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The shoe that’s been waiting to drop since May 2nd when the draft opinion in the Dobbs v. Jackson Women’s Health case was leaked has finally plummeted. Today, the Supreme Court issued its decision in the case formally overturning the fundamental rights enshrined in Roe v. Wade and Planned Parenthood v. Casey.
The decision states, “We hold that Roe and Casey must be overruled,” and “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Truly chilling words.
To be fair, the writing’s been on the wall for the end of reproductive freedom for a while — at the very least by the death by a thousand cuts. And there’s lots of blame to go around. Obviously the bulk of it belongs squarely on the shoulders of the Supreme Court majority and the Senate machinations which gave them a super majority. Or Susan Collins’s painfully naive acceptance of SCOTUS nominees’ testimony that Roe was established law. Then there’s Ruth Bader Ginsburg’s unwillingness to retire during Obama’s presidency and when Democrats had a firm control of the Senate. Sure, she’s famous, but didn’t live forever. Democrats in Congress also repeatedly took the path of least resistance, forgoing the opportunity to enshrine the increasingly popular rights in law.
And now, five ideologues with a lifetime appointment have, in a single move, undone 50 years of rights.
Access to abortion care is now virtually obsolete in 22 states that have trigger laws or constitutional amendments that severely limit reproductive freedom after six weeks, before many people are even aware they’re pregnant. Another four states are now likely to follow suit.
As expected, the decision, penned by Samuel Alito, is a scorched earth affair. The majority of the Court is firmly signaling — especially given the recent decision in Bruen — they’ll do whatever they want. There’s no coherent legal theory holding the far right together — it’s a hodgepodge of half-baked history lesson and cherry picking awful sources to cobble together the political result they want.
Now we’re through the looking glass, and no established precedent is safe. As noted in the dissent, the Dobbs decision creates parallels between both Lawrence v. Texas and Obergefell v. Hodges as similar to Roe and Casey, as the rights protected in those cases are not “deeply rooted in history.” School desegregation and First Amendment protections are also vulnerable.
It’s abundantly clear that the Supreme Court is wildly out of line with American values. If only there was a clear plan to deal with that reality.
UPDATE: As we delve deeper into the decision we’ll update the story with relevant insights. Amongst the most noteworthy is Justice Thomas’s solo concurrence, which explicitly calls out contraception, marriage equality and same sex relationship and all substantive due process rights.
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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).
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