The Dobbs Leak: A Litany of Anger

The Dobbs Leak: A Litany of Anger May 4, 2022

I can’t say I didn’t see it coming. That doesn’t make it any easier.

When the U.S. Supreme Court refused to stay the Texas vigilante abortion law, it was a clear sign that a majority of the court was ready to overturn Roe v. Wade, the landmark 1973 decision that legalized abortion in this country. On Monday night, Politico published a leaked draft of a ruling by Samuel Alito in the Dobbs v Jackson case. At least five justices are ready to overturn Roe and Casey.

I knew this was coming. I’ve thought about what I’d say when it did, but I can’t write any of those words right now. I’m too angry.

Lots of people are angry right now. Justifiably angry. Righteously angry.

I’ll leave the discussion of the impact of this horrible ruling to those who are more directly affected by it: those who can become pregnant. But anyone who cares about justice and worries about the future of this country has a right to be angry.

I suppose I should point out that the leaked ruling is not a final ruling. There is, in theory, still time for Brett Kavanaugh and/or Amy Coney Barrett to keep their word and respect Roe v. Wade as settled law. But I do not expect that to happen. They were put on the court for the primary purpose of overturning Roe, and so they will.

There’s plenty of blame to go around

Let’s put the primary responsibility where it belongs: on Alito, Thomas, Gorsuch, Kavanaugh, and Barrett. They’re called “justices” for a reason. But they place fidelity to a literal reading of the Constitution above the principles of the Constitution, even when it results in fundamental rights being stripped from half the population. They’re the ones taking away the right to an abortion and I’m angry with them.

I’m angry with Mitch McConnell. He made up a rule to deny Merrick Garland a seat on the Supreme Court. And then he pushed Amy Coney Barrett through in record time. Principles be damned – McConnell packed the court with regressive judges determined to overturn Roe.

I’m angry with Donald Trump for appointing Gorsuch, Kavanaugh, and Barrett. Trump did tremendous damage to this country, but his court appointments are the worst because federal judges are appointed for life. They may be brilliant legal minds, but anyone who believes the Constitution should be interpreted the same way in 2022 as it was in 1787 is not qualified to sit on the highest court in the country.

I’m angry with everyone who voted for Trump, McConnell, and the other Senators who voted to confirm these justices.

I’m angry with everyone who thinks they know when human life begins – a question theologians, philosophers, scientists, and ordinary people have struggled with for millennia – with such certainty they think they have the right to make that decision for everyone else.

I’m angry with everyone who didn’t vote for Hillary Clinton in 2016. I don’t care about her e-mails, or her ties to Wall Street, or that fact that she ran an ineffective campaign. I don’t care if you think politics is beneath you or “they’re all the same anyway.” They’re not, and Hillary would have been an infinitely better President than Trump. We all knew what could happen if Trump was elected, and now it has.

I’m angry with the Democratic Party. They’ve had almost 50 years to codify Roe v. Wade into statutory law, and other than a half-assed effort earlier this year they’ve done nothing. Like Republicans with immigration, they chose to fundraise on the threat rather than fix the problem.

That said, voting for Democrats and only Democrats is the only way to reverse this injustice. You can’t fix a problem like this unless you work the system more effectively than your opponents.

They need to shut down everything, abolish the filibuster, make a deal with Joe Manchin (or just threaten him), shame Susan Collins (who voted to confirm Kavanaugh because he said Roe was settled law), and pass a nationwide abortion rights law now. Biden, Schumer, Pelosi, and the rest of the Democrats need to become as ruthless and as effective as Mitch McConnell.

Or, you know, step aside and let Bernie Sanders, Elizabeth Warren, and Alexandria Ocasio-Cortez run things.

A recipe for unchecked legislative oppression

Over the course of the last 60 years or so, a series of Supreme Court rulings established a body of case law expanding the rights of individuals to live their lives as they see fit without government interference. The right to birth control, interracial marriage, abortion, private same sex relations, and same sex marriage are all rooted in the right to privacy, autonomy, and human dignity. These rights are not specifically listed in the Constitution, but are clearly implied by what Justice William O. Douglas in 1965 called the “penumbra” of the Constitution – a contemporary understanding of the principles articulated in the document itself.

There have always been those who disagree with this philosophy. Some of them believe legislatures – especially state legislatures – should be free to make any law that isn’t explicitly forbidden. In his dissent in Lawrence v. Texas (2003) Antonin Scalia said that criminalizing private consensual same sex relations is “well within the range of traditional democratic action.”

I’m angry that intelligent, well-educated people believe that other people’s rights should be subject to a vote.

I’m angry that those who genuinely believe in an “originalist” interpretation haven’t passed constitutional amendments to specifically enumerate the right to privacy and autonomy.

The Dobbs dissent(s) by Justices Kagan, Sotomayor, and Breyer (and possibly Chief Justice Roberts) were not leaked. They will make the case for why Roe should stand far better than I can. But originalism is a recipe for unchecked legislative oppression, especially in this era of computerized gerrymandering.

And that makes me angry.

Once again, a nation divided

Overturning Roe v. Wade does not outlaw abortion. It means state legislatures are free to regulate, restrict, or outlaw it. About half the states have already done so, or they have old laws on the books that will become active again. Other states are likely to follow.

In deep blue states, abortion will remain legal and available, and so abortion will remain accessible for those with the time and money to travel… at least until red states make that illegal too. They will try to do that – whether this court will allow it to stand remains to be seen. The poor will be left to suffer and die, as they so often are.

Either way, the United States will be divided into free states and unfree states. The last time that happened it ended very badly.

It makes me angry that American citizens have fewer rights in some states than in others, and that judges sworn to uphold equal rights under the law are OK with that. It’s one thing if we’re deeply divided in our individual opinions. It’s a very different thing if laws are significantly different from state to state.

Abortion is only the latest right to fall

In the leaked draft, Alito said “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Either he’s lying or he’s a fool… and I don’t think he’s a fool. The far right is already attacking trans people and the courts are doing little to stop them. They’re coming for same sex marriage next, using the same logic Alito uses to overturn Roe v. Wade. Then they’ll come for Lawrence v. Texas, allowing them to put people in jail for being gay again. And then for Griswold v. Connecticut, allowing them to outlaw birth control.

Will they succeed? I don’t know. Alito says that abortion is a special situation, but Kavanaugh and Barrett said Roe was settled law – assurances from conservatives mean nothing. I just know regressive politicians will continue to try to take rights away from others.

I also know the anti-choice zealots are not satisfied with returning the question of abortion to the states. They will not stop until there’s a nation-wide ban on abortion.

And that makes me very, very angry.

Reason tomorrow – anger today

My goal with this blog is to be a voice of reason, a calming influence in a hyperbolic world.

I have no words of comfort to offer. I have no plans or strategies, other than what little I’ve included here.

Others have already been doing prep work for this possibility – I intend to listen to them and figure out how I can best contribute to caring for vulnerable people, and how to most effectively work to reverse this injustice.

But that’s for tomorrow. For today, I need to voice my anger.

And I’m very, very angry.

Note to commenters: you are welcome to disagree, but keep your disagreements polite, factual, and rational. As should be quite clear by now, I’m angry and I will be very loose with the “delete” and “block” buttons. In particular, comments that engage in name-calling and whataboutism will be deleted without warning.

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