Remember those Michael J. Fox movies where Doc Brown invents a time machine out of a DeLorean sports car and Marty McFly travels back to the past and forth to the future? On Friday, the United States Supreme Court took a ride on a time machine, back to the past, way back to the 19th Century.
On that day, June 24, 2022, five backwards members of the highest court in our land overruled 50 years of settled law on reproductive rights with its decision in Dobbs v Jackson Women’s Health Organization, overturning its historic decision in Roe v Wade. Why? Because, according to these five Justices, there was no right to an abortion in 1868 when the 14th Amendment was ratified.
Whether you are pro-life or pro-choice on the issue of abortion, you should be seriously concerned. On June 24 there was a fatal collision at the intersection of law, religion, and politics, and the country as we know it was seriously injured, currently on life support. Let’s put the rationale for this draconian decision in its proper perspective.
Justice Samuel Alito, writing the majority opinion for the court, wrote that the Constitution does not confer a right to an abortion and, further, that the 14th Amendment “does not protect the right to an abortion.” For the term “liberty” to apply, says Alito, the fundamental right seeking protection must be “deeply rooted in history and tradition” and “essential to our nation’s scheme of ordered liberty.” He cites excessive fines and the right to bear arms as examples. He cautions his brothers and sister on the court to not “fall prey” to the “unprincipled approach” of “freewheeling judicial policymaking.”
These are great soundbites, but they ignore two critical contextual points:
In 1868, when the 14th Amendment was ratified, many of the rights we enjoy in modern times were not contemplated by Congress or the courts. Furthermore, in 1868, as pointed out by the poignant and blistering dissent authored by Justices Breyer, Kagan, and Sotomayor, women had no legal status apart from their husbands and had no right to vote. In those times, neither our Constitution nor any constitutional amendment protected men and women equally. Women were second-class citizens—of course, there was no consideration of abortion rights in 1868! Today, a woman’s “inferiority” (what else would you call it?) is no longer consistent with our government’s understanding of the Constitution (Or is it?)
Both the Constitution and the 14th Amendment were ratified by men. There was no thought given to or consideration of the rights or even the needs of women.
Yet, to further their own political and/or religious beliefs, these five Justices want us to believe that they must view abortion, indeed, many other deeply rooted individual rights as did the framers of the 14th Amendment. What utter nonsense! These five also give the framers far too little credit. The Constitution was designed to be a living, breathing document, written with the understanding that the country and the world would change. That’s why rights are defined so broadly. It is a document designed to change with the times.
Recent examples of this concept are found in the Obergefell (same-sex marriage) and Loving (interracial marriage) decisions. Justice Clarence Thomas, a Black man, concurred with the opinion in Dobbs. He is married to a White woman. In 1868, how would the ratifiers have viewed interracial marriage? Do you think they contemplated it conferring the right of White and Black people to marry each other? Was interracial marriage protected?
Richard and Mildred Loving were sentenced to a year in prison for marrying each other. With the Loving decision in 1967, the Supreme Court ruled that laws banning interracial marriage violate the 14th Amendment. The decision was unanimous. After the Roberts Court overrules Loving because interracial marriage was not a protected right in 1868, will Clarence Thomas sign on to the decision and surrender himself to the authorities?
The term stare decisis is important here. It literally means to “stand by things decided” and refers to the policy of following precedent, previous judicial decisions, to decide cases. Can you see Justice Alito yawning, as he so casually ignores the Roe precedent?
Ignoring Precedent
With a presumed straight face, he argues that the justices may ignore stare decisis if no seriously egregious societal harm will result. He references Brown v Board of Education, the landmark civil rights decision that overturned Plessy v Ferguson and the concept of “separate but equal.” He argues that Roe/Dobbs does not reach the level of Plessy/Brown, another trip back to the past.
Who is he kidding? No societal harm? Seriously? His “back to the states” proclamation may sound simple, but we now have 50 years of reproductive medical infrastructure to dismantle, state-by-state. According to the dissent in Dobbs, 18 percent of pregnancies end in abortion and one-quarter of American women will have an abortion before the age of 45.
Terminating a pregnancy, carrying one to term, adoption, parenthood, employment, education, living conditions, career choices, family relationships, intimacy, and countless other decisions hinge on the right to choose. Rent-paying clinics populate office buildings and shopping centers. Doctors, nurses, administrative, clerical, engineering, financial, maintenance staff are employed in these centers. Hospitals rely on them for patients. Surrounding businesses rely on them as customers.
Worse, many states will accept no legitimate exception to carrying a child to term. Rape, incest, health of the mother, health of the fetus—none of this will matter. Women and children will die because of the callousness, lack of foresight and empathy of this Supreme Court majority. Families will suffer financial ruin—the wealthy will continue to have access, while the poor, those unable to travel to friendlier venues, will suffer terribly.
And what of the rest of the world? The dissent notes that an evaluation of foreign countries’ policies on reproductive rights “cuts in favor of adhering to precedent.” Country after country permits safe, legal abortions, along Casey timeframes. Virtually all recognize harm to the woman’s health as an exception—many countries help cover the cost of an abortion. With this Opinion, the United States, alone, becomes mired in the past.
An article about the cruelty of this decision and the anti-reproductive rights movement cannot be concluded without mentioning so-called “religious rights” justifications proffered by states like Mississippi.
Yes, folks, the Dobbs decision has been foisted upon us by none other than Mississippi. According to statistics brought forward by the dissenting opinion in Dobbs, 62 percent of Mississippi pregnancies are unplanned, but the State does not require insurance carriers to cover contraceptives. It prohibits educators from providing contraceptive use education. Mississippi does not mandate paid pregnancy leave. Its strict eligibility requirements of nutrition assistance leaves many without medical care or necessities.
Mississippi rejected federal funding to provide a year’s worth of Medicaid coverage to women after giving birth even though 86 percent of pregnancy related deaths in the State are attributed to postpartum complications. Mississippi also has the highest infant mortality rate in the country. According to the dissenting opinion, it is approximately 75 times more dangerous for a woman to carry a pregnancy to term in Mississippi than it is to have an abortion. So, what does all this mean? I’ll quote from the dissenting opinion:
“States with the most restrictive abortion policies also continue to invest the least in women’s and children’s health.”
If any State in the union needed safe and affordable reproductive rights initiatives, it is Mississippi, but its leaders’ political and religious preferences obstruct the crucial needs of its own citizens and modern society. Other similarly governed southern states will follow. They remain stuck in the past, along with our United States Supreme Court. Shame on these hypocrites.
Welcome to 1868 America.
Mark M. Bello is an attorney and award-winning author of the Zachary Blake Legal Thriller Series, ripped-from-the headlines, realistic fiction that speak truth to power and champion the rights of citizens in our justice system. These novels are dedicated to the social justice movement. They educate, spark discussion and inspire readers to action. One of these novels, Betrayal High, was written in response to school shootings. For more information, please visit www.markmbello.com.
Mark also hosts the Justice Counts podcast with Lean to the Left editor & publisher Bob Gatty, presenting bi-weekly interviews focused on social justice.