A woman’s right to an abortion is not protected by the U.S. Constitution, according to a Supreme Court majority, because abortion was illegal when the Constitution was written and ratified and in most states was illegal when Roe v. Wade was decided in 1973.
And that should worry us all.
The Constitution doesn’t mention abortion. Therefore the right to an abortion is not “enumerated,” or specifically named in the document. If it is to be protected as an “unenumerated right,” it must be a right that is “deeply rooted in this Nation’s history and tradition, and … an essential component of ‘ordered liberty,’” the majority ruled. The right to an abortion doesn’t meet that test, according to the majority.
Roe was “egregiously wrong,” the Court said today.
Are you comfortable knowing the High Court would limit your rights to those recognized in the 1800s? I’m not.
The world has changed a lot in the 200-plus years since then and the Constitution should not be frozen in time. The Court once acknowledged this. In the decade or so before Roe, the Supreme Court developed legal doctrine that recognized unenumerated substantive rights protected by the Constitution’s Due Process Clause. The right of a married couple to obtain and use contraceptives in their own bedroom, for example. (Griswold v. Connecticut, 1965) The right of two adults of the same sex to have private, consensual sex, for another example. (Lawrence v. Texas, 2003) Or the right of two adults of the same sex to marry and enjoy the same benefits under law as married persons of the opposite sex. (Obergefell v. Hodges, 2015)
But don’t worry, wrote Justice Alito. Today’s decision in Dobbs v. Jackson’s Women’s Health Organization won’t erode those other rights. Today’s “decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” Alito wrote for the court’s six-member majority.
Nonsense. The same reasoning relied on by the majority to overturn Roe v. Wade applies to the precedents of Griswold, Lawrence and Obergefell. It’s really just a matter of time before a majority of the court gets behind turning the clock back to the 19th century on these unenumerated rights, too.
As the three dissenting justices wrote, “The right Roe …recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. They are all part of the same constitutional fabric, protecting autonomous decision-making over the most personal of life decisions.” To claim today’s decision will not affect those other rights is pure hypocrisy, the dissenters wrote.
And today, Justice Thomas said the quiet part out loud. In his concurring opinion, Thomas wrote “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell — because any substantive due process decision is ‘demonstrably erroneous,’” he wrote. As such, the Court has a “duty to correct the error,” according to Thomas.
Thomas would go even further. In his concurring opinion in Dobbs, he wrote:
“[I]n future cases, we should ‘follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away…
“Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.“
This is dangerous, despicable thinking, with far-reaching implications for our freedom and our future.
Regardless of where you stand personally on the question of a woman’s right to an abortion, today was a dark day in America.
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