In his zealous efforts to remake an American society that he clearly despises, the reactionary and “conservative” majority that now dominates the United States Supreme Court (and many Circuit Appeal Courts) was mainly based on the fact that the founders of the country could not, in practice, predict all the individual rights that the Constitution could possibly provide.
Following an opportunistic approach of ignoring precedents and cases to overturn rulings it no longer likes, right-wing jurisprudence over the past fifty years has focused on reducing or eliminating perceived deviations from it. to the original text of the Constitution, all in the name of an “originalism” tinged with conservative. It is no accident that this diminished the power of the federal government to provide for the needs of the American people in environmental, labor, and social policies, for example, none of which is even mentioned in the Constitution.
The two Roe deer decision and its progenitor, Griswold v. Connecticut (who found an interest in freedom in the right of married couples to use contraception) are based on the assumption that the Constitution grants a clear, albeit unwritten, right to privacy that extends to private decisions and personal such as the decision to reproduce or not.
This fundamental interpretation – that the Constitution can mean something he doesn’t do explicitly to say-is anathema to the Conservatives, not because it violates a sacred allegiance to James Madison, but because it threatens their right to impose their beliefs on others. In some cases, they feel they have the right to impose their theocratic and patriarchal convictions (case of Amy Coney Barrett, for example). In others, they believe they have the right to impose their racial prejudice (in the case of Judge of Self-loathing Clarence Thomas or Chief Justice John Roberts, who like his predecessor, William Rehnquist, based his early legal career on deny the vote to black people). Still others simply wish to inflict their pro-business and anti-worker sensitivities on us (in the case of the virulent anti-union Judge Samuel Alito, for example). They all have their own grinding ax, but the key question that unites all conservatives is control, and finally the domination others.
The 1960s-era Supreme Court that ruled Griswold (after that, deer) found a right to privacy implicit in multiple constitutional amendments, including those we call the Bill of Rights, in private decisions that inform freedom of search and seizure, freedom of speech and assembly, and due process, for example. What this ultraconservative court of 2021 seems to want to do in the Dobbs the matter currently under consideration is to repudiate the very idea that a right to liberty can be found in something other than the explicit text of the Constitution. Once he has not found any inherent constitutional right for women to terminate their pregnancy, he can then wash his bloody hands of the matter by considering that it is a matter to be decided by individual states. .
But the Court is already well aware of what states will do, because the need to remove the fundamental reproductive decisions of peoples from the hands of individual states was the sole reason for the Roe deer and Griswold decisions in the first place.
The embarrassment of having to overturn one of its own decisions to achieve this is made much easier by the fact that, since the 1970s, the law has indeed and intentionally woven its own jurisprudence, often in the context of the law. criminal law but also in the area of administrative law, to justify limiting the powers of the federal government to meet the needs of their corporate supporters. But as Wehle points out, following the general conservative model by attacking the Roe deer ruling in this way, the court can now justify further efforts to undermine and reshape American society so that it conforms to its distorted view of the way things are done. should be:
The point is that the dangers of doing without Roe deer go far beyond abortion, as the legal logic that threatens this particular right could quite easily spread to others, prompting states to try new laws that regulate choices about who to marry, who to be with. intimate, what contraception to use and how to raise your own children.
Wehle notes that on several occasions since the 1920s the Court has used the same reasoning as in Roe deer find protected rights to liberty allowing, for example, marry someone of a different race, be protected from forced sterilization, or have sex with a person of the same sex. The court had also previously held that liberty rights were implicit in the decision of people whether or not to educate their children in public schools. In short, there are many things that the Constitution did not explicitly provide for and which are implicit in its language.
Since Clarence Thomas happens to be married to a white woman – that is to say, since he would be personally affected by it – one can probably rule out the possibility that the Court invalidates his marriage on the grounds of interbreeding … at least until that time. that he retires. But the point here is that the cases where the Court found such interest all stemmed from arbitrary actions at the state level, and generally those actions, all deemed unconstitutional, were rooted in some type of prejudice or bias. , whether anti-gay, anti-black, or anti-criminal-accused. (The Skinner case cited above involved the court finding that Oklahoma’s Criminal Sterilization Act requires the sterilization of repeat offenders in crimes involving “moral turpitude.”)
In other words, these dubious laws were spawned by the same inflammatory hatreds that are now mounted on the right against transgender people, for example.
Wehle’s argument is that to deny that the Constitution implicitly finds these types of laws heinous and thus relegates them to the states – which is exactly what the Court intends to do by striking down Roe deer– will essentially mean declaring the season open to oppressed or minority populations by any state whose right-wing legislature considers it politically expedient or “popular” to adopt laws restricting their rights.
As Wehle observes:
So say that Roe deer is a unique constitutional blunder, built on a fragile foundation, while other rights are set in stone, is a myth – and a dangerous one. Nothing in the Constitution says anything to specifically protect the ability of couples to choose to have sex, use contraception, get married, decide how to educate their children, refuse bodily inspection, or medical treatment and, yes, terminating a pregnancy. From a legal point of view, if Roe deer falls, it’s hard to see what else will still be standing.
As Wehle notes, the right will protest that abortion is a “special case” since it involves the rights of “human life” (in this case, an amalgam of human cells without viability outside the body. of the woman), but as she explains, it is simply a dodge: “[S]saying so does not mean that critics of other privacy-based rights could not find their own reasons why these rights must also be weighed against other competing interests.
One need only look at the behavior of the Republican Party in its modern form to see how easily a “human life” of a certain type of skin tone or sexual orientation can be devalued. In Republican parlance, some lives are simply more valued than others, depending on the prejudices taken into account. And laws that discriminate, even effectively nullifying the rights of these groups, LGBTQ people in particular, appear to be enduring targets.
But some might ask, what about the equal protection clause? Doesn’t that prevent such discrimination? The short answer is that this right-wing Supreme Court has already started to dismantle the idea of ”equal protection” by noting that such protections can, for example, interfere with “religious freedom”. And although only a few years ago the Court found that same-sex marriages are protected by due process and the equal protection clause, the majority which decided that opinion no longer exists, having been replaced by a majority actively hostile to it. If the Court is as disdainful and contemptuous of past precedents as it now shows of Deer, how long does anyone expect this decision to last?
So as if it wasn’t bad enough, the Court’s eagerness to reverse Roe deer and condemning all American women to second-class citizenship has implications that go far beyond whether abortion can be criminalized by states. Decades of efforts by the Republican Party to transform itself into a permanent minority government suggest that we may soon have people like Marjorie Taylor Greene, Paul Gosar and Lauren Boebert who will set the country’s legislative agenda, continuously promoting legislative assaults against anyone they consider inferior and unworthy of representation, most obviously people of color or the entire LGBTQ population. We can only expect the same pattern to be repeated by Republicans who control their own state legislatures. The Supreme Court has just telegraphed their authorization to do so.
Remember that the majority of Americans do not support the cancellation Roe deer, and they certainly won’t support it when the consequences become clearer. But as long as the Supreme Court remains in its current, enraged and radical form, and without serious legislative backlash, we are likely to face changes in our society that go far beyond the issue of abortion rights. We are already entering Black mirror Where fuzzy area territory, with armed and delusional right-wing paramilitaries literally chasing our elected officials or threatening them with violence and harassment for the simple fact of doing their job.
We have a former president operating as some weird sort of malicious and disruptive presence in absentia. And we have a population so deceived by social media that just getting people vaccinated against a pandemic has become a divisive “political” issue.
In the absence of serious and radical improvements in our institutions, it is clear that the cancellation Roe deer will have consequences that permeate and impinge on other areas of our lives, as will the right to make reproductive decisions, which many of us now take for granted. For the right, canceling Roe deer is not an end, but a beginning.