Dissenting Against Dobbs: The Downgrading of Women’s Rights and Safety

By MAUREEN HOLLAND

No doubt you have heard about the Dobbs v. Jackson Women’s Health decision (2022) which, although leaked in advance, was officially issued on June 24, 2022. This shocking decision overturned Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, giving each State the ability to decide its own “interest” and requirements for women who become pregnant.

You may already know what the Dobbs decision means, or you may be confused or have questions. You may be shocked, or even dismayed, by what it denies to and requires of women: that States can and will force women to remain pregnant against their will and prevent them from having control over their reproductive decisions – their own bodies. According to the majority, preventing all abortions is not “sex-based classification,” and does not constitute “invidiously discriminatory animus against women.” (Internal quotations removed.) The dissent completely and totally disagrees. Me too.

Reading the Dobbs decision for me is like reading Outlander by Diana Gabaldon, one day you are a nurse post-WWII walking in a park, when the next thing you know you have fallen through a circle of stones into the 1700s where your rights as a woman are virtually gone, and your knowledge as a nurse subjects you to accusations of being a witch. Well, maybe it is not that severe, but you get the point. Cue music. I imagine Cyndi Lauper’s song, “Sally’s Pigeons,” playing in the background. Cyndi Lauper sings about her childhood friend who died from a back alley abortion:

When I was eight I had a friend

With a pirate smile ...

On the dresser sits a frame

With a photograph

Two little girls in ponytails

Some twenty one years back

She left one night with just a nod

Was lost from some back alley job

On June 24, 2022, the Supreme Court did something no prior Supreme Court had done: it eliminated the constitutional right for a woman to decide for herself, in the first stages of pregnancy, whether to bear a child. Under Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, our Constitution safeguarded a woman’s right during the first stages of pregnancy to control her body and the course of her life, as the dissent in Dobbs points out.

For half a century, Roe v. Wade, and Planned Parenthood of Southeastern Pa. v. Casey, have protected the liberty and equality of women. …Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.

Roe v. Wade was a 1973 case brought by Norma McCorvey (under the pseudonym “Jane Roe”) who, in 1969, sought an abortion. She lived in Texas where abortion was not legal except to save a woman’s life. The lawsuit alleged that the Texas law(s) were unconstitutional. In a 7-2 decision, the Court ruled that the 14th Amendment’s Due Process clause provides a “fundamental right to privacy,” but that this right must be balanced against the government’s “interests” in protecting women’s health and prenatal life.1 Casey (1992) upheld the right to an abortion but changed the standard of review. 2Dobbs overrules both of these cases.

Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child.

Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be. See Casey, 505 U. S., at 853; Gonzales v. Carhart, 550 U. S. 124, 171–172 (2007) (Ginsburg, J., dissenting). Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.

Dissent

As a civil rights employment attorney, fighting for equal treatment of employees, every day (except maybe while on vacation) I view job-related events through the lens of a workplace that could be equal, and measure conduct of employers through this lens. Make no mistake, if you are in a protected category – female, gay, black, disabled, from a foreign country, older than 40, or are targeted due to your religion — you have protections and you may, sadly, know discrimination. You may have had the difficult experience of knowing you had certain protections, felt safe in that knowledge, only to find your employer ignoring those protections. You may have also decided to stand up for your right to equal treatment under the law. Imagine going to work one day knowing you are protected, and then waking up the next to learn you no longer have that fundamental right - that protection that you thought you had (which the highest of scholars and the most powerful of courts assured you would always be your right) –— is now gone because of a decision of six people appointed for their political viewpoints. That is what happened on June 24, 2022.

[S]afeguarding each woman’s reproductive freedom, the Constitution also protected “[t] he ability of women to participate equally in [this Nation’s] economic and social life.” But no longer.

Dissent

By a vote of 6 (Alito, Thomas, Gorsuch, Kavanaugh and Coney Barrett) to 3 (Breyer, Sotomayor, and Kagan) the majority altered that balance between women’s rights and government’s interests. In the words of the dissent, it “discards that balance” between the rights of women and the government’s interest. “It says from the very moment of fertilization, a woman has no right to speak of.” During the last 50 years, the Court recognized competing interests between a woman’s control of her body and the State or Federal Government’s legitimate interest, and sought a balance.

The constitutional regime we enter today erases the woman’s interest and recognizes only the State’s (or the Federal Government’s).

Dissent

How is it possible, you ask, to lose a constitutional right previously granted to women? Politics is the short answer. The far more complicated and longer answer might be summed up thusly: there is a difference of opinion within our legal community as to whether women have equal rights to men. The short answer is, we don’t. We should, but we don’t.

“Today’s Court, that is, does not think there is anything of constitutional significance attached to a woman’s control of her body and the path of her life. Roe and Casey thought that one-sided view misguided. In some sense, that is the difference in a nutshell between our precedents and the majority opinion.

Dissent

Elie Mystal, in his book, Allow Me to Retort: A Black Guy’s Guide to the Constitution, published before Dobbs, describes the importance of looking at constitutional rights from a “first principles” perspective:

If we’re going to talk about the constitutional rights to an abortion, we’re going to talk about it from first principles. And the first principle that the people who wrote the Constitution missed is that women are people. Full, equal, people. If you believe that, and I know a lot of men don’t, but if you believe that women are people, then the right to privacy and all the reproductive rights that flow from it is a fairly straightforward thing.”

The majority in Dobbs tries to persuade us that forced pregnancy is not an “Equal Protection” or equal rights issue. At the same time, the majority tells women that if they do not like the decision (or if they do), they can vote or run for office. The burden for change is now to be carried by women.

Our decision … allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.

Dobbs, Alito

Seeking historical support, the Dobbs majority looked backwards to what laws were in place in 1868, when the Fourteenth Amendment went into effect, to decide what rights a woman had, if that right was “deeply rooted in the nation’s history,” and if so, whether she might be entitled to that right today.3 Of course, in 1868, women could not vote and did not serve in the legislatures or positions of government to influence or vote on the statutes.

To emphasize their point, the majority attached to their Opinion two Appendices: Appendix A, statutes in chronological order criminalizing abortions in the then existing states; and Appendix B, statutes criminalizing abortion in each of the Territories and the District of Columbia, also in chronological order. The majority sees no issue with its historical review of abortion laws, in search of rights “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Instead, it ignores that our nation’s history in the late 1800s was filled with inequalities and injustices.

For its part, the dissent also created an Appendix fully analyzing each of the 28 cases upon which the majority relies in support of its Opinion overruling Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey and concluding that none of the cases cited “is analogous to today’s decision to overrule 50- and 30-year-old watershed constitutional precedents that remain unweakened by any changes of law or fact.”

Since the inception of our country, men of privilege have had rights - the right to education, to own property, to enter into contracts, to make decisions over their bodies, to be lawyers, to vote, and many others in a long list of rights and privileges - bestowed upon them by virtue of being male.4 Women have not had such benefits and have fought long and hard to build up their portfolio of rights: the right to be free from slavery by the 13th Amendment (1865), the right to vote granted by the passage of the 19th Amendment (1920), equal treatment in employment (Title VII 1964), equality in schools (1972, Title IX), and the ERA (Equal Rights Amendment – oh, wait, we don’t have that either). The dissent says it well: But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788— did not understand women as full members of the community embraced by the phrase “We the People.”

Dissent

As the dissent reminds us, only five years after the ratification of the Fourteenth Amendment, when the Supreme Court had the opportunity to support a women’s right to practice law, they refused. Because women in the late 1800s did not have a legal status apart from their husbands, and were not equal to men in the eyes of the law and “Nature,” as the concurrence proudly explained:

The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. … [thus] a married woman [is] incompetent fully to perform the duties and trusts that belong to the office of an attorney and counselor.

Bradwell v. The State, (1872), Bradley Concurrence

The history of the legal treatment of women in the 1800s or at the time of the “founding fathers” reminds all women of the dangers attendant to being second-class citizens. It is hard to imagine a right more basic than the right for a woman to decide for herself whether to bear a child. Sadly, after Dobbs, American women are now dependent on their States as to whether or not they have any rights to their bodily integrity, and whether they can be forced to remain pregnant, under penalty of being charged with a crime. The dissent aptly points out that women who have resources will leave States when needed to obtain an abortion elsewhere, leaving women with limited means to suffer under these draconian laws.

As a matter of constitutional substance, the majority’s opinion has all the flaws its method would suggest. Because laws in 1868 deprived women of any control over their bodies, the majority approves States doing so today. Because those laws prevented women from charting the course of their own lives, the majority says States can do the same again. Because in 1868, the government could tell a pregnant woman—even in the first days of her pregnancy—that she could do nothing but bear a child, it can once more impose that command. Today’s decision strips women of agency over what even the majority agrees is a contested and contestable moral issue. It forces her to carry out the State’s will, whatever the circumstances and what- ever the harm it will wreak on her and her family. In the Fourteenth Amendment’s terms, it takes away her liberty. Even before we get to stare decisis, we dissent.

The NAACP Legal Defense Fund (this country’s first human and civil rights law firm, founded under the leadership of Thurgood Marshall) issued a statement, along with many other organizations, decrying the decision and its impact on families who are black, brown, or low income. They aptly decry the Dobbs decision as a travesty in its disproportionate impact, and in the degree to which it undermines our faith in the judicial system. The LDF President and Director-Counsel, Janai S. Nelson, called the decision “transgressive,” and the Dobbs reference to Brown v. Board of Education (which the majority referenced as justifying the decision) as an “abominable affront to principles of equal protection and racial justice.”

Overturning reproductive rights will inflict a grievous harm on Black, Brown, and low-income people, who … are [already] severely impacted by systemic inequalities and unreliable access to health services, contraception, and comprehensive sexual education. Increased abortion access has also historically had a demonstrably positive economic impact on women, especially Black women. Today’s decision will go down in infamy as one of the most significant acts in undermining the credibility of the Supreme Court.

Janai S. Nelson, NAACP LDF

The NAACP Legal Defense Fund was one of many organizations issuing public statements against the decision on June 24. The American College of Surgeons’ statement opposed the “governmental interference in the clinical practice of medicine and in the privileged physician-patient relationship.” GLAD (GLBTQ Legal Advocates & Defenders) called the decision “[o] utrageous,” “unthinkable” and “shameful.” The American Bar Association filed a brief in Dobbs, relying on extensive legal precedent and urging the Court to uphold Roe v. Wade and subsequent decisions, to try and stop the “irreparable harm” that “reversing Roe would cause women and the disproportionate effect of a change in the law on women of color.” Some churches celebrated the ruling, while others “grieved” it.

As bad as the decision is for women, it also raised the alarm for the LGBTQ community about the future of same-sex intimacy and marriage. Roe v. Wade and Casey have been connected to other freedoms, like the right to purchase and use contraception (Griswold v. Connecticut), same-sex intimacy (Lawrence v. Texas), and equality for same-sex marriages (Obergefell v. Hodges). These cases are part of the same “constitutional fabric.”

I am proudly one of the lawyers on the Obergefell v. Hodges case at the US Supreme Court. Obergefell consolidated cases from each of the states in the Sixth Circuit, including a case from Tennessee. It was an honor to be on that case and help bring about a landmark decision. However, now I am asked often about the impact of Dobbs on same-sex marriage and same-sex intimacy. The main concerns about these topics arose not only from the decision itself and worries about other cases that share that same “constitutional fabric,” but also from comments made by Justice Thomas in his concurrence, and the reactions of the dissent. Justice Thomas invites cases to be filed challenging Obergefell and Griswold, stating: “[I]n future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” The majority try to convince us this will not happen, but the dissent - who know more than any of us about the private discussions had in deciding Dobb - is not convinced, and therefore I am also not convinced. The majority writes that “[n] othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” The dissent takes issue with this, asserting that “[e]ither the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat.” It is distressing to know that LGBTQ members of society are not safe in their intimate relationships from the reach of a Supreme Court, should a case arrive at their courthouse door. Certainly, some will attempt to dismantle the rights of the LGBTQ community, if possible, relying on Dobbs. That is the fear.

This fear is heightened by the Court’s dismissal of the doctrine “stare decisis.” Stare decisis is the respect for prior decisions and precedents, or in the words of the dissent, “a foundational stone of the rule of law; that things decided should stay decided unless there is a very good reason for change.” Arguments advanced in Dobbs and agreed to by the majority had been advanced in Casey “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed,” pronounces the dissent. Both the invitation by Thomas for same-sex marriage and contraception cases and the Court’s disposition mean LGBTQ communities need to be wary and vigilant.

As the dissent points out, [t]he majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did. That approach is “flawed,” as the dissent reminds us. We no longer live in the mid 1800s, and the rights of women

1 This decision meant that State created abortion laws were subjected to the highest standard of review – the abortion law must further a “compelling governmental interest” and be “narrowly tailored.” The lower standards are “rational basis” – is the abortion law rationally related to the “legitimate” (not compelling) government interest; and intermediate scrutiny – does the abortion law further an “important” (not “compelling”) government interest?

2 Casey stepped away from applying the “strict scrutiny” (highest) standard of review, and instead allowed courts to use a less stringent standard of review (making it easier for states to restrict some abortions) – whether abortion restrictions place a “substantial obstacle” (undue should not be relegated to that time. We must do more to protect the rights of women. As lawyers we give voice to the legal problems we encounter; we speak up so our clients can be heard. We raise objections to injustice, and work to overturn inequities. When faced by a majority that “betrays its guiding principles” and where “[p]ower, not reason, is the new currency” we must speak out and speak up. Often. We must continue to do more and of course to vote.

The dissenting justices ended their opinion this way:

“With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”

So do I.

#dobbs, #reproductivejustice, #blackmaternalhealth, #abortion, #roe, #reprorights, #roeroeroeyourvote burden) in the way of women seeking an abortion of a “non-viable fetus.”

Maureen Holland graduated from Vermont Law School, and is licensed to practice law in Tennessee, Vermont, the United States District Court for Western Tennessee, the Fifth and Sixth United States Circuit Courts of Appeal, and the United States Supreme Court. Following law school, Ms. Holland worked as a judicial law clerk for four State of Vermont trial courts. Later, she served as the first legal counsel to the Vermont Water Resources Board, and as its Interim Executive Officer. She then went on to spend three years as the Senior Law Clerk to the Honorable Jon Phipps McCalla, and two years as an Associate at a mid-sized Memphis firm before opening Holland & Associates, PC. in 1997.

3 The phrase “deeply rooted in the nation’s history and tradition,” also known as the “Glucksberg test” comes from the Washington v. Glucksberg (1997) case (constitutional liberty interest does not include right to assisted suicide) wherein the Court did not recognize a right (not abortion/reproductive rights) because the right was not “deeply rooted in the nation’s history and tradition.” This test has been criticized for obvious reasons.

4 This primary meant being protestant, male and of European dissent.