For half a century, the radical right has fought to reclaim state control over the the uterus of every person in this country capable of getting pregnant. They succeeded Friday in a 6-3 decision in Dobbs v. Jackson Women’s Health Organization that ends federal protections of abortion rights. With the decision, 13 states—Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Tennessee, Utah, Texas, Oklahoma, and Wyoming—automatically banned abortion with trigger laws their extremist governors and legislatures put in place waiting for this decision.
"The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives,” the Court’s extremist majority ruled. Whereas the right for citizens to carry weapons of war around in public, posing a very real threat to actual living human beings outside the womb cannot be decided by the states, according to these same radicals in their gun decision Thursday.
In anticipation of that, providers in some state have already halted abortion care. Blue states are scrambling to provide systems of care across state borders. So some states do indeed get to decide and continue to protect reproductive rights.
The decision, authored by Justice Samuel Alito, largely tracks with the draft majority opinion leaked in May. In it, Alito completely repudiates the 1973 Roe v. Wade decision and the subsequent decision in Planned Parenthood v. Casey, the 1992 ruling that upheld the right to an abortion but changed the standard for litigating restrictions on the right, establishing the standard of undue burden in deciding what restrictions would be allowed. From that moment on, it’s been Republican state after Republican state chipping away at abortion by ever more creatively stretching the boundaries of “under burden.” Waiting periods, mandatory vaginal ultrasounds, counseling, medical facility requirements, parental consent—the patriarchal states went crazy trying to figure out how creatively they could punish pregnant people.
In a solo concurring opinion, Justice Clarence Thomas goes after contraception and LGTBQ rights: “[I]n 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,’ [...] we have a duty to ‘correct the error’ established in those precedents,” he writes.
In dissent, Breyer, Sotomayor, and Kagan respond: “Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.”
Alito obnoxiously pretends Thomas didn't write what Thomas wrote: "Finally, the dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell. [...] But we have stated unequivocally that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
That this is not at all about sanctity of life, has never been about the sanctity of life, is right there in black and white in Alito’s decision. In his draft opinion, he included a side trip into the distant past, praising 17th century English jurist Matthew Hale, who had at least two women executed for witchcraft and who created the premise that husbands cannot be prosecuted for raping their wives. Alito approvingly quoted Hale in the draft, writing: “Two treatises by Sir Matthew Hale likewise described abortion of a quick child who died in the womb as a ‘great crime’ and a ‘great misprision.’”
The “quickening” is defined by Alito in his draft as “the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy,” but Hale argued that even before that movement, abortion was homicide. “Hale wrote that if a physician gave a woman ‘with child’ a ‘potion’ to cause an abortion, and the woman died, it was ‘murder’ because the potion was given ‘unlawfully to destroy her child within her.’”
While that particularly reference, soundly pilloried by legal experts and every well-grounded 21st century thinking person was left out of the final decision by Alito, that was the mindset with which Alito and the extremist majority approached the question: the mindset of a 17th century jurist who was pretty far out even for his own day, writing a century before the American Revolution and the drafting of the U.S. Constitution, upon which the Supreme Court has been happily spitting during this session.
This ruling, as Kerry Eleveld wrote when the draft was leaked in May, “opens the floodgates” from “contraception to LGBTQ rights.” That’s because it “intrinsically calls into question other unenumerated rights the Supreme Court has conferred on Americans, such as the right to privacy, raise children, use contraception, or marry the person of their choosing regardless of the color of their skin or their gender.” That is the path this illegitimate, extremist Supreme Court has put the nation on, one that would roll back at least a century’s worth of progress in American life.
Don’t expect the newly unleashed rabid right to stop at banning abortion, either. They’re already planning what comes next, the punishment for people having abortions: “mandatory psychiatric custody.”
That’s coming not from the fringes of the Republican establishment, because you can’t define a “fringe” anymore—they’re all in it. It’s coming from a senior research fellow and director of the DeVos Center at the Heritage Foundation, one of the leading (if such a thing exists) think tanks of the right.
It’s clear that this Supreme Court, even with Judge Ketanji Brown Jackson added next term, is not going to protect this fundamental right. It’s also clear from the Jackson hearings and from red state actions that they’re not going to stop at abortion. They’re aiming for marriage equality, for contraception—hell, they’ve even started talking about the states banning interracial marriage.
There’s just one solution: Expand the court so that the Trump-packed three, plus insurrectionist Thomas and extreme ideologue Alito, can’t rocket us back to a pre-civil rights America.