We Have Only the Rights the Majority Deigns to Give Us

We Have Only the Rights the Majority Deigns to Give Us June 24, 2022

This is a horrible day in the history of the United States. In a 5-4 ruling, the Supreme Court has overturned Roe v. Wade and in doing so, taken away fundamental rights from half the country.

I will leave the elaboration of the evils of this decision to those more directly impacted by it: those who can become pregnant. I want to discuss the reasoning behind the decision and what it means for all of us.

The Court’s majority has made it very clear: we have only the rights the majority deigns to give us.

“Originalists” and “Textualists” are taking us back to 1791

Justice Alito’s opinion states that there are “two categories of substantive rights.” The first category are those specifically enumerated in the Constitution. The second are those that are “deeply rooted in history and tradition” and “essential to our Nation’s scheme of ordered liberty.” Anything else is subject to the whims of politicians.

Yesterday the Court released a ruling overturning New York’s strict gun laws. The ruling itself was limited and reasonable – it essentially said that issuing gun permits based on the subjective evaluation of an officer is unconstitutional. New York needs to change its law to match 43 other states that issue gun permits based on objective criteria. The problem was that the ruling of the Court (written by Justice Thomas) spent page after page after page detailing the history of weapons laws going back to 14th century England. If it was legal in 1791 (when the Constitution was ratified) it should be legal now.

We see the same reasoning in this case. There was no historical right to an abortion, therefore there is no right to an abortion now.

This is the direct result of the “originalist” and “textualist” legal theories pushed by Republicans for the past decades. It says the law is frozen unless the legislature changes it.

And now, thanks to Donald Trump and Mitch McConnell, they have the power to put that theory into practice. And they have.

For the first time, the Supreme Court takes away rights instead of expanding them

In their dissent, Justices Breyer, Sotomayor, and Kagan restate what used to be common knowledge and practice in the judiciary:

Our law in this constitutional sphere … has considered fundamental constitutional principles, the whole course of the Nation’s history and traditions, and the step-by-step evolution of the Court’s precedents. It is disciplined but not static. It relies on accumulated judgments, not just the sentiments of one long-ago generation of men (who themselves believed, and drafted the Constitution to reflect, that the world progresses).

Roe v. Wade was the product of that evolution. It has been the law of the land for 50 years. But now five judges have determined that it was improperly decided, and it is no more. They have taken rights away.

From the dissent:

Rescinding an individual right in its entirety and conferring it on the State, an action the Court takes today for the first time in history, affects all who have relied on our constitutional system of government and its structure of individual liberties protected from state oversight.

Abortion is a complicated, difficult, emotionally-charged issue. This ruling takes it out of the hands of individuals and puts it into the hands of politicians.

They’re coming for contraception, sexual liberty, and marriage equality next

Justice Alito says that the question of human life makes this case unique and says this ruling does not apply to any other cases:

we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.

Yet in his concurring opinion, Justice Thomas makes it clear he’s not satisfied:

in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell … After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.

Griswold established the right to contraception. Lawrence invalidated a Texas law criminalizing same sex relations. And Obergefell established marriage equality.

If you think they’re stopping with abortion, you’re dangerously naïve.

This will not be “left to the states”

The Dobbs ruling doesn’t outlaw abortion. It leaves states free to regulate it as they see fit.

If you think the anti-abortion fanatics were telling the truth when they said it should be “a state issue” you haven’t been paying attention.

Their ultimate goal is a nationwide ban on abortion. That’s not possible with a Democratic President, but if the Republicans re-take Congress this year, expect to see bills completely outlawing abortion filed. If a Republican wins the Presidency in 2024 we may be glad the filibuster is still in place.

They will stop at nothing to outlaw all abortions

Texas’ vigilante abortion law – that is now irrelevant, or will be in 30 days – shows the extent anti-choice zealots will go to stop people from ending unwanted pregnancies. They will not stop here.

Expect to see laws banning the receipt of abortion medication, and laws banning travel to a free state to get an abortion. Expect to see laws making it illegal to help someone obtain an abortion, even just by providing them with funds.

Will these laws be upheld? Justice Kavanaugh said

may a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.

But he lied about Roe v. Wade in his confirmation hearing, so who knows if he’s telling the truth now.

What do we do now?

In the short term, we help people who need abortions get them, either with medication or with trips to free states. Give money to Planned Parenthood. Give money to abortion access funds.

In the medium term, we vote for Democrats and only Democrats, at every level, especially at the state level.

No, the Democrats aren’t perfect. Yes, they should have encoded Roe v. Wade into federal law decades ago. No, not all Democrats are pro-choice. That why we vote in the primaries and only vote for pro-choice candidates there. Primaries matter.

But there is no other option. The United States has a two-party system. Voting Green or Libertarian (or worse, not voting) accomplishes nothing, unless it’s some local race where a Green or a Libertarian actually has a chance to win.

There is no quick fix

There is no higher court to appeal to. I saw someone say they hoped the EU would step in and do something. That person is hurting so I didn’t slam them, but that comment is so wrong on so many levels. There is no quick fix to this.

Elect Democrats. Vote for pro-choice Democrats in the primaries. Make sure all your representatives know reproductive rights are your top priority.

Continue making the case that abortion is not a “state issue.” It’s an individual issue.

And stop accepting “originalist” and “textualist” arguments without challenge. Legislation must be specific – laws must mean what they say they mean. But the Constitution and especially the Bill of Rights are statements of principles, of concepts, of virtues. They don’t just mean what they meant in 1791. By the standards of the originalists, Dred Scott (1857 – affirmed slavery) was decided correctly, because slavery was legal when the Constitution was ratified.

As today’s dissent states:

the Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation. It has kept true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions.

We must return to the idea of a living Constitution.

Challenge the authoritarians at every level

When people tell you who they are, believe them.

Read the platform of the Republican Party of Texas. These white Christian nationalists are a small minority. But they’re a small minority that understands how power works, and they use it to control the state.

And now, after 40+ years of consistent work, people who think like them have used it to take fundamental rights away from half the country.

And they’re not going to stop with abortion.

They must be defeated: at the polls, in the courts, and in the court of public opinion.

Pick a side

I get it. Some people are uncomfortable with abortion.

I think the Roe court got it right and human life begins at viability. I understand other people may have other thoughts. What I don’t understand and what I will not accept is the idea that you can be so confident in your belief of when human life begins that you feel entitled to make that decision for everyone else.

They’re coming for birth control next. They’re coming for the rights of gay people to marry. They’re coming for the rights of consenting adults to have sex with other consenting adults.

Think none of that matters to you? Did you know that prior to Lawrence, oral sex between straight couples was illegal in 18 states?

And Justice Thomas thinks laws like that are perfectly OK.

A majority of the Supreme Court believes we have only the rights the majority deigns to give us. And they have made it so.

So we have to form a new majority that declares with the force of law that fundamental rights are for everyone.

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