We begin today with Frederick Douglass and his October 22, 1883, speech before the Civil Rights Mass Meeting at Lincoln Hall in Washington, D.C., on the occasion of the United States Supreme Court’s 7-1 ruling that the Civil Rights Act of 1875 was unconstitutional.
We neither come to bury Caesar, nor to praise him. The Supreme Court is the autocratic point in our National Government. No monarch in Europe has a power more absolute over the laws, lives, and liberties of his people, than that Court has over our laws, lives, and liberties. Its Judges live, and ought to live, an eagle’s flight beyond the reach of fear or favor, praise or blame, profit or loss. No vulgar prejudice should touch the members of that Court, anywhere. Their decisions should come down to us like the calm, clear light of Infinite justice. We should be able to think of them and to speak of them with profoundest respect for their wisdom, and deepest reverence for their virtue; for what His Holiness, the Pope, is to the Roman Catholic church, the Supreme Court is to the American State. Its members are men, to be sure, and may not claim infallibility, like the Pope, but they are the Supreme power of the Nation, and their decisions are law.
What will be said here to-night, will be spoken, I trust, more in sorrow than in anger, more in a tone of regret than of bitterness. We cannot, however, overlook the fact that though not so intended, this decision has inflicted a heavy calamity upon seven millions of the people of this country, and left them naked and defenceless against the action of a malignant, vulgar, and pitiless prejudice. It presents the United States before the world as a Nation utterly destitute of power to protect the rights of its own citizens upon its own soil. It can claim service and allegiance, loyalty and life, of them, but it cannot protect them against the most palpable violation of the rights of human nature, rights to secure which, governments are established. It can tax their bread and tax their blood, but has no protecting power for their persons. Its National power extends only to the District of Columbia, and the Territories — where the people have no votes — and where the land has no people. All else is subject to the States. In the name of common sense, I ask, what right have we to call ourselves a Nation, in view of this decision, and this utter destitution of power?
(Remember that among the “many hats” that Douglass wore, he was a newspaperman as well as a diplomat.)
It was a different set of circumstances as the court’s ruling in the 1883 cases was grounded in an interpretation of the 14th amendment and involved a law passed by Congress. But the ruling did remove a right from peoples that had been previously established (at least theoretically).
Many of Douglass’ criticisms of the court are applicable to Friday’s decision in Dobbs v. Jackson Women’s Health Organization. Even the media (The New York Times and the Chicago Tribune) comes in for criticism from Douglass. The distinction between “civil equality” and “social equality” near the end of the speech still merits discussion, it seems to me.
Read the whole thing. We’ve been here before.
Heather Cox Richardson writes at her Letters from an American blog that the Dobbs decision marks the end of an era.
Today, thanks to three justices nominated by Trump, the Supreme Court stripped a constitutional right from the American people, a right we have enjoyed for almost 50 years, a right that is considered a fundamental human right in most liberal democracies, and a right they indicated they would protect because it was settled law. Today’s Dobbs v. Jackson Women’s Health Organization decision overturned the 1973 Roe v. Wade decision that recognized a woman’s right to terminate a pregnancy. For the first time in our history, rather than conveying rights, the court has explicitly taken a constitutional right away from the American people. [...]
The Dobbs decision marks the end of an era: the period in American history stretching from 1933 to 1981, the era in which the U.S. government worked to promote democracy. It tried to level the economic playing field between the rich and the poor by regulating business and working conditions. It provided a basic social safety net through programs like Social Security and Medicare and, later, through food and housing security programs. It promoted infrastructure like electricity and highways, and clean air and water, to try to maintain a basic standard of living for Americans. And it protected civil rights by using the Fourteenth Amendment, added to the U.S. Constitution in 1868, to stop states from denying their citizens the equal protection of the laws.
Now the Republicans are engaged in the process of dismantling that government. For forty years, the current Republican Party has worked to slash business regulations and the taxes that support social welfare programs, to privatize infrastructure projects, and to end the federal protection of civil rights by arguing for judicial “originalism” that claims to honor the original version of the Constitution rather than permitting the courts to protect rights through the Fourteenth Amendment.
Because Roe v. Wade and Casey v. Planned Parenthood involved “unenumerated rights” (as opposed to legislation passed by Congress), I’ll allow it.
Adam Serwer of The Atlantic says that if the concurrent opinion of Clarence Thomas is an indication, SCOTUS feels no obligation to restrain itself.
As the three Democratic-appointed justices note in their Dobbs dissent, more constitutional rights now are on the chopping block. “Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure,” the dissenters wrote. “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.” It seems to be the latter: In his concurrence, Justice Clarence Thomas writes that precedents establishing access to contraception, legalizing same-sex marriage, and striking down anti-sodomy laws should be “reconsidered.”
Setting aside the record of insincerity from Alito himself and the other conservative justices, the reason not to trust his disclaimer is that the Supreme Court has become an institution whose primary role is to force a right-wing vision of American society on the rest of the country. The conservative majority’s main vehicle for this imposition is a presentist historical analysis that takes whatever stances define right-wing cultural and political identity at a given moment and asserts them as essential aspects of American law since the Founding, and therefore obligatory. Conservatives have long attacked the left for supporting a “living constitutionalism,” which they say renders the law arbitrary and meaningless. But the current majority’s approach is itself a kind of undead constitutionalism—one in which the dictates of the Constitution retrospectively shift with whatever Fox News happens to be furious about. Legal outcomes preferred by today’s American right conveniently turn out to be what the Founding Fathers wanted all along.
The 6–3 majority has removed any appetite for caution or restraint, and the justices’ lifetime appointments mean they will never have to face an angry electorate that could deprive them of their power. It has also rendered their approach to the law lazy, clumsy, and malicious, and made the right-wing justices’ undead constitutionalism all the more apparent.
Robin Givhan of The Washington Post writes about on the different burdens that should be felt by opposing sides.
With its 6 to 3 decision in Dobbs v. Jackson Women’s Health Organization, the court declared that Americans no longer have a constitutional right to an abortion. It’s now up to each state to legislate the parameters of abortion access, thus making bodily autonomy synonymous with geography. In New York, you are your own woman; in Mississippi, you are not. For some people — those of limited means, those without the ability to travel, those who are simply overwhelmed by hurdles and fine print and religious dogma — an unwanted pregnancy will no longer be a private medical decision. It will become government-enforced, biological motherhood. A village can go to the ballot box and vote on whether a child is brought into this world, but the village does not have to raise that child.
The arrival of Friday morning’s decision in Dobbs was heralded by the sound of police sirens signaling that once again the nation’s capital was on high alert. The court was already surrounded by high black fencing and low metal bike racks ever since a draft of the opinion leaked last month. Neighboring streets have been blocked for weeks and the sidewalk shut down. But those on opposite sides of this argument have been yelling at each other for nearly 50 years, ever since Roe was decided in 1973. Those who tirelessly battled Roe have done so, they said, to save lives. And if that is more than rhetoric, it would seem that their fresh victory also comes with a tremendous responsibility. It yields a sobering duty that extends beyond making sure that a pregnancy goes to term and that the mother gets a few donations of diapers, a box of formula and the occasional “God bless you.”
The abortion rights advocates were now forced onto the offensive and outside the Supreme Court they were yelling that they wouldn’t back down and they wouldn’t go back to a time of illicit abortions. A parade of lawmakers who support abortion rights marched over from the Capitol. They could barely be heard over the celebrations and the protesting and Fergie, but they offered up a few platitudes and cathartic rallying cries, but there really wasn’t much else to say. “Women are going to control their bodies no matter how they try to stop us,” Rep. Maxine Waters (D- Calif.) said. “The hell with the Supreme Court. We will defy them.”
Margaret Carlson writes for Washington Monthly on the frightening new normal thanks to SCOTUS.
The Dobbs opinion marks the first time a constitutional right affirmed by a prior court was taken back by a succeeding court. Justice Clarence Thomas set off more alarms when he opened the door to review other cases based on due process and rights not enumerated in the Constitution. Watch out: What happens in the bedroom may not stay in the bedroom. And race to the altar—among other rights Thomas questioned was the right to marry whom you wish.
Dobbs was dramatic enough without Thomas promising more. It makes you wonder if late Justice Antonin Scalia was joking or worried that his progeny might escape the lab when he answered a question about the difference between him and Thomas, the two jurists most likely to look to the 18th century to decide what was constitutional in the 21st. Scalia answered, “I am an originalist. I am a textualist. I am not a nut.”[...}
While you say a prayer for the children born of forced motherhood, there was a decision the day before that poses a real and present danger to the living. With the horror of Uvalde still raw and mass shootings barely making the news unless the death toll reaches double digits, the Court decided 6–3, with Thomas writing for the majority, that a 100-year-old law in New York, and similar ones in six other states, was unconstitutional because it required the owner to show cause to be permitted to openly carry in Times Square, in traffic on the FDR, and at Yankee Stadium, where if we can’t beat you on the mound, we’ll shoot you in the stands. Ordinary life instantly became more dangerous in a country with 5 percent of the world’s population but nearly half of the world’s privately owned firearms. It follows that America holds the record for the most shootings and gun-related deaths among industrialized countries.
Stephen Collinson of CNN writes that while liberal organizing to achieve national abortion rights once again may take decades, conservatives will not stop organizing.
The prospects of an immediate political riposte are also unlikely, given the Democrats’ current political woes. If the outpouring of liberal emotion is to coalesce into a counter-movement to restore abortion rights, it will require the same level of multi-decade dedication shown by conservatives. It will call for a network of political groups all pushing in the same direction and for national politicians with the talent to turn out voters on the issue using their time in office to build a competing legal and political structure effective at pressing change. And it will have to begin as a rearguard action after a stunning defeat as multiple conservative states pass or implement flash laws to outlaw abortion for millions of women.
Abortion is a deeply personal issue for many Americans that involves choices about when life begins and an individual’s rights to make a decision about their own body. It becomes a sensitive and divisive political issue when it comes to the questions of whether and how government can dictate these moral and legal questions and what the Constitution permits.
So just as liberals may now be newly fired up, the anti-abortion movement will not rest. Some activists are already striving to elect a Republican-led Congress and president who would outlaw abortion not just in conservative states but also in the blue ones that immediately vowed Friday to protect a woman’s right to choose. And while Biden can carp about Republican extremists and liberals complain about Republican presidents failing to win the popular vote, the conservative movement looks just as likely to mobilize to use the US political system to preserve its win as Democrats are to try to overturn it.
Collinson is right.
Eric Boodman, Tara Bannow, Bob Herman, and Casey Ross of STATnews note that HIPAA laws will probably not protect medical information related to abortions.
“People think HIPAA protects a lot more health information than it actually does,” said Kayte Spector-Bagdady, a professor of bioethics and law at the University of Michigan.
It all comes down to state law. She said the federal privacy rule contains exceptions that could allow prosecutors to compel businesses to relinquish information relevant to a criminal investigation — and the same is true for other kinds of legal action, too.
“All that [a] provider could use to push back is to say, ‘I want to see a warrant,’ or ‘I want to see a subpoena,” said Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.
While many laws limiting abortion have focused on providers, legal experts say some patients could end up being vulnerable, too.
In states that ban abortion, simply the suspicion that a patient had an abortion would be enough to allow law enforcement to poke around in their medical records under the guise of identifying or locating a suspect, said Isabelle Bibet-Kalinyak, a member of Brach Eichler’s health care law practice. “They would still need to have probable cause,” she said.
Georgetown University law professor Meryl J. Chertoff writes for The Hill that there is a paucity of case law and precedent as it relates to traveling out of state, generally.
The right to travel has not been adumbrated extensively in case law. With respect to international travel, it received a bump of attention during COVID-19, when some Americans were forced to quarantine out of the country until they could produce negative COVID tests; and also when, at the beginning of the pandemic, some governors sought to ban interstate travel from states deemed to be “COVID hotspots” — a futile exercise that was soon abandoned. Almost no case law emerged. [...]
In Missouri, a bill introduced in December, and modeled on S.B. 8, the Texas “bounty” law, would allow prosecution not only for a person who aids another to obtain an abortion in Missouri, but also who aids another to travel to a state in which abortion is legal. The proposed law has dubious criminal law underpinning — it posits that a criminal conspiracy can be based on behavior that is legal in the state where it occurs, and not in the state where the traveler resides, stretching the idea of long-arm jurisdiction.
At the other end of the spectrum, citing the Massachusetts Constitution’s protection of reproductive rights, Gov. Charlie Baker on signed an executive order designed to shield Massachusetts-based health care providers from liability for providing services to abortion-seekers from out of state, prohibiting extradictions, and protecting records from disclosure to states with criminal penalties against abortion seekers, allies and service providers.
Renée Graham of The Boston Globe is okay with the Jan. 6 hearings not swaying Republicans.
Even before his malicious indifference to the pandemic’s toll became tantamount to a deadly variant, Trump was arguably the worst president in American history. Praising his cruel White House tenure as “great” is troubling enough. But Bowers experienced how Trump abused the power of his office and brought hell into the lives of those who defied his illicit ambitions. He witnessed firsthand why Trump is unfit to hold public office ever again.
That Bowers still supports Trump should make plain that the Jan. 6 hearings are unlikely to sway Republicans who remain devoted to the man who incited a violent coup against his own government. And, frankly, that’s fine.
To some extent, we were primed for Republicans to shrug off these hearings in 2016 after a leaked audio from a 2005 “Access Hollywood” tape featured Trump boasting about sexually assaulting women. Since he was already facing multiple and credible accusations of sexual misconduct, it should have been a death knell for Trump’s presidential ambitions. But the needle barely moved against him. A month later, Trump was elected as this nation’s 45th president.
Here was clear evidence that no matter how outrageous, sexist, racist, or even potentially criminal his behavior, Trump would probably always have a significant base mainlining his lies and standing by him.
Lois Beckett and Abené Clayton of the Guardian note the alarming trend of an increase in the homicide rate against Black women.
As homicides increased nearly 30% nationwide that year, the rate for Black women and girls rose 33%, a sharper increase than for every demographic except Black men, and more than double that of white women, according to a Guardian analysis of homicide data from the Centers for Disease Control and Prevention.
Killings of Black women and girls increased across age groups, from school-age children to senior citizens. Gun violence drove the increase, with three-quarters of homicide victims who were Black women and girls dying from gunshot wounds.
The increase only worsened an “unspoken epidemic” that has been unfolding over years, advocates say. From the mainstream feminist movement to the news media to law enforcement to community violence prevention organizations, many institutions have stayed silent about the crisis of violence against Black women, who are expected to care for others, but often do not receive the same level of care, they said.
Nira Milanich and Nayla Vacarezza of Foreign Affairs write that while the United States is regressing on abortion rights, Latin America and the Caribbean is progressing.
Just five years ago, 97 percent of women in Latin America and the Caribbean lived in countries where abortion was illegal or severely restricted (the only exceptions were Cuba, Guyana, Uruguay, and the federal district of Mexico City). The region was home to some of the most draconian abortion bans in the world—policies that endure in the Dominican Republic, El Salvador, Haiti, Honduras, Nicaragua, and Suriname.
But over the past two years, the three most populous Spanish-speaking countries in Latin America decriminalized abortion in rapid succession—first Argentina, then Mexico, and most recently Colombia. Other countries are on the brink of dramatic change, as well. Until recently, abortion in Chile was prohibited in all circumstances, owing to a law instituted in 1989 by the dictator General Augusto Pinochet as he left office. In 2017, a reform introduced certain narrow exceptions. Now Chile may make global history. A draft of the country’s new constitution includes an article enshrining abortion rights—apparently the most explicit such protection of any constitution in the world.
These remarkable strides reflect decades of struggle. The hostile political environments and dire state of reproductive rights in the region required Latin American activists to organize across borders, form strategic alliances within their own countries, and explore ways to expand safe abortion access at the margins of the law. Against seemingly long odds, their efforts ultimately led to decriminalization. As the United States confronts a reversal of rights once considered untouchable, it is worth considering the lessons that Latin American feminists’ experiences may hold. Even faced with hostile politics, a movement that brings together a diverse array of social groups with a stake in abortion rights can, in the end, achieve change.
Finally today, Richard Wike, Janell Fetterolf, Mora Fagan, and Sneha Gubbala of Pew Research Center report on an exhaustive survey that shows that while international attitudes about the United States have greatly improved over the previous administration, President Biden positive ratings, while still good, have slipped.
Ratings for U.S. President Joe Biden have slipped since 2021, with confidence in the American leader dropping significantly in 13 countries, including declines of 20 percentage points or more in Italy, Greece, Spain, Singapore and France. Despite these shifts, attitudes toward Biden remain mostly positive, with a median of 60% across the nations polled expressing confidence in him to do the right thing in world affairs. Biden gets his highest marks in Poland (82% confidence) and his lowest in Greece (41%).
Data from four nations that we have surveyed consistently over the past two decades – France, Germany, Spain and the United Kingdom – illustrates the long-term pattern on views of recent American presidents in Western Europe. George W. Bush received low and declining ratings during his time in office, while Barack Obama got mostly high marks. Attitudes toward Donald Trump were overwhelmingly negative. Biden receives much more positive reviews than his predecessor, although his ratings have fallen in all four countries in year two of his presidency.
The one country in the study where Biden receives lower ratings than Trump is Israel. Six-in-ten Israelis see Biden positively, but 71% felt this way about Trump when we last surveyed there in 2019 (in 2017 56% of Israelis rated Trump positively, and in 2018 it was 69%). Israeli views toward American presidents have fluctuated considerably over the past two decades, although overall attitudes toward the U.S. have remained consistently favorable.
Peace.
