Reviews | The Supreme Court Just Said Half of America Is Less Equal

The presence of these people on the ground is the culmination of a decades-long effort by anti-abortion forces and other right-wing forces to turn the court into a regressive bulwark. It was never a secret; and with the help of the Senate led by Mitch McConnell, former President Donald Trump and allies of the conservative legal movement, they succeeded.

The central logic of the Dobbs decision is superficially simple, and the opinion is much the same as Justice Alito’s draft circulated to other justices in February, which was leaked to the press last month. Roe and Casey should be struck down, according to the ruling, because “the Constitution makes no reference to abortion, and no such right is impliedly protected by any constitutional provision,” including the due process guarantee. of the 14th Amendment. Although this provision has been seen as guaranteeing certain rights which are not explicitly mentioned in the Constitution, any such right must be “deeply rooted in the history and tradition of this nation”.

According to the majority’s reasoning, the right to terminate a pregnancy is not “deeply rooted” in the history and tradition of the United States – a country whose Constitution was drafted by a small group of white men wealthy, many of whom owned slaves and most, if not all, who viewed women as second-class citizens with no say in politics.

The three dissenters in the Dobbs case – Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan – denounced the majority’s dishonesty, noting that its extremely narrow definition of “deep-rooted” rights threatens much more than reproductive freedom. The denial of the majority is impossible to believe, write the dissidents: “Either the majority does not really believe in its own reasoning. Or if so, all rights that don’t have a history dating back to the mid-19th century are precarious.

In other words, the court will not stop at abortion. If you think that’s hyperbole, consider Judge Clarence Thomas’ concurring opinion in Dobbs, in which he asked the court to reconsider other constitutional rights that Americans have enjoyed, in some cases, for decades – including including the right to use birth control, the right to marry whomever they choose, and the right of consenting adults to do whatever they want in the privacy of their bedrooms without being arrested and charged with crimes. These rights share a constitutional basis similar to the ancient right to abortion, and Justice Thomas rejects that basis, calling on the court to “remove it…at the earliest opportunity.”

This position may not command the majority of justices today, but six years ago few thought Roe v. Wade would be canceled. Brett Kavanaugh, at his confirmation hearing in 2018, said Roe v. Wadeis an important Supreme Court precedent that has been repeatedly reaffirmed. He added: “Casey specifically reconsidered it, applied the stare decisis factors and decided to reaffirm it. This makes Casey precedent upon precedent.


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