23 January 23
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On this non-50th anniversary of Roe v. Wade, it’s not just the repeal of the right to abortion that makes the new order clear.
Roe was never perfect; a floor as opposed to a ceiling when it came to the complex world of reproductive justice. It was always less. But Roe, for all its rickety trimester framework, and its progeny, including Casey, for all of its oozing subjective squish tests, at least created a basement—a relatively certain set of guardrails against which states, physicians, and pregnant people could form judgements about their lives; in intimate moments of personal violence, wrenching illness, joy turned to sorrow, and worse.
Roe offered limited protections, yes, but also promised clarity. This was by design. Justice Harry Blackmun, the Nixon appointee who penned the original 7–2 decision in Roe, said as much when Casey threatened its central tenets in 1992. In his Casey opinion, Blackmun wrote: “In the 19 years since Roe was decided, that case has shaped more than reproductive planning—‘[a]n entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions.’ ”
One of the more mocked lines in Casey became Justice Kennedy’s indulgent musing that “liberty finds no refuge in a jurisprudence of doubt.” But in 2022, the demise of Roe, the reversal of binding precedent, threats to stare decisis, the quiet end of the Lemon test, the abuse of the shadow docket, the flouting of ethics rules, and now an unsolvable crime at the high court, make plain that we all move about and try to order our daily affairs within a jurisprudence of doubt. Maybe Justice Kennedy wasn’t just high on his own supply.
The inability to find the leaker is part and parcel of this story. The betrayal is shattering to the justices, yet they participated in an investigation predicated upon their own unassailable honor, which is unfortunately what remains in question. Maybe it’s no accident that the same Supreme Court that claims to be shattered by the leak of the Dobbs opinion also signed off on an investigation that could only point to a clerk or employee. The investigators showed the same zeal for accountability that has come to characterize the current Supreme Court’s endlessly flouted “ethics” “rules,” and the same commitment to certainty and predictability as its current shape-shifting docket. The fiction that the nine justices are above being policed is paramount—the justices were questioned in the investigation of the leak, but it was deemed unnecessary to ask them to sign sworn affidavits—and the public is asked to trust they are above suspicion. The leak of the opinion that created a national state of chaos around reproductive rights and bodily autonomy has thus become its own national story of chaos around the court’s procedures, its policies, and its integrity. We are, again, bound by the high court’s indeterminate rules. And they are bound, again, by nothing.
Which is why the not-anniversary of Roe seems like a perfect time to celebrate the not-holding of Dobbs. The Dobbs majority argued that the rule in Dobbs was simple: It cleanly returned the issue of abortion to the states, where it belonged. But in fact, in about half the states where Dobbs has changed things, there is now a regime of fear and uncertainty about what is lawful, and what is criminal, what is an exception and who gets to decide (and who gets to collect the bounties). Story after story about physicians afraid to offer care, abortion providers chilled from remaining in practice, pregnant women going from state to state seeking lifesaving health care, sometimes while they are bleeding out or waiting for sepsis to set in, now abound. This new jurisprudence of doubt will kill and harm and threaten lives. And the bottomless questions raised after Dobbs—about interstate travel, about free speech and advocacy, about federal preemption? Who really knows? Wondering if your kid can drive their pregnant girlfriend from college to an out-of-state clinic? Good luck. Trying to determine whether pharmacists can refuse to provide emergency birth control or methotrexate to treat chronic illness? Who can say?
It is this uncertainty and this chaos and this pain that pushes everything underground, out of the light, and into the darkness in which women’s health and safety foundered in the decades before Roe. That powerlessness—the need to rely on whisper networks and health providers and the restraint of prosecutors was the very opposite of liberty. So much so that it was ultimately deemed unacceptable in Roe. Now, we are back there, trying to figure out whose rights still exist, in which states, and who will be investigated and who will be charged. This, too, is a return to being un-free.
Of course, it was never just abortion implicated in the end of Roe. It’s contraception, and adoption and even parenting itself, as Dorothy Roberts continues to warn us. It’s IVF and surrogacy. As states investigate those who miscarry, and those who seek and provide information about ending a pregnancy, we will begin to understand what the limits of regulating and punishing motherhood will really be. The uncertainty goes beyond what the law is now, to what the law might soon be, as states change lanes almost weekly. We live in persistent daily uncertainty as to how things might continue to unfurl, thanks to a supermajority of justices who have shown us that they have no respect for precedent and that we can just watch for what falls next. After Roe, the list of questions on the docket starts with marriage equality and ends, well, who knows where. As Justice Breyer wrote, in one 2019 dissent, “today’s decision can only cause one to wonder which cases the Court will overrule next.” It is this not knowing that makes us not free.
For centuries, men benefited from the jurisprudence of certainty while women and vulnerable people did their best to navigate the jurisprudence of doubt. We were told to trust that the lawmakers would protect us. For centuries women and vulnerable people fought to upend that power imbalance: Rules for you, power that answers to nobody for the rulemakers.
Maybe the irony of never learning who leaked the Dobbs opinion is that the court claims to care deeply yet doesn’t care to find out. And that is what “rules for thee but not for me” looks like. Maybe a population that lives in an unsettled legal system in which precedent, predictability, and order are gone, to be replaced by outcomes that are as yet undetermined, shouldn’t feel entitled to an accounting from the court about who stole a document in an unprecedented national betrayal that became part of another unprecedented national betrayal called Dobbs. The not-anniversary, the un-investigation, the expanding national jurisprudence of uncertainty—that’s the new rule of law.
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