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We’re entering a brave new post-Roe world…


First page of today’s Dobbs v. Jackson Women’s Health majority opinion and dissent.

Unless you’re living in a cave or outside range of cell service, you probably heard the news that today the US Supreme Court overruled Roe v. Wade and Planned Parenthood v. Casey, and there are no longer any constitutional protections for women seeking abortions at any stage of pregnancy. The case overturned about 50 years of precedent that said women had a constitutional right to an abortion, which could be reasonably regulated, so long as the regulations did not pose an undue burden.

Today’s decision involved a Mississippi law that outlawed abortions after 15 weeks. Under Roe and other cases, that law would have been easily unconstitutional. Not anymore, with the new conservative majority on the Court.

I linked the opinions above, in case you want to read them. But let me warn you, there are 213 pages of opinions. Justice Alito wrote the majority decision that had 5 votes (Alito, Thomas, Gorsuch, Kavanaugh, and Barrett). Justice Thomas wrote a concurrence for himself. Justice Kavanaugh wrote a concurrence. Chief Justice Roberts concurred in the result and would have found the 15-week ban constitutional, but would not have overruled Roe. Justices Breyer, Sotomayor, and Kagan dissented.

Here’s a nice summary of the various opinions, if you’d rather just read that instead. (I still haven’t been able to get through the entire majority opinion because it sends my blood pressure sky high.)

While this result is not a surprise, since a draft of the opinion was leaked to the public in early May, it is still a huge deal. It’s hard to underestimate the consequences. For the first time ever, the US Supreme Court has rescinded an individual constitutional right. That alone sends shivers down my spine.

As news outlets have reported, at least 13 states have already passed so-called “trigger bans,” that would automatically outlaw abortion 30 days after the US Supreme Court reversed Roe. More states will follow now that Roe and Casey have been officially overruled.

As the dissent notes, the burden will fall hardest on women and families without the means to pay to travel to a state that allows abortions. 45% of pregnancies in America are unplanned. Low income women experience unplanned pregnancy at a rate 5 times higher than higher income women do.

There are any number of reasons women seek abortions. Contraception fails. Contraception isn’t universally available. Some pregnancies become medically difficult and endanger the health and/or life of the mother. Some are raped. Some are in an abusive relationship and don’t want to raise a child with their abuser. Some can’t financially support a child. And on and on.

Women in states where abortion is illegal will now have to endure the costs and risks of pregnancy and give birth against their wishes, unless they can come up with the money to travel to a state where abortion is legal. As a result of the decision, “from the very moment of fertilization, a woman has no rights to speak of. A state can force her to bring a pregnancy to term, even at the steepest personal and familial costs.”

As my colleague, Alysha, put it in an email to the firm, “people will die.” That isn’t hyperbole. As the dissent notes, women are 14 times more likely to die by carrying a pregnancy to term than from having an abortion. 14 times. That’s horrifying.

Plus, this will hit Black women especially hard. It’s generally accepted that Black women are already more than 3 times as likely as white women to die in pregnancy or postpartum. Outlawing abortion is not going to improve those numbers.

This is just the tip of the iceberg. While the majority goes to great pains to say that the reasoning of their opinion applies only to abortion and no other substantive rights that relied on the same legal analysis, it’s not a leap to see how those other rights are in danger. And Justice Thomas is coming hard for those rights, too: the right to contraception, the right to same-sex intimacy, and same-sex marriage, etc. Most of his concurrence was how all of those cases were wrongly decided, as well.

All of these rights arise out of the “liberty” clause in the Due Process clause (also called substantive due process), just as the right to abortion did. Those rights are protected, just as the right to abortion was, because everyone has a right “to the possession and control of his own person.” That is the very essence of liberty. However, none of those rights that are recognized by substantive due process are long-standing, just as the right to abortion was not, which is why the Court ultimately ruled there was no constitutional right to abortion. Under the majority’s logic, nothing the Court has done in the last 70 or 80 years in enlarging and protecting civil rights on the basis of “liberty” is safe. The right to interracial marriage is not longstanding. The right to contraception is not longstanding. The right to same-sex marriage is not longstanding. The US Supreme Court has opened Pandora’s box and no one knows who is safe and who isn’t.

Sigh. I didn’t mean for this post to be so long or so dramatic, but I got worked up and couldn’t help myself.

I think a few of us from Token Majority will be recording an episode of the podcast on this issue early next week. So stay tuned for that.


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