Dobbs v Jackson Women’s Health Organization
The United States Supreme Court heard oral arguments on the case Dobbs v Jackson Women’s Health Organization this week. It is a direct challenge to Roe v Wade, the 1973 case that allowed women to legally access abortions throughout the United States up through twenty weeks of pregnancy. The essence of the Dobbs argument, was that Roe was “wrongly decided” by the ’73 Court, when it discerned a Constitutional right of women to control their own bodies. The state of Mississippi (Dobbs) argued that the United States Constitution is “neutral” on the that issue, and therefore their state should be able to regulate it under the Tenth Amendment as “a power not delegated” to the Federal government.
There is a singular reason why Mississippi brought this direct challenge to Roe: the changes in the Justices who will decide the case. Due to two deaths, a resignation, and the machinations of Mitch McConnell; President Donald Trump was able to appoint three Justices to the nine judge panel. All three were historically against Roe, but pledged “loyalty” to the precedents set by prior Courts. Now that they are “in the chair” though, their arguments demonstrate a willingness to throw the Roe decision out. Along with two already sitting Justices, they have a five vote majority.
Legal Weeds
The politics aside, the Court is on the cusp of making a major change in direction. The “discerned right” of women to control their bodies is only one case. There’s a series of decisions made by the Court about greater personal freedoms, all based on similar legal reasoning. The Court reasoned that States could not ban interracial marriage (Loving v Virginia), use of birth control (Griswold v Connecticut), abortions (Roe v Wade and Casey v Planned Parenthood), homosexual activity (Romer v Evans) and most recently gay marriage (Obergefell v Hodges).
The basic argument is that the Constitution contains a right to privacy and to equal protection under the law. Since that right is in the Constitution, the individual states do not have the authority to control those private behaviors. Mississippi is directly challenging that concept. If the Court accepts the reasoning, all of these other precedents are at risk as well. It doesn’t mean that abortions, interracial marriages, gay marriages, birth control or homosexual activity could become “illegal” nationwide. But it could mean that individual states would regulate those actions differently, depending on the state.
Divided America
We already see that occurring with abortion laws in the United States. In many states, the legislatures are dominated by those who want abortions completely banned. Some of those states have done everything they could, within the scope of the Roe and Casey decisions, to regulate abortions from within their borders. Missouri and Texas, have succeeded. Other states recognize the “spirit” of Roe and Casey, and only regulate abortions after the 20th week of pregnancy, when the baby could survive outside of the mother.
We saw the same thing prior to the Obergefell decision, where some states allowed gay marriage, some states established a second form of “union” to encompass it, and many states, like Ohio, went out of their way to pass laws banning same-sex unions. A couple could be married in Massachusetts or in a “union” in Vermont, but their relationship was not recognized in Ohio or Kentucky.
Let Freedom Ring
This case is an outgrowth of the great crisis that America is facing today. We are a nation of change. The dominant majority of “white people” will no longer be the majority in a few years. The United States has always prided itself as a nation of immigrants. But when those immigrants stopped looking like “everyone else”, they were perceived by some to be a threat.
I can sit in a classroom today in little Pataskala, Ohio, and have students who are Muslim, Hindu, Buddhist, and Sikh; as well as Southern Baptist, Catholic, Presbyterians, Lutherans, a couple of Jewish kids and a whole lot of non-believers. Even this “white ‘Christian’ suburban community” has changed.
Also in that high school classroom are straight kids, gay kids, trans kids, and lots of kids who don’t “identify”. For some in America, all of this change is incredibly threatening. It challenges their vision of what “America” should “look like” and “act like”. Their state legislatures are enforcing that vision of human behavior. And they are threatened by women choosing to have abortions.
Who Decides What to Believe
Their argument is that they are protecting a life by preventing abortion. And they have every right to have that belief. The question the Supreme Court answered in Roe and all of these other cases, is that “personal beliefs” should not be enforceable by law when they are about private behavior. The Roe decision carefully parsed when the state had an interest in the growing fetus, and determined that its rights outweighed the privacy rights of the mother only after it could physically survive outside her womb.
If a pregnant woman believes that she should protect that life and carry to term, that’s her choice. If she determines that she does not want to do so, and it’s the 20th week or before, then the Court said she can make that choice as well. The Roe decision said that the individual state legislatures shouldn’t be able to determine her choice for her.
Consequences
It’s likely that the Supreme Court will overturn Roe v Wade. Thirty or more states will say what the ‘correct’ belief is, and ban most abortions. But don’t think that “correct-ness” will stop there.
What we thought were “inherent” rights of Americans to be themselves, love who they want, and have their own personal beliefs, may all be at stake.
