soon impose on unwilling women who commit the de facto crime of unintentionally procreative sex. “There is almost no part of the human body that does not transform in pregnancy,” wrote Irin Carmon in New York magazine. “One way or another, your flesh will be torn asunder, whether what you are carrying feels like an invited guest or an invader.” In the Washington Post, Kate Manning suggested that “we who oppose the annihilation of our bodily autonomy ought to plaster statehouses with photos of our episiotomy incisions, our Caesarean scars, our intravenous-line hematomas, our bloody postnatal sanitary pads and bloodstained bedsheets, our cracked nipples and infected breasts.” And those injuries may well be the result of a delivery that goes more or less according to plan.
Once the body—and its profound violation by anti-abortion laws—becomes the focus, the expansive consequences of abortion bans, which stretch far beyond unexpected pregnancies, are easier to see. As one employee at a Texas abortion clinic told me, it is impossible to criminalize one pregnancy outcome without affecting the others. Or, to put it another way, health care of all sorts will be mediated in ways that give preferential treatment to a patient’s reproductive capacity over the life she is currently living.
In Texas, where abortions became illegal after around six weeks of pregnancy last September, pharmacists are already refusing to dispense drugs prescribed for ectopic pregnancies and miscarriages. Multiple doctors in the state have told me about pregnant women whose water broke too early, weeks before their fetuses could survive outside their bodies. Normally, doctors would induce a miscarriage, since the pregnancy cannot be recovered. These days, they can’t provide that standard care in Texas without chancing expensive lawsuits. Instead, in each case I’ve heard about, doctors waited until the woman developed an infection—a great enough risk to her life to provide legal cover for a medically necessary abortion.
This exact scenario played out this month in Malta, where abortions are prohibited except when necessary to save a patient’s life. A pregnant U.S. tourist on a babymoon began bleeding at 16 weeks, and although all her amniotic fluid was gone and her placenta had begun to detach, Maltese doctors would not provide an abortion as long as they could detect fetal cardiac activity. They were prepared to wait until the patient was “imminently dying” to act. (She secured an emergency airlift to Mallorca for an abortion before she could develop an infection.) A similar sequence of events befell 31-year-old Savita Halappanavar in Ireland in 2012, several years before the country repealed its abortion ban. Denied an abortion for a nonviable fetus whose cardiac activity persisted after her water broke, Halappanavar died of sepsis.
This is what abortion bans do to pregnant bodies, and what we should expect will transpire in jurisdictions that restrict abortion in days and weeks to come. In ideal circumstances, with full reproductive autonomy and access to health care, pregnancy is already—as an evolutionary biologist at Harvard put it, a decade ago—a high-stakes game of tug-of-war between patient and fetus. When certain health care interventions come with a prison sentence attached, it’s no longer an equal match.
From BRAND NEW CONGRESS:
Yesterday, Rep. Alexandria Ocasio-Cortez gave an impassioned speech on the House floor in response to the Supreme Court’s disastrous decision to overturn Roe v Wade. In case you missed it, here’s an excerpt:
“I think it's important for us also to tackle this myth that this is somehow about babies or children or life. Because the same individuals who purport – claim to be protecting life – fight against universal healthcare.
Do they believe in universal childcare? Do they believe in life after birth? From their policy positions, I assure you, the evidence is lacking.
A party and individuals who claim to protect the lives of children – just weeks after over a dozen children died in Texas – now claim to support their life. The lives of the young. Who are we protecting? Who does this protect? No one. Overturning Roe puts every single one of us in danger.”
Rep. Alexandria Ocasio-Cortez
June 24, 2022
While Democratic leadership staged empty publicity stunts in the wake of yesterday’s ruling, AOC, Cori Bush, and all of our BNC representatives are leading the hard conversations we need to have about our path forward.
This ruling represents the first time in living memory that the Supreme Court has fully revoked an established constitutional right. And the right-wing extremists on the court have made it clear: they are just getting started.
We have a hard road ahead of us, but there IS a path forward. There’s a new generation of leaders finding ground in Washington, people that Brand New Congress helped recruit and elect with your support.
There are several ways you can make a difference right now.
Abortion bans are already coming into effect in many states, but there are many places where someone needing abortion care can still get the support they need. If you or someone you know is in need of abortion services (including financial resources for those who have to travel), you can find the nearest provider and other resources here.
You can support people who need financial assistance to get abortion care with a contribution to the National Network of Abortion Funds, which distributes funds to clinics all around the country providing low and no-cost abortions to anyone who needs one.
And you can help Brand New Congress elect more fearless leaders who will stand up for abortion rights, LGBTQIA+ rights, racial justice, gender justice, and more. Your contributions help us recruit, train, and support bold, working class progressives for the U.S. House and Senate. Click here if you would like to make a contribution: https://secure.actblue.com/donate/bncforward2022
In the coming months we will have to do all the things.
We will have to elect better leaders – people who really represent us. We will have to protest. We will have to organize mutual aid. We will have to defy unjust laws and demand change.
But there IS a path forward. In this moment, we must choose to be courageous and defiant. And we must take care of each other – and ourselves, because this is a long fight we are in.
Abortion is healthcare. Healthcare is a human right. And human rights are non-negotiable.
In solidarity,
Brand New Congress
Since 2016 BNC has led the way in advancing popular policies like Medicare for All and the Green New Deal. We invest EARLY to help grassroots candidates succeed. We recruited and elected AOC in 2018 and Cori Bush in 2020 alongside Jamaal Bowman and Rashida Tliab. And we have our first win of 2022: Rep. Sheila Cherfilus-McCormick won her primary by FIVE votes thanks to BNC.
We have elections from now until November, and our candidates are counting on your support. Pitch in today and join us as we take over Congress and return power to the people.
Special Coverage: Ukraine, A Historic Resistance
READ MORE
Follow us on facebook and twitter!
PO Box 2043 / Citrus Heights, CA 95611
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.