“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. —That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” —Declaration of Independence (1776)
In Dobbs v Jackson Women’s Health Organization, the US Supreme Court held that abortion is not a protected right under the Constitution of the United States, thus overruling Roe v Wade (1973) and Planned Parenthood v Casey (1992) and returned the matter to the states.
Five states—Alabama, Arizona, Michigan, West Virginia and Wisconsin—have state bans on abortions already in place, which could soon and are likely in some cases to, be enforced. There are thirteen states—Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming—that have “trigger bans” that will outlaw abortions within a month. Georgia, Iowa, and South Carolina have passed bans or severe restrictions that are likely to go into effect. Florida’s recently passed ban on abortions after fifteen weeks takes effect in July. And Ohio just criminalized all abortions after a fetal heartbeat is detected. On the horizon, Indiana, Montana and Nebraska are likely to restrict abortion.
Associate Justice Samuel Alito authored the majority opinion : “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’ It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas, joined Alito in the majority. Chief Justice Johns Roberts pitched in, upholding Mississippi’s fifteen week ban, which was the case at hand. Alito, Barrett, Kavanaugh, Roberts, and Thomas are all Catholics (see Judging the Religious; Religious Liberty, Relative Theocratic Threat, and Keeping the Supreme Court Divided; Secularism, Nationalism, and Nativism).
I will address the matters of abortion as a right “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” later. (I have addressed these matters in a number of past blogs. See The End of Roe and Beginning Again; The Fetus is a Person. Now What?; Abortion is Really About Freedom; Liberty is America’s raison d’être. Preserving Reproductive Freedom for the Sake of the Republic.) As the reader will learn, Alito is wrong on both counts. I want to pursue at the outset an argument—and observation really—that the understanding of the purpose of republican government represented by the Court’s majority and its grasp of the nature of rights in a liberal society, which America was founded as, is profoundly misguided and, frankly, unAmerican.
To wit: rights are not given by men. As Thomas Jefferson makes clear in the Declaration of Independence, rights are a priori, inhering in human nature and universal principle—from the “Laws of Nature and Nature’s God,” to use Jefferson’s majestic (and deistic) phrase. People, as Jefferson contends, are “entitled” to these by virtue of an authority beyond men. Moreover, governments recognize and defend these rights by identifying and removing obstacles to liberty and happiness (intelligent and fair-minded people accomplish this). Indeed, governments are stood up to secure these rights—in free societies, at least. Those who argue that men grant rights deservedly sport a bad label: statist. Conservatives will ape Jeffersonian language now and again, but in truth, they are too illiberal to be of his ilk. The spirit in back their judicial philosophy, such that we can dignify their ideology using such terms, is authoritarian.
The pressing issue here is the conservative assault on substantive due process, with Justice Thomas already asking the court to reconsider a list of rulings that rest upon that principle. Substantive due process is a constitutional law principle that empowers courts to protect from government interference fundamental rights even if those rights are unenumerated in the US Constitution (which includes the Bill of Rights) and state constitutions. The rejection of substantive due process for conservatives on the Court has at its core the fallacy of “states’ rights.” States rights was used, it will easily be recalled, to deny blacks equality with whites. Opposition to marriage equality was justified on the basis of this fallacy. Let the states decide whether to grant same-sex marriage, we were told—you know, like the question of interracial marriage. Thomas has in mind Griswold v Connecticut, Lawrence v Texas and Obergefell v Hodges. We know because he said so. He didn’t saying Loving v Virginia. But why not?
You will have noticed that conservatives like to reference the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This is “states’ rights.” But note that the amendment is about powers. A power finds its authority in common law, constitutional law, or statute. In a free society, power is in principle delegated to institutions by the citizenry to manage their affairs—to keep them safe and make them happy. Before the Tenth Amendment there is a Ninth: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Ninth is the relevant amendment in the debate over the Dobbs decision because it concerns rights, which are fundamentally different from powers. And not certain rights, but those that flow generally from the foundational ones identified in the Declaration: “life, liberty, and the pursuit of happiness.” The Ninth Amendment is the key to the whole shebang.
Ted Cruz, whom conservatives fancy on the Supreme Court one day, is of the opinion that Roe is among the worst of the Supreme Court’s decisions. (It’s a bad decision, for sure.) He then says “Abortion is not in the Constitution.” He is correct. However, there are a lot of things that are not in the Constitution. This is why the Ninth Amendment exists. The Bill of Rights could not possibility identify all the rights, not only those known to the Founders, but those smart and just men would discover in the future. The Ninth Amendment explicitly states this understanding. This is why conservatives skip over it and head straight for the Tenth.
At the Constitutional Convention, James Madison, the principle author of both the Constitution and the Bill of Rights, advocated for provisions that protected individual liberties and limited the power of government. Crucially, Madison sought the establishment of a national veto over state laws, and he did so explicitly to prevent the tyranny of the majority in the states. The tyranny of the majority (or tyranny of the masses) occurs in democracies where judicial protections for minorities and individuals are weak or lacking. For example, if a majority in a state can through law compel a woman to carry a pregnancy to term, that is, force the woman to serve as an incubator for the interests of the majority, then a tyranny has been obtained. If abortion is a right, on the other hand, then the primary role of government is to defend that right. If state government won’t do it, then the federal government must. This is the principle of substantive due process, and it is an essential feature of the foundation of the American Republic.
During the Constitution’s ratification, in order to secure the support of Anti-federalists (those who opposed the formation of a national government in favor of a loose network of local governments), the Federalists promised a bill of rights. Having lost his bid to limit the power of the states via the mechanism of a federal veto, Madison was skeptical of what a bill of rights could accomplish. Moreover, several states already had bills of rights. Still, the Federalists sought a list of rights to limit government power. The inherent problem of such a list, of course, is that it may be understood to be exhaustive. Madison understood that no such list could be.
After consulting with Thomas Jefferson, who very much wanted the people to have such a bill, Madison reconsidered the matter. In short order, he became a zealot for the cause. The Ninth Amendment was no afterthought, you see. In the original draft of the bill, Madison writes, “The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”
Madison’s understanding that rights exist a priori and cannot be completely enumerated is foundational to Enlightenment thinking. This understanding is inseparable from the spirit that produced the Declaration of Independence. As historian Robert McDonald records, Jefferson himself claimed there were no new ideas in the Declaration of Independence, citing, among other sources, the English struggle for civil liberties, the Scottish Enlightenment, and the great philosophers of freedom, such as John Locke and Montesquieu. In other words, it is a profound expression of humanist, liberal, and secular values.
To be sure, courts may invent rights. But courts also affirm them. The right to control one’s own body is not an invented right, but among the most fundamental of rights. When the United States was founded, most states operated under the English common law right to abortion, which permitted the termination of a pregnancy before quickening (fetal movement). Laws criminalizing abortion did not appear until the late 1800s. In fact, abortion is a fundamental right stretching back millennia. So Alito’s suggestion that abortion is not “deeply rooted in this Nation’s history and tradition” is an ignorant one.
As for whether abortion is “implicit in the concept of ordered liberty,” the matter is straight forward. Either you believe the state can commandeer a woman’s body and use its organs and processes for its own interests and purposes or for the interests and purposes of others or you believe that personal sovereignty and bodily autonomy demand the right to determine what one’s body is used for and who uses it where and when and for how long. The paradigm of individual liberty and self-ownership is found in reproductive freedom. Moreover, because of sex differences, girls and women bear a special burden in this domain. To demand woman serve as incubators not only violates their liberty, but it discriminates against them.
The matter can be put like this: Imagine the state commandeering your body to sustain the life of a person you had sex with. That you chose to have sex with this person does not obligate you to sustain his life. Sex and pregnancy are not intrinsically linked in purpose. If this were true, sex would only occur for procreative purposes, and that notion is an entirely religious perversion.
Rights are not matters for the majority to decide. Rights are inherent and discovered. Rights exist in the face of majority opinion and sentiment. It is the role of government to protect these rights from the majority, not subject them to the whims of the masses or powerful and well-organized elites. By leaving the determination of rights to state governments, conservative judges on the high court are advocating for the tyranny of the majority. They are proponents of majoritarianism, a standpoint antithetical to the Constitution and the liberal traditions upon which it rests.
I cannot leave this blog entry without saying something about the Democrats. Imagine Associate Justice Ruth Bader Ginsberg had retired when she received her pancreatic cancer diagnosis in 2009 (when she was in her late seventies) and Obama had not lost Congress in his first term. I don’t say this to merely engage in counterfactual revisionist snark. There are lessons to be learned.
Another lesson to be learned learned is the point the woman makes in the video I shared above. It looks like green screen. But I checked and this is an MSNBC reporter and there are other videos from this segment. I’m surprised this interview was aired (perhaps why it looks like green screen to me). I’m more surprised the question was asked by an MSDNC reporter. The reporter seems to go out of her way to record the response, knowing what the woman wanted to say—which was very well said! Bravo to the woman calling out Democratic Party manipulations.
Everybody is beating up on Ginsburg, so I will leave her be. With respect to Obama, the nation had a president who enjoyed Democratic control over both houses of Congress and immense popularity. Had his party pursued a national economic strategy involving a massive jobs program and saving the homes of American families across the country, instead of pushing a derivative of Romneycare through Congress, exhausting his political capital while alienating millions of Americans, we’d likely have a court more sympathetic to Roe. Folks say that elections have consequences. But let’s be sure to remember that political policy choices have consequences, as well. Obama was elected. Twice. What does the country have to show for his eight years beyond drone strikes and resurgent conservatism?
But the biggest lesson comes from realizing that the Democratic Party didn’t care about this issue in the way many progressives think they did. Fifty years of progress has been erased, progressives tell us. However, fifty years of progress might have looked more like a body of federal law protecting reproductive freedom rather than a problematic precedent. Instead, Democrats were more interested in leveraging a flawed judicial opinion as campaign strategy rather than fighting like hell to secure a federal guarantee for abortion (and this criticism applies to several states, as well).
Now that the strategy has failed, Democrats are pinning Clinton’s crushing 2016 defeat on those who refused to vote for the neoliberal and neoconservative candidate. Bill Maher used a recent monologue to chastise those of us who on principle do not vote for what Maher regards as a lesser evil. The woman’s answer to the MSNBC reporter’s question negates Maher’s attempt at shaming. The Democratic Party that has failed women. But I hasten to write that conservatives have failed America. Erasing substantive due process from constitutional law is a very grave development for the future of the American Republic.
Roe was a poor decision, but the goal of protecting this most fundamental right of women—the right to bodily autonomy—is the correct one. The struggle begins anew and we must use this struggle to not only secure the right of reproductive freedom for all women, but to reassert the American legal tradition of substantive due process and prevent the rollback of other hard-won victories in the long struggle for greater justice for our people. The movement to re-secure this right and shore up many others must proceed with new energy and determined purpose—and the best arguments. Those arguments are found in the moral logic that founded the United States of America.
Note: I revised the blog from this morning to add the tweet with the MSNBC video clip and weave it into the commentary. The video so nicely punctuated the point I made—indeed, making the point better than I did!—that I had to revisit the essay.