There are several things I want to say about the Supreme Court decision to overturn Roe v Wade in Dobbs vs Jackson, terminate the constitutional right to abortion access for American woman, and thus downgrade American women to second class citizens. So, I thought to write a running commentary concerning the decision. Given that I’m not a lawyer, this running commentary will be weak on legal principles (but so is Dobbs v Jackson) and most oriented toward political and social concerns.
1. Suppressing Women’s Rights was normal. The early part of Dobbs is mostly the “arbitrariness” of Roe in overturning abortion laws in the states.
At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third
of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly
restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State (10).
What was, and is, “normal” for Samuel Alito and the Court Majority was state government restrictions on the rights and citizenship of women and neither the full citizenship of American women or their rights to control their own bodies to the extent that men do. When Alito refers to “restrictive regime,” he means the restrictions on states legislating against women. Roe v Wade was consistent with the 19th Amendment, the Civil Rights Act of 1964, and other legislation that recognized women as equal beings and citizens and overturning abortion laws was part of the broad movement in American society to end the various kinds of legal “double standards” bearing down on women and black people. To the contrary, the current Court majority views the second class status of women as “normal” and treats Roe as a “restrictive regime” because it curtailed the efforts of state governments to restrict women.
2. Because Conservatives Exist, You Have No Rights. Alito then introduces what will emerge as the dumbest consideration in the whole 70 pages of the Court’s decision.
Casey threw out Roe’s trimester scheme and substituted a new rule of uncertain origin under which States were forbidden
to adopt any regulation that imposed an “undue burden” on a woman’s right to have an abortion.11 The decision provided no clear guidance about the difference between a “due” and an “undue” burden. But the three Justices who authored the controlling opinion “call[ed] the contending sides of a national controversy to end their national division” by treating the Court’s decision as the final settlement of the question of the constitutional right to abortion. As has become increasingly apparent in the intervening years, Casey did not achieve that goal. Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly. (12)
Translating, the argument being introduced is that Roe was wrong and women don’t “really” have rights as American citizens because those rights are opposed by the GOP, religious conservatives, and other patriarchy advocates. It’s similar to refusing to acknowledge the dictum that “all men are created equal” because of opposition from the loyalists of 1776. But the idea that right-wing opposition nullifies rights is one of the key tenets of conservative thinking. Cops wanted to stop and frisk black guys any time they felt like it. So Fourth Amendment protections against against “unreasonable searches and seizures” went out the window. Republican politicians wanted Republican votes to count more than Democratic votes, so the Supreme Court gutted and re-gutted the Voting Rights Act of 1965 and announced that Republican Party welfare was more important than Voting Rights. The malignant Constitutional thinking that characterizes the overturning of Roe has characterized conservative Supreme Court jurisprudence for years.