At the request of a reader who wishes to remain anonymous, we post their response to our post approving of the legal reasoning in Dobbs. Note that we have not expressed approval of the social impact of the opinion.
Response to Rumpole.
Thanks for the opportunity Rumpole. Start with the fact that you make no reference to the impact on stare decisis and the respect for precedent. And yes, I know your three word response will be "Plessy v. Ferguson." But isn't there a way to disapprove of the reasoning in Griswold and Roe without reversing rights that those opinions codified and have become integral to life in this Country? Let's pretend that the reasoning in Brown was similarly suspect. Would we allow states to start separating school children by race? Your criticism of Wickard, which was an Interstate Commerce Clause case, and set the stage for courts to strike down racist laws and drag the country into integration. Would you now support laws allowing businesses to segregate dinning rooms? Are you ready for the old days 1900-1960's of Miami Beach and the signs "No Coloreds and Jews"? Can you not criticize the court for striking down rights that may have been in artfully found, but exist nonetheless and have taken root in society? The Court could have profoundly rebuked the reasoning in Roe and Griswold without changing the fabric of society. By doing so the Court's six justices- who give lip service to not legislating- have done thus that. What they have done legislates more than Roe and Griswold X1000.
Under Thomas's reasoning, with new challenges the Court not just cannot- but following Dobbs MUST strike down laws allowing mixed race marriages, same sex marriages, and reinstate the Connecticut law banning the sale of contraception to even married people. At what point does the tyranny of the minority of state legislatures (albeit with majorities in those states) affect the rights of Americans? When two women or two men or a mixed-race couple rent a hotel room as a married couple in Kansas, South Dakota, or Texas, they will likely be subject to arrest and prosecution. Or is the court going to find in the commerce clause rights that it cannot find in the 14th amendment?
As the Dobbs dissent says:
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 mid19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.
Can it be that we live in a country that can advance technologically to land a man on the moon but jurisprudentially is stuck with allowing its citizens only those rights recognized in the 19th century? You can use a cell phone and access the internet but have no right to contraception. Child labor laws, not to mention many civil rights laws are all now in jeopardy. Should Texas repeal a woman's right to vote, so be it. Can we live in a UNITED States that is so disunited State by State?
Now I turn to abortion. Your philosophical hero, Ayn Rand supported an abortion because she did not or could not find a potential right (of life of the unborn child) to conflict with an actual right of a woman to make a medical choice to her own body. If life does not begin at conception, then wasn't Roe on the right track, allowing abortions when the fetus wasn't a viable life? If a person's right to make medical decisions about their own body was not endemic to the founders, then what about all those words regarding the right to Life and Liberty in the Declaration of Independence? Did they only apply to white men?
If the Bill Of Rights was sufficient, we would have not needed the fourteenth amendment, but we did. How does the right of a man to get a vasectomy square under the equal protection guarantee with the now non-right of a woman to get a certain medical procedure.
The dissent in Dobbs says: Today, the Court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of.
How do you respond that under the 14th amendment as of today a State can now FORCE a woman to give birth from the moment of conception, an idea more at home in China or North Korea than New Hampshire (Live Free or Die?).
Tossing aside the precedent of Roe and Griswold is infinitely more complex and destructive than the reversal of Plessy. At some point we do require Judges to say "Yes- we as a country have these ideals and they cannot be abrogated by a state legislature. We have the ideal and right to equal treatment despite race, sex, religion or sexual preference. Therefore Judges can express and uphold these rights, not specifically stated in the Constitution, but fully accepted by a society. To live in America means to live in a country where a person can marry whomever they choose; where a person can pray or not pray; where a person has the full right to exercise their medical decisions over their body, including the right to transition to another sex, the right to get plastic surgery, the right to have a vasectomy or abortion, the right to enhance or reduce their breasts and buttocks, the right to eat at any restaurant (assuming they can get a table), and the right to gamble on sports."
The effect on our society after Dobbs is to create the tyranny of States. States can now outlaw abortion, contraception, same sex marriage, interracial marriage, gambling, sale of liquor, use of marijuana, use of electric cars, the opening of any business on any day that the State decides is a sabbath, the use of cell phones, the use of cars....basically you name any modern action that didn't exist in the 19th century, and the right does not exist in the fourteenth amendment and thus can be legislated out of existence as per Dobbs and Thomas's concurrence.
This is worse than China or Iran or North Korea. And Iran is a great example. The country is ruled by religious leaders, and I can think of at least 25 states that would support similar laws propounded by religious leaders.
Dobbs goes way deeper than criticizing Griswold and Roe. Dobbs opens the doors for a return to the dark ages where vaccines and medical science and human rights are legislated away by majorities of uneducated Americans who are influenced by Fox News, former president Trump, and believe that horse medicine is better than people medicine. Take a poll- a majority of them, or close to it, believe the earth is flat because they cannot see that it is a sphere. Dobbs returns the rest of us to being ruled by uneducated, ignorant people, and the very few smart ones who spend their days manipulating them and gerrymandering state legislature voting maps to achieve their goals for power. We are headed for dark dark times my friend.
Welcome to America 2022.
Thanks again for the opportunity to respond.
There’s a lot to unpack here, but I would just like to make three points. First, Rumpole’s post was strong legal analysis and removed politics. This post lacks focus and muddles the legal analysis with politics. Second, just taking one example—interracial marriage—it’s important to actually read the cases before commenting. The Loving case is not a substantive due process case, it’s an equal protection case. And third, the issue really is on constitutional rights. The states have to balance the competing interests in the health of the mother and the life of the fetus. Those state elections will govern how each state handles this issue. Allowing judges to create rights will always be a problem no matter what side one favors.
How many weeks until the Florida Supreme court invalidates our explicit constitutional right to privacy when they outlaw abortion?
A lot of the issues raised that involve race discrimination are now covered by statute.
As Kid pointed out, Florida has an express constitutional right to privacy. No matter. The Florida Supreme Court will outdo itself to turn back the clock in Florida as well. We've seen nothing but judicial activism from this court.
For all those cheering the Dobbs decision because it supports the right to life: What is to stop any state from enacting a one-child policy similar to China's? Or requiring sterilization after the first child? Only the no-longer-existant right to privacy. Think that this is a strained hypothetical? https://www.theatlantic.com/politics/archive/2014/09/arizona-goper-resigns-after-calling-for-forced-sterilization-of-women-on-medicaid/380191/ Of course, "women on medicaid" was code for black women. Funny how race makes the inconceivable suddenly plausible.
I think because OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL. was decided on both substantive due process as well as equal protection grounds, that while one could try to argue the penumbra and substantive due process were problematic, Justice Thomas cannot revisit the idea that same sex marriage is somehow not entitled to equal protection without considering that Loving v Virginia was also decided on equal protection grounds. Religion could drive people to try to legislate that marriage between the races is invalid just as much as it could drive people to legislate that marriage between the same sex is invalid as well.
Sientifically, life begins at fertilization and unborn children are not part of their mothers's bodies. Let's not be selective. If science is good for Covid and climate change, why is it not good for progressives when it comes to biology?
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