Dobbs v. Jackson Women’s Health Organization, does this case sound familiar to you? Probably not. How about Roe v. Wade? That one rings a bell, right? Obviously, it is the landmark 1973 abortion rights case. Dobbs? Sources are reporting that this will be the next definitive abortion case. In short, The United States Supreme Court is poised in Dobbs to overrule Roe v. Wade. This country’s citizens will be talking about Dobbs for decades.
Listen:
Politico has published a leaked document purporting to be Justice Samuel Alito’s majority opinion. Alito lambasts the Roe Court for applying the 14th Amendment to a right to privacy to have an abortion. Alito’s reasoning? That a right to an abortion is “not deeply rooted in our nation’s history and tradition.” He argues that stare decisis (the legal principle that precedent must be adhered to) does not apply because, essentially, Roe was so wrongly decided and constitutionally inaccurate that its precedent can be ignored.
I must confess. I have never been completely confident that Roe was constitutionally sound or bulletproof. However, the longer it endured, the more “deeply rooted” it became. Fifty years later, it is absurd to suggest otherwise.
Alito tried and failed to address the issue. He posits that abortion has always been controversial. In 1973, he argues, every state in the union had laws restricting abortion in one way or another. Many states recognized a right to life in an unborn fetus and others had ancient laws on the books that referred to “quickening,” essentially the first time a woman felt fetal movement, as the beginning of viable human life in the womb.
While Alito is correct about pre-Roe abortion law in 1973, every recent Supreme Court nominee appointed to the current Court testified before Congress that Roe was settled law. Does ‘settled’ not mean ‘deeply rooted in our nation’s history and tradition?’
I submit that this so-called ‘deeply rooted’ argument is a baloney sandwich. The 14th Amendment can rationally be applied to protect women’s reproductive rights. What’s right for our country or our constitutional rights is not premised upon the existence or non-existence of deep roots. SCOTUS decisions in Brown v Board of Education and Plessy v Ferguson are cases in point.
Plessy declared racial segregation constitutional. It stood for the concept of separate but equal—so long as public facilities and services were available to black citizens—it didn’t matter that Blacks couldn’t use the same facilities as Whites. Thus, for decades, we had “whites only” and “colored only” toilets and drinking fountains in this country.
Were these segregated conditions deeply rooted in our society and culture, our nation’s history and tradition? You bet they were! Plessy and so-called Jim Crow laws stood for six decades. But that didn’t stop SCOTUS from eventually doing the right thing. In 1954, the Court decided Brown v Board of Education, overruling Plessy. Why? Because separate but equal violated the 14th Amendment to the Constitution. No state can deny any person equal protection of its laws.
Prior to 1967, many states had laws banning interracial marriage. Were those laws rooted in our nation’s history and culture at the time? That didn’t matter to SCOTUS—in its 9-0 decision in Loving v. Virginia, the Court ruled that laws banning interracial marriage violated the 14th Amendment’s Equal Protection and Due Process Clauses. In 2015, Loving was used as precedent to permit same-sex marriages in Obergefell v Hodges, decided on Equal Protection and Due Process Clause standards.
Don’t be fooled. If this leaked opinion is, indeed, the opinion in Dobbs, the case was not decided on constitutional grounds. It was decided on political grounds.
I have long warned that sitting out elections has consequences and the chickens have finally come home to roost. We had the votes; we, too often, failed to cast them, especially in 2016.
How do those of you who argued that Hillary Clinton was a flawed candidate feel now? Your indifference handed three SCOTUS picks to the far right. Do you think three Clinton appointees would have supported this Dobbs decision? Alito would be writing a minority, dissenting opinion.
At the end of his opinion, he refers to the politics:
“This court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling people to move on. Whatever influence the Court may have on public attitudes must stem from the strength of our opinions, not an attempt to exercise raw judicial power. We do not pretend to know how our political system or society will respond to today’s decision . . . and even if we could . . . 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.”
Seriously, Justice Alito, politics played no part in your decision? You applied ‘longstanding principles of stare decisis’? Give me a break!
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, dedicated to the social justice movement, are not only enjoyable, they educate, spark discussion and inspire readers to action. 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.