My father taught me that it was always best take a breath and calm down before responding in the moment out of anger. It was good advice and it still is. But, well, I’m absolutely livid. And I have this blog. Sorry, Dad. I did at least edit my first draft to remove (most of) the expletives.
Five justices of the Supreme Court just overturned Roe v. Wade and Casey v. Planned Parenthood, reversing a 50-year-old precedent. While it wasn’t a surprise, it was still a gut punch. As of today, roughly 40 million women no longer have the right of autonomy over their own bodies.
The majority‘s claims of states’ rights on the issue of abortion is a sham, particularly when the same jurists just signed another opinion – in the same week – telling states to take a hike by overruling long-standing state-level concealed-carry gun laws. Again unsurprisingly, the current Supreme Court majority has made it clear that they recognize states’ rights only when they feel like it.
On the issue of abortion itself, there was a middle ground – favored by Chief Justice Roberts – that would have weakened Roe & Casey but would not have overruled them. While not a perfect solutions for anyone, it would have been a reasonable compromise. This, however, was not nearly enough for the five justices.
Ignoring the essential judicial concept of stare decisis and completely discounting the fact that 80% of Americans were in favor of retaining Roe in some form, five people summarily imposed their will upon everyone else in the country.
And, as bad as the decision is, the downstream reality is actually much, much worse.
Make no mistake: This ruling was a purposeful middle-finger by five individuals to the Constitution, to their judicial oaths, and to the American populace. And this is just the beginning.
Alito has been an unapologetically angry jurist for decades, railing against any and all social or cultural changes that, in his mind, diminish the predominance of the straight white male with a gun that his version of the Founders so obviously wrote the Constitution to protect. Thomas and Kavanaugh are still pissed off that Democrats had the gall to even listen to women who felt harassed by them – and the two are positively orgasmic over any opportunity to remind their tormentors that they were confirmed anyway. Barrett, a Scalia wanna-be without the intellectual heft, has consistently shown her preference for deciding cases based upon her personal worldview and only then searching for legal justifications – or, more likely, simply latching onto the justifications of others. Gorsuch, another Scalia wanna-be, but with considerably more intellectual prowess, is generally more subtle with his Constitutional interpretations, but is still predisposed to invent justifications to impose his own version of morality upon others.
Thomas Jefferson himself understood that interpretations of the Constitution would need to be dynamic or could otherwise be likened to requiring a man to wear the same coat he wore as a child, disregarding any concept of growth. Scalia, on the other hand, championed the concept of originalism – favoring an interpretation of the Constitution based solely on the words as written. While a young Scalia was at least consistent in his philosophy, he modified his approach over time to suit his own preferences. In turn, the majority of current jurists have further morphed the concept of originalism into a pseudo-intellectual cloak to restrict government actions that they don’t personally favor and to enable government overreach when it suits their purposes.
Related to the issue of bodily autonomy as just trashed by the Court, there will now undoubtedly be countless new laws and rulings to restrict or eliminate access to medication abortions, access to contraceptives, interstate commerce for pregnancy-related medications, interstate travel to obtain reproductive medical care, third-party assistance to individuals who seek such care, a woman’s conduct during pregnancy, and even access to related information. The floodgates are now open for all manner of intrusive measures to make women considerably less than second-class citizens.
Women, however, are definitely not the only people impacted by this remarkably broad ruling. By limiting the application of the Constitution’s due process clause, a vast number of other Supreme Court rulings are now in question. And, lest anyone believe that to be an overly dramatic concern, Thomas took the time to make damn sure we didn’t miss it. In his concurring opinion, he specifically stated that this ruling should now be applied to overturn other Supreme Court decisions related to the right to privacy – which, apparently, no longer exists.
Note that “decisional privacy” has long been considered an implicit right derived from other rights that are explicitly enumerated in the Constitution. The number and scope of rulings based upon the right to privacy are truly massive and the potential impacts of overturning them could seriously transform American society.
A short list of rulings that are now directly on the table include decisions that allowed same-sex marriage, same-sex sex, consensual extramarital sex regardless of orientation, the use of contraceptives, marriage outside of one’s race, refusal of unwanted medical treatments, and the implementation of numerous data privacy laws related to healthcare records, online search histories, cell phone location data, etc.
Indirectly, the decision by the majority to easily disregard precedent upon precedent also signals their willingness to do so for other Supreme Court rulings unrelated to privacy. In their dissent, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote that “the Court betrays its guiding principles” and that the decision “undermines the Court’s legitimacy”.
Or, to put it another way, the Supreme Court is now officially just another bunch of partisan hacks – but with lifetime appointments and unchecked power.
This is a sad day for America.