Judicial capture series. The Roe decision.

How did this single pending decision pose a direct threat to judicial review itself?

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Editor’s note: The following was written shortly before the announcement by the U.S. Supreme Court of the decision to overturn Roe v. Wade. It is published here as we feel it is still relevant and important information.

The pending Supreme Court reversal of the Roe and Casey decisions has happened. The leaked decision, (in draft form), is not only an attack on abortion rights under any circumstance; it is also an indirect attack on associated privacy rights, which are necessary to fulfill the promise granted by the equal protection and due process clauses of the 14th amendment. The right to privacy and subsequent rights couched under that legal umbrella are considered ‘unenumerated rights, which are not directly cited by name, though they are consistent with the principles espoused by the Constitution.

These rights include the following: the right to engage in consensual relations with other adults, the right to marry outside of your race, the right to same-sex marriage, the right to control your reproductive life by using contraception, and the right for cis-gendered women or members of the LGBTQ communities to obtain credit, live where they like, and possess legal rights equal to the rights enjoyed by white, Christian, cis-gendered men, regardless of state-level laws seeking to ‘legalize’ and legitimize state sanctioned discrimination under the ‘states’ rights argument. This leaked decision written by Justice Samuel Alito goes one step further; it transfers power from the federal judiciary to individual state legislatures.

Put bluntly, this pending decision is a direct assault on federal judicial review itself.

It’s the ‘originalist’ thing—stupid…

Wielding the bogus doctrine of constitutional ‘originalism’ like a psychotic teen waving a fully loaded AR-15, Alito and fellow radical conservatives seek to engineer a raw transfer of power from the judiciary—to radically conservative, anti-democracy, state legislatures presently controlled by the GOP.  With the sweep of a pen, Alito & Co., will allow for the revival of Jim Crow and the subsequent ersatz neo-Confederacy, which will be immune from any federal judicial review.

The process by which this transfer will occur is Machiavellian in scope and intent. Alito’s majority opinion goes far beyond abortion rights and associated unenumerated rights couched within the privacy argument.  Alito has written a judicial edict which disbands the authority and legitimacy of judicial review itself, on the altar of the old ‘states’ rights’ trope.  It could be considered the logical conclusion to a multiple decade long campaign specifically created to dismantle federal supremacy, both in Congress, and the courts.

So, how did this single pending decision pose a direct threat to judicial review itself? The foundation of Alito’s argument is crafted by elevating ‘history’ and ‘tradition’ over actual legal precepts, and it sets the stage to rescind any unenumerated rights at a wholesale level, rivaling Walmart.

Reasoning behind pending Roe reversal……

By now, the global legal community is painfully aware of this leaked draft which promises to reverse the Roe and Casey decisions respectively.  The lay community is also aware that the unenumerated ‘right to privacy’ is also in jeopardy, and the ramifications are dire. Contrary to the urban myth constructed by anti-abortion, anti-women’s rights groups; Roe was not singularly an abortion decision. It was a reasoned response to state level intrusion on privacy rights.

Though privacy rights are not specifically mentioned in the Constitution, they are alluded to as necessary to fulfill the promise cited under the 14th amendment, specifically via the due process and equal protection clauses.

Within this framework, various rights were granted by striking down state laws which denied equal rights to racial minorities, women, and the LGBTQ communities. No longer could states deny interracial or gay couples the right to marry. No longer could states deny women the right to control their reproductive lives by using birth control. No longer could states criminalize gay sex, essentially criminalizing–being gay. Every one of these activities were protected under the judicial umbrella of ‘privacy rights.’ So, how did ‘privacy’ rights incorporate the right to marriage equality, birth control and abortion?

Privacy rights explained ….

Noted legal expert Marjorie Cohn recently published a piece which condemns this attack on privacy rights. Cohn wrote the following. 

Alito’s …”explosive draft opinion in Dobbs v. Jackson Women’s Health Organization, which was leaked to Politico, Samuel Alito overrules Roe v. Wade and Planned Parenthood v. Casey. His draft holds that abortion is no longer a constitutional right and leaves the fate of those who seek abortions to the vagaries of state laws.” Will Demise of “Roe” Be a Death Knell for Contraception, Marriage Rights? (truthout.org)

Cohn goes on to quote Alito in the leaked decision as the following;

“We therefore hold that the Constitution does not confer a right to abortion.”

Alito further wrote that,

“Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.” Will Demise of “Roe” Be a Death Knell for Contraception, Marriage Rights? (truthout.org)

Cohn explained the history and rationale behind the ‘privacy’ rights argument.

“Nearly a half century ago, the Supreme Court held in Roe that the Constitution protects “a woman’s decision whether or not to terminate her pregnancy.” The court relied on longstanding precedents holding that the Fourteenth Amendment’s concept of personal liberty “prohibits governmental interference with personal decisions about marriage, contraception, procreation, family relationships, child-rearing and education.” Will Demise of “Roe” Be a Death Knell for Contraception, Marriage Rights? (truthout.org)

Cohn then explained the additional rationale behind the Casey decision, stating that;

“Twenty years later, in Casey, the court reaffirmed the central holding of Roe – that a pregnant woman has the right to an abortion before the fetus becomes viable (at about 23 weeks of pregnancy). Casey highlighted the “settled” principle that “the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood … as well as bodily integrity.” Will Demise of “Roe” Be a Death Knell for Contraception, Marriage Rights? (truthout.org)

Cohn added that the Court cited Casey…”with approval in Washington v. Glucksberg, in which it listed the right to ‘abortion’ with the rights “to marry,” “to use contraception,” “to have children” and “to bodily integrity,” which are recognized in a “long line of cases” that interpret the Due Process Clause.”

Cohn reminded us that …”it requires due process before the government can deprive someone of life, liberty or property.” Will Demise of “Roe” Be a Death Knell for Contraception, Marriage Rights? (truthout.org)

Casey was also used as precedent to strike down state laws criminalizing homosexual relationships in Lawrence v. Texas. The Lawrence decision stated that the “right to liberty under the Due Process Clause” guarantees “a realm of personal liberty that the government may not enter.” https://supreme.justia.com/cases/federal/us/539/558/#tab-opinion-1961305

The same precedents applied in Obergefell v. Hodges, the case that recognized the right to same-sex marriage. The Obergefell decision explained the rationale.

“Like choices concerning contraception, family relationships, procreation, and childrearing, decisions concerning marriage are among the most intimate that an individual can make,” and are therefore “inherent in the concept of individual autonomy” and thus protected by the Due Process Clause. Obergefell v. Hodges :: 576 U.S. ___ (2015) :: Justia US Supreme Court Center

Justice Kennedy wrote the majority opinion for Obergefell, and in the introductory statement clearly made the case for not only ‘due process’, but also for ‘equal rights before the law’ stating that:

“The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.” Obergefell v. Hodges :: 576 U.S. ___ (2015) :: Justia US Supreme Court Center

Now, Alito writing for the conservative majority rebutted these predictable charges by attempting to describe the decision as a surgical strike, and not the wholesale attack on equal rights that this decision authorizes.

Justice Alito’s dishonest guarantee….

Alito wrote in the leaked draft opinion for Dobbs, a disingenuous ‘guarantee’ that this decision would not undermine any other related rights. To quote Alito from the leaked draft:

“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.” Read Justice Alito’s initial draft abortion opinion which would overturn Roe v. Wade – POLITICO

Apparently, Justice Alito was banking on the entire legal community to be ‘asleep at the wheel,’ and fail to notice that other rights such as the right to contraception, the right to same-sex marriage, and sexual freedom, are dependent on the same Roe and Casey precedents, which hold that the due process clause protects fundamental privacy rights, and within those privacy rights reside autonomy rights to make independent and personal life decisions that no state legislature can rescind.

Mark Joseph Stern wrote for Slate that Alito’s draft opinion, “disavows the entire line of jurisprudence upon which Roe rests: the existence of ‘unenumerated rights’ that safeguard individual autonomy from state invasion.” Stern added, “Alito asserts that any such right must be ‘deeply rooted’ in the nation’s history and tradition, and access to abortion has no such roots.” Supreme Court leaked abortion draft: how the court plans to overturn Roe v. Wade. (slate.com)

To quote Alito from the leaked draft; “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.” https://www.documentcloud.org/documents/21835435-scotus-initial-draft#document/p24/a2102416

Essentially, Alito and his fellow conservatives have struck down ‘unenumerated rights’ along with Roe, and this has been a central goal of ‘originalists’ and ‘textualists.’ Such conservative forces would reduce the Constitution to a minimalist document trapped in the social mores and laws of the 16th century. All rights must be strictly identified and understood by the language and expectations of the time the Constitution was originally written and ratified. This ludicrous limitation results in the body of law being reduced to a laundry list of privilege for white, Christian, cis-gender males. Essentially, Alito and other originalists are writing the judicial version of, “no minorities need apply.”

This opinion written by Alito is a stealth attack on the 14th amendment due process and equal protection clauses. If both ‘due process’ and ‘equal protection’ rights are dependent on the ‘history and tradition’ of the Constitution at the time of its creation, then these rights will have been rendered impotent, in this limited reading of the 14th amendment, as the original writing ‘historically’ excluded women and people of color.

Harvard history professor Jill Lepore spoke to this limited reading of the 14th amendment, in The New Yorker. Her piece lays flat the absurdity and injustice of Alito substituting ‘history and tradition’ for actual jurisprudence. Quoting nineteenth-century abolitionist Sarah Grimke’s single sentence statement, Lefore offers the most stinging and succinct rebuttal on Alito’s ‘history and tradition’ justification;

“The page of history teems with woman’s wrongs.”

Lepore extended the question beyond women’s rights to the history of racial discrimination rooted in slavery to decide the rights of racial minorities? Lepore posed the question.

“Would the Court decide civil-rights cases regarding race by looking exclusively to laws and statutes written before emancipation?”

Of Course the Constitution Has Nothing to Say About Abortion | The New Yorker

Lepore pointed out that US ‘history and tradition’ does “not teem with women’s rights.” Lepore also added a final philosophical rebuttal, namely that…”to use a history of discrimination to deny people their constitutional rights is a perversion of logic and a betrayal of justice.” Of Course the Constitution Has Nothing to Say About Abortion | The New Yorker

This decision also leads to the potential ‘criminalization’ of pregnancy itself.

There are radical conservatives who herald this opinion with glee, including the more troubling aspects which include the potential ‘criminalization’ of pregnancy itself. Author Michele Goodwin dubbed “the creeping criminalization of pregnancy,” in her book Policing the Womb. Policing the Womb: Invisible Women and the Criminalization of Motherhood a book by Michele Goodwin (bookshop.org)  Goodwin discusses in detail how the reversal of Roe and Casey, could potentially criminalize women who suffer the pain of stillbirths or miscarriages. Every woman with a history of miscarriages, will have to worry about pending murder charges, even if there’s a medical history which documents the high probability of miscarriage due to conditions such as endometriosis. Women lacking health insurance or who are forced to work during difficult pregnancies could lose their child—and face murder charges. These issues will affect low-income women and women of color disproportionately.

Amnesty International defines the ‘criminalization of pregnancy’ as;

“The process of attaching punishments or penalties to women for actions that are interpreted as harmful to their own pregnancies. This includes laws that punish actions during pregnancy that would not otherwise be made criminal or punishable. It also refers to other laws not specific to pregnancy, but which are either applied in a discriminatory way against pregnant women and/or have a disproportionate impact on pregnant women which can in practice work as de facto criminalization.” USA: Criminalizing pregnancy: policing pregnant women who use drugs in the USA –  Amnesty International

Essentially, reversing both Roe and Casey, not only potentially criminalizes pregnancy; it would leave many women in a constant state of anxiety, regarding even wanted pregnancies. Would a woman’s type of work potentially pose a danger to a developing fetus? Would we go back to the days when women were forbidden to smoke, drink, or work outside the home during a pregnancy? Additionally, will infertile couples be charged with manslaughter when multiple embryos are discarded? Will stem cell research be ended and scientists criminally charged? Will women requiring an abortion to save their lives, be left to die in our maternity suites?

Real world ramifications include a 14th amendment sacrificed to states’ rights trope….

While this sounds like hyperbole, these possible outcomes are very real, especially when viewed through the judicial lens of states’ rights. Alito and fellow conservatives consider this dangerous ruling a case of simply returning the issue of abortion to each state legislature. This has been the mantra idolized by conservatives since the injustice of Jim Crow.

Now this neo-confederate philosophy has been more recently popularized by conservative brats like Ben Shapiro, who wrongfully claim this SCOTUS decision “returns the issue of abortion to the state legislatures, where it originally resided, and the fact is that the Constitution of the United States has nothing to say about abortion.” Ben Shapiro Breaks Down LEAKED Supreme Court Draft Decision On ABORTION – YouTube

Shapiro further pontificated that the Roe decision was crafted,

…”on the basis of no precedents, on the basis of nothing in the Constitutional texts, on the basis of no real logic, decided to simply usurp the issue and then top-down a bunch of non-elected judges decided that they were going to decide the issue for all of America…” Ben Shapiro Breaks Down LEAKED Supreme Court Draft Decision On ABORTION – YouTube

Now, to be fair, Shapiro was correct in one aspect, namely that the SCOTUS overruled the totality of state level legislatures with the Roe and Casey decisions. Shapiro conveniently omitted some history regarding state laws that denied equal rights to women and the LGBTQ communities. Prior to 1973, state legislatures throughout the United States passed laws that not only criminalized abortion, but also criminalized birth control, interracial marriage, gay sexual relations, child rearing practices and educational choices. Essentially, state legislatures criminalized being a woman, or being gay. The ‘equal protection’ clause of the 14th amendment was trampled by the ‘states rights’ argument. Keep in mind that the same ‘states’ rights argument provided the philosophical underpinnings for the Confederacy, and later for Jim Crow.

Alito wrote the “Opinion of the Court” where he blatantly stated the following:

“We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473

This statement represents the court abdicating their responsibility to adjudicate. Alito wasn’t sending a decision back due to technical errors. He sent the case and the issue back to the states, literally declaring that the court had no right of judicial review over the activity of state-level legislatures. This irresponsible action is unfathomable in its criminal negligence. You would think that Alito would be satisfied with his handiwork, but this was not the case. Alito arrogantly claimed that this decision was eradicating another unjust Supreme Court precedent on the same scope as Dred Scott v. Sandford and Plessy v. Ferguson.

With the arrogance of the comically infamous ‘church-lady’ popularized by Dana Garvey on Saturday Night Live; Alito claims the mantle of civil rights savior with this decision. Adam Serwer wrote in The Atlantic that “Alito claims to be sweeping away one of the great unjust Supreme Court precedents, such as Dred Scott v. Sandford, which held that black people had no rights white men were bound to respect, or Plessy v. Ferguson, which upheld racial segregation.” Alito’s Plan to Repeal Roe—and Other 20th Century Civil Rights – The Atlantic

Serwer pointed out Alito’s galling hypocrisy, alleging that Alito used the logic of the Plessy case to justify the states’ rights argument, as long as each individual state legislature deemed the statute ‘reasonable.’ https://supreme.justia.com/cases/federal/us/163/537/#tab-opinion-1917401 Alito’s argument allows for state legislatures to decide what is ‘reasonable,’ regardless of whether such statutes violate the equal protection clause of the 14th amendment. This judicial permission slip from the Supreme Court would grant state legislatures the right to discriminate with impunity, even as Alito wrote, …”when the laws at issue concern matters of great social significance and moral substance.”

Georgetown University Law Professor, Aderson Francois explained to Serwer…

“Plessy is, at its absolute core, a states’-rights case, in which the Court envisioned a notion of federalism so weak, so toothless, so bereft of substance that the federal government had no legitimate role in protecting Black people from states imposing racial segregation upon them. This draft does the same thing: It envisions a notion of federalism so weak, so toothless, so bereft of substance that the federal government has no legitimate role in protecting women from states imposing forced births upon them.” Alito’s Plan to Repeal Roe—and Other 20th Century Civil Rights – The Atlantic

The implications of this illegitimate decision….

The implications of this leaked decision are vast and dire. Contrary to Alito’s specious claim that this decision only concerns itself with abortion; this decision is the first trial balloon meant to nullify all unenumerated rights. https://www.theatlantic.com/ideas/archive/2021/12/what-roe-could-take-down-it/620892/

Law Professor Stephen Vladeck, at the University of Texas at Austin explained further.

“The majority can believe that it’s only eviscerating a right to abortion in this draft, but the means by which it does so would open the door to similar attacks on other unenumerated rights, both directly, by attacking the underpinnings of those doctrines, and indirectly, by setting a precedent for such an attack.”  Alito’s Plan to Repeal Roe—and Other 20th Century Civil Rights – The Atlantic

In Conclusion…

The pending leaked decision of the Dobbs case promises to end any abortion rights at the federal level. Leaked documents have revealed that SCOTUS plans to transfer power back to individual state legislatures, by abdicating any role of federal judicial review. Justice Alito wrote the majority opinion, which can only be called an endearing opine to the days of the Confederacy and later Jim Crow, where state legislatures ruled supreme, routinely violating the very human rights espoused in the Constitution with impunity. The human rights declared so piously in the Constitution are sacrificed on the altar of ‘states’ rights.’

It is ironic that while Trump lost the 2020 election, he won the legal battle dedicated to eradicating the 14th amendment, by rendering the equal protection and due process clauses virtually impotent. Alito and his stooges have elevated the concepts of ‘history and tradition’ above actual legitimate jurisprudence. This leaked decision will be the first of many illegitimate attacks on unenumerated rights based on that same 14th amendment, courtesy of the Constitutional ‘originalists’ and ‘textualists.’

Those who call themselves ‘originalists’ or ‘textualists’ would reduce the Constitution to an inconvenient laundry list, as opposed to an ethically bound statement of legal principle. These originalists/textualists are conservators of the unjust status quo. Their love of ‘states’ rights’ stems from the philosophical school of thought that justified the Confederacy, slavery, and Jim Crow. They are the handmaidens of unbridled corporate power, and they use the violence of white supremacy, misogyny, homophobia, and economic inequality, to continue state sponsored oppression on the behalf of that same unbridled corporate power.

Alito and fellow conservatives have prostituted their professional credibility with this academically unsound and unjust decision. They never heard the words of a true justice—namely Ruth Bader Ginsburg when she eloquently stated her vision for a truly just legal system.

“I didn’t change the Constitution; the equality principle was there from the start. I just was an advocate for seeing its full realization.” https://www.rd.com/article/ruth-bader-ginsberg-quotes/

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Jeanine Molloff is a veteran urban educator specializing in communications disorders. She moonlights as a political commentator on various issues including civil liberties in an age of ‘terrorism’, ecological justice, collateral damage in war zones, economic equity and education. Jeanine has published with Huffington Post, OpEdNews, FireDogLake, Counterpunch and Huffington Post Union of Bloggers. In an era of state and corporate sanctioned censorship; she believes that journalism which demands answers to the tough questions is the last remaining bulwark of democracy. Now more than ever we need the likes of I.F. Stone over the insipid voices of celebrity infotainment. Jeanine works and lives in St. Louis, Missouri.

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