A Gaping Hole
I am writing this column within hours of the U.S. Supreme Court’s ruling in Dobbs v. Jackson, in which the Court overturned nearly 50 years of precedent that enshrined a person’s right to abortion. That right, first conferred in Roe v. Wade in 1973, has now gone “poof.”
How can the Supreme Court recognize a right only to then later say, “never mind”?
Apparently, pretty easily.
Longtime readers of my columns will recall that before I did anything else, I was a civil trial lawyer. I often relied on Supreme Court decisions as I briefed various issues and argued in front of judges. Back then, I had the greatest respect for all courts, but particularly for the U.S. Supreme Court. Indeed, I spent a college semester in Washington D.C., where I studied attorney oral arguments and briefs from a student rights case in the Supreme Court library. I also had the unforgettable experience of sitting in the Supreme Court gallery as the Justices heard arguments on a case from Iowa.
That was then. This is now. And wow, now sucks.
As someone who fought hard for her womanhood — and who now exquisitely understands how women in America are often marginalized — the Dobbs decision really burns. Abortion will now be illegal in about half the states. In many cases, the ban on abortion will be absolute, with no right to abortion in the case of incest or rape or even to protect the life of the pregnant person.
Beaten and raped by a stranger, or your own partner? Tough luck. You are required by the courts to carry the result of that trauma inside you for nine months. A child birthed from that devastating physical and mental trauma — to say nothing about the genetics of the man involved — is apparently okay to add to our increasingly violent society. Your own trauma does not matter.
A woman who is already raising children, or too young or ill-prepared, with an unfit father, an absent father — all okay according to six people on the Supreme Court.
However, while I am angry over what the Supreme Court has done, I am even more incensed thinking about what the Court might do in the not-to-distant future.
There is a gaping hole in the Dobbs decision — one big enough to drive a Mack truck through relative to reversing other rights. Here is the relevant language:
“Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion. Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided. Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis.”
All you need to do is replace “abortion” with “gay sex” or “transgender persons” or “mixed-skin color marriages” or “contraceptives” or “desegregation” and you have got the perfect formula for taking away more rights.
If the guiding light is “What did America look like in the mid-19th century?,” we are screwed. That was a time when white men of certain Christian faiths controlled everything.
Even more, as if on cue, as I was finishing the first draft of this column, Justice Clarence Thomas filed a concurring opinion in Dobbs. He wrote that the Court should “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell” — meaning that he welcomes cases that would allow the Court to take away rights relative to contraception, intimate sexual relations, and marriage equality. [Is he forgetting that he is in an inter-racial marriage, which in his own definition should be reconsidered?]
Dear gentle readers, we are headed to a time when a small minority of people with deep out-of-step religious convictions and immense power can dictate how the majority of Americans live. This is the exact opposite of how a democracy should operate.
My clarion call: become involved, run for elected office, march in the streets, and vote. Get everyone in your life to do the same thing. Our democracy depends on it.
I never imagined America would ever be at this place. It is damn appalling. No other phrase fits.
Ellen (Ellie) Krug, the author of “Getting to Ellen: A Memoir about Love, Honesty and Gender Change,” speaks and trains on diversity and inclusion topics. Visit elliekrug.com, where you can sign-up for her monthly newsletter, The Ripple. She welcomes your comments at [email protected]
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Ellie, Well said! I am feeling frustrated by the lack of response from those around me…like this is no big deal. IT’S A BIG DEAL.