Today Is For Sadness & Anger

Tomorrow, we get back in the fight

Hi Friends.

I know you all know. Roe v. Wade reversed, the fate of abortion rights and the lives of pregnant people left up to state legislatures, many of whom don’t care.

The first time I read Margaret Atwood’s novel Handmaid’s Tale, it was 1987 or 1988. I remember, because I was a young lawyer in Washington, DC. I felt invulnerable. I liked the book, in part, because it confirmed my social capital—I would never be a second class citizen like the women in Atwood’s Gilead. Or so I thought.

Then the start of the Trump administration coincided with the serialization of Handmaid’s Tale for television and the book became shorthand for the bad future we had never seriously contemplated, but which seemed to be at the early stages of materializing if left unchecked. There were a lot of people who thought the comparison was overblown, which thankfully, it was in some ways. I got regular emails from strangers who told me I was overreacting (and a lot worse). Three new Supreme Court Justices later, here we are.

I promised you some hot takes here at Civil Discourse, and today is a day to deliver on that. Rather than trying to parse the opinion, which is happening round the clock on cable tv right now (and you can see me there tonight on the Reidout and 11th Hour, and also through the weekend), I wanted to share a few points with you.

• Here’s the basic holding

• The last line of the dissent. The justices typically dissent “with respect.” Today, the three justices who spoke with one unified voice in dissent (unusual in and of itself), signed off in sorrow.

• The dissent went to the core issue for me. Dobbs is about abortion, but it’s really about whether women are full and equal participants in this society. Are we now second class citizens? The Supreme Court says that women can’t be trusted with making decisions about their own bodies.

Abortion is a difficult issue, I don’t know anyone who pretends it isn’t. But Roe and Dobbs are really about who gets to decide if a woman can get an abortion. The same court that won’t force people to wear masks during a pandemic had no trouble telling women they had to carry fetuses to term. Even in cases of rape and incest. In some cases, even when carrying to term could kill the mother.

• The majority says this is just about abortion, that no other rights are at risk. But Justice Thomas, who writes separately to concur, explicitly invites additional challenges. Thomas agrees that the Court’s ruling today does not disturb any of the rights that are guaranteed under the umbrella of substantive due process along with abortion, because the majority opinion explicitly says so. He concludes, “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.”

Substantive due process is a legal doctrine that says the Constitution protects certain fundamental rights from government intrusion. It has been used to protect abortion along with access to birth control, the right to engage in same-sex sex, and same-sex marriage. Thomas rejects substantive due process outright, writing in Dobbs, “substantive due process” is an oxymoron that “lack[s] any basis in the Constitution.” Currently, that’s a fringe view. No other justice joined Thomas’ concurrence. But if Dobbs teaches us anything, it’s that we should not be complacent, secure in the belief that we cannot lose existing rights. Going forward, more vigilance will be required. Some states will probably pass laws interfering with same-sex marriage, even knowing that the courts will prevent them from going into effect, so they can bring challenges in the courts. That’s the same strategy conservatives used for 50 years with abortion until they succeeded.

• This new, ultra-conservative Supreme Court has a “special jurisprudence” that it uses for abortion. It’s a results-oriented way of contorting the law into whatever shape necessary to outlaw abortion. My federal courts professor, Bill Eskridge, confirms this, noting that the court has never before had a case where it overruled a constitutional precedent and took away a right. He also makes the equally interesting points that the court didn’t split strictly down party lines in any of the cases where it did overrule constitutional precedent. Dobbs was a case with only Republicans in the majority, five of them. Three appointed by Trump. So much for history and precedent.

Today was a tough day. There’s no way to soft peddle it. I hope you had a chance to talk with people you love and indulge in some anger and sadness.

But that’s all you get. One day. Republicans fought the battle to reverse Roe for 50 years. Now it’s up to us. There’s plenty of blame to go around for how we let women’s right slip away. It’s far more productive to look forward than it is to look back. Tomorrow, join a pro-choice rally. Plan activism with friends.

Ultimately, it’s about exercising our right to vote. Isn’t it always? There’s a dark irony in the fact that the Supreme Court kicked responsibility for deciding the future of abortion back to state legislatures, many of which are extremely conservative due more to gerrymandering than anything else. 61% of Americans think abortion should be legal in all or most cases. You wouldn’t know that by looking at extreme measures, like the 2019 law that went into effect in Alabama today, after the Attorney General raced to a federal courthouse to have a stay on it lifted. Abortion is now a felony crime in Alabama. There aren’t exceptions for rape, incest, or trafficking victims.

Those sort of provisions may appeal to politicians who want to get reelected in districts that are gerrymandered towards extremes. But it’s time for those of us who value women and their rights to focus on state elections, starting with the ones in November. To state the obvious, abortion is on the ballot. And it will be for a long time. We’ll need state legislatures that will restore and protect rights, a Congress to enact new laws, and a Senate that can confirm Supreme Court justices. We can’t have any more seats held open in the final year of a presidency only to have a confirmation rushed through after voting has already started in the next election. Democrats and others who support women need to play electoral politics for keeps. We’ve got work to do.

We’re in this together,

Joyce