By the Hingham Democratic Town Committee, in collaboration with member attorneys
When any US citizen, regardless of their political affiliation, reads the leaked draft of the US Supreme Court’s purported majority opinion in the Dobbs v. Jackson case, they should be, at the very least, alarmed by the Court’s willingness to turn the US Constitution from a shield which protects our rights as citizens into a sword which assaults them. If the draft, which was revealed to the public on May 2, 2022, is in fact issued as the majority opinion, this would be an unprecedented constriction of constitutional rights in the United States. The Court in the Dobbs draft does not conceal its position that the liberty promised to citizens in the Fourteenth Amendment of the Constitution should be limited. In doing so, the draft espouses the disconcerting premise that inherently intimate decisions regarding privacy and bodily autonomy should be transferred from the individuals affected by such decisions, and instead placed in the hands of legislators. Regardless of one’s opinion on abortion, every citizen of the United States should be concerned about such an approach to individual liberties. Had a referendum on whether the state should permit interracial marriage been offered to the public in 1967, the majority of the citizenry in many states would likely have voted to deny such a liberty. Instead, we have Loving v. Virginia, which, ideally, protects the right of the individual from public sentiment and oppression.
Dobbs seeks to justify its reversal of Roe and Casey in an almost gleeful willingness to limit liberty by holding onto what is inappropriately called "Originalism". Those justices that claim to be Originalist in their interpretation of the Constitution point out that authors of the Constitution, including the Fourteenth Amendment, did not write in "abortion" as an expressly enumerated right, and we have no evidence they intended such right to be included, and so seek to treat the Constitution as itself an express limitation against rights not enumerated. In doing so, they ignore the plain aim of the Ninth Amendment, which states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Those rights not expressly described are ours, that is the true Originalism. And before anyone rushes to argue "equal protection" for the unborn, know there is no refuge there. The draft has unequivocally stated this is no examination of personhood, and thus does not employ an equal protection argument, which may purport to expand constitutional rights. Instead, the Dobbs draft is an open and transparent seizure of constitutional rights.
What other rights may ultimately be seized? The US Supreme Court is invariably selective in choosing the cases it ultimately hears and decides. In selecting Dobbs, but refusing to stay enforcement of S.B.8 (the Texas statute banning abortions at six weeks and allowing private individuals to bring suit against providers), this Court appears to have been interested in seeking out Dobbs subject matter for hearing. In doing so, and as is apparent in the draft decision, the majority of the justices would overturn a half-century of settled legal precedent, including Roe v. Wade, Casey v. Planned Parenthood, and the two federal courts which ruled in favor of the Jackson Clinic. This unusual interest in the matter at hand, and willingness to overturn prior case decisions, may rightfully chill public confidence in the US Supreme Court. It is difficult to assume that this Court will cease at review of abortion rights, and spare reexamination of contraception, LGBT rights, same-sex marriage, and other liberties inextricably dependent on the constitutional right to privacy. If and when the Court pulls the rug out from under another constitutional right, however, they would be wise to ask: will anyone treat our ruling as established law? Or, will the public regard such ruling as a temporal, political product of the money spent on the Culture Wars, which will ultimately and inevitably be condemned to spend eternity in the loathed hallways where Plessy v. Ferguson (the US Supreme Court case which upheld racial segregation, later overturned by Brown v. Board of Education) resides?
The 14th amendment guarantees all citizens equal constitutional rights, one of which is the right to life, so I don’t see the connection here.
The 14th Amendment has a lot more in it than guaranteeing equal rights (though a case can be made that childbearing-age women being forced by the government to risk their lives for another being – “life” or otherwise – is an equal rights issue). The author is highlighting that in previous court decisions, not just Roe, but a number of civil rights decisions over the past several decades, the 14th Amendment’s right to due process and equal protection have been cited without the specific right being specifically mentioned in the Constitution. Examples include the right to marry other consenting adults regardless of race or gender composition of the couple involved (i.e. Loving & Obergefell), separate being inherently unequal (Brown), etc.
Alito’s argument in the draft majority opinion is that since the right to terminate one’s pregnancy is not specifically stated in the 14th Amendment and there isn’t a long-standing tradition of this right in the US (whatever that means), it doesn’t exist. By that standing, neither do a lot of other rights many of us take for granted. Even if you don’t like abortion, this is a really horrifying way of arriving at overturning Roe.
The right to life guaranteed to all CITIZENS, not a fetus, that is the connection. The state, or country, cannot own a person’s body, or rent it, or force it to make a personal
decision not of its choosing.
This is a well-reasoned, very valuable and yes, very alarming piece. It highlights the intellectual bankruptcy and incompetent, fundamentalist jurisprudence of constitutional “Originalism”. This faction of constitutional interpretation effectively seeks to freeze the world as it existed in the time of the Founders and thus precludes our evolution toward a more just and compassionate society. It rejects the necessity that the Constitution must be viewed as a living document, a flexible structure that can encompass situations and issues never envisioned by the Founders.
The observation that “It is difficult to assume that this Court will cease at review of abortion rights, and spare reexamination of contraception” and other liberties is especially chilling. The authors warn against the danger that the public will simply reject the Court’s simplistic interpretations as a product of the shifting sands of politics and culture wars. It is exceedingly difficult to govern without the willing concurrence of the governed. We need only to look to the Catholic Church and contraception for a perfect example:
According to Rachel K. Jones of the Guttmacher Institute, “Data shows that 98 percent of sexually experienced women of child-bearing age and who identify themselves as Catholic have used a method of contraception other than natural family planning at some point in their lives.”
98 percent! This in spite of the fact that the Catholic Church teaches that use of such contraception is a “mortal sin” sufficient to condemn the unrepentant to Hell. But Catholic women don’t ask their pastor for permission when they need refills – they simply call up their local pharmacy. In effect, they are practicing mass nullification by consensus of a fundamental Church teaching which they view as a tortuously concocted dogma posing an untenable intrusion into their private lives. Even with the threat of eternal damnation, they have the moral courage to defy an overweening ecclesiastical authority which risibly proclaims itself infallible. This Supreme Court risks precipitating a similar rejection of its own authority.