SCOTUS’s Extremism Is Not Based in Precedent

In the end, the actual opinion that destroyed the right to abortion, Dobbs v. Jackson wasn’t all that different from the leaked opinion from seven weeks ago. Moreover, we all knew it was coming—we were always going to lose Roe v Wade once Trump got his three justices on the court, forming a hyper-conservative supermajority with Chief Justice Roberts and Justices Sam Alito and Clarence Thomas. That doesn’t make it any less of a gut punch, however. 

Dobbs makes no pretense that this Court’s conservatives care one whit about the safety of pregnant people or of children after they exit the womb. Instead, it’s a trip through what the law was like 150 years ago, when we knew far less then than we know now, about pregnancy and fetal development. 

It’s a smug sneer, mocking that the dissent “has much to say about the effects of pregnancy on women, the burdens of motherhood, and the difficulties faced by poor women.” To the extent the majority opinion addresses these things, it’s to discard them entirely by straight-up lying. 

Alito brags that leave for pregnancy and childbirth is now guaranteed by law in many cases, citing the Family and Medical Leave Act. First, that leave is unpaid, putting people on the edge of poverty deeper into poverty if they exercise their right to take the leave. Next, that leave only applies to companies with more than 50 employees, and it only covers 12 weeks. So, good luck if you work at a small company and have any health issues during your pregnancy. 

Alito also asserts that costs associated with pregnancy are covered by insurance or government assistance. This is also wildly untrue, particularly in Mississippi, the source of the ban in this case. Mississippi has refused the Medicaid expansion, despite the fact that the expansion lowers rates of both maternal and infant mortality, particularly by lengthening the availability of postpartum care. In Mississippi, an estimated 86% of maternal deaths occur postpartum. Mississippi’s refusal to accept the expansion particularly harms Black people, who have nearly three times the risk of dying from pregnancy-related causes than their white counterparts. 

OK, wait. It’s actually weirder than that. Alito isn’t bragging that these things are true as such. Rather, he’s reciting what anti-choice legislators say they believe when they pass their anti-choice laws, throwing in a few footnotes to help things along. 

The majority opinion also makes clear that facts no longer matter. Indeed, as long as a legislature passes it or enough rabid anti-choicers think it, it is truth now. Take, for example, fetal viability, the line set by Roe v. Wade as to when abortions were constitutionally protected. It’s pure fantasy that fetal viability is some massively unknowable thing rather than a well-settled piece of medical information—babies born before 23 weeks, a full eight weeks after the ban at issue in Dobbs. The youngest pre-term baby ever to survive was born at 21 weeks. Simply because anti-abortion activists have declared they sincerely believe otherwise should not form the basis of a legal opinion. 

It cannot be stressed enough that this is not how judicial decision-making is supposed to work.

Nor, to be clear, is Thomas’s concurrence anything even remotely approaching judicial decision-making. Instead, it’s a howl against the very notion of privacy, a painfully ironic stance from a man who believes that his wife’s insurrectionist tendencies are none of our business. 

It’s nearly impossible to overstate what a sore winner Thomas is here. He’s not just content to take a victory lap over undoing a core reproductive health right for half the population. Instead, he uses his concurrence to urge the Court to take up future cases to destroy the very foundations of privacy in America—particularly sexual privacy.

Thomas’s hatred for the idea that the Constitution contains within it a right to privacy is not a new loathing. Conservative legal commentators have been whining about this since Griswold v. Connecticut was decided in 1965. Factually, Griswold held that married couples had a constitutional right to access contraception. The decision was much bigger than that, though, as it was the first time the Supreme Court articulated a right to privacy.

The problem with the right to privacy, as far as conservatives are concerned, is that privacy begets more privacy and strengthens the rights of people to conduct themselves in their own homes as they see fit. Without Griswold, you have no Roe. Without Roe, you have no Lawrence v. Texas (which declared laws prohibiting same-sex sodomy unconstitutional). Without Lawrence, you have no Obergefell v. Hodges, which found a constitutional right to same-sex marriage. 

Thomas is not subtle about the fact he wants all of these gone, stating the Court should reconsider Griswold, Lawrence, and Obergefell. Oh wait. He doesn’t want those cases reconsidered as such, because he already believes that those decisions, and any similar ones, are “demonstrably erroneous.” 

This worldview gets dressed up by Thomas as something value-neutral, simply about ensuring that we remain faithful to the Constitution. That’s undermined, of course, by the fact that the conservatives on the Court, particularly Thomas, Alito, and Barrett, are all members of a faith—Catholicism—that actively opposes birth control, abortion, and same-sex marriage. It’s absurd to believe that Thomas’s worldview comes from a place of honesty rather than just wanting to impose his will on everyone else. 

It’s tough to read both Alito’s majority opinion and Thomas’s concurrence, both of which evince no care whatsoever for the real people at the heart of it, and contrast that to the tender loving care shown to guns in New York State Rifle and Pistol v. Bruen. That case functionally gutted states’ abilities to pass laws restricting gun ownership. In Alito’s concurrence in that case, he sneered at the dissent for daring to recount the human toll of mass shootings:

“Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.”

This garbage could have been written by an NRA lobbyist. It’s definitely not legal reasoning.

It’s difficult to figure out how to move on from Dobbs. Legislatively, the Democrats are somewhat stuck, as neither Sens. Joe Manchin or Kyrsten Sinema seem inclined to kill the filibuster, the necessary precursor to the best solution to this problem—packing the court. Instead, it’s likely more fruitful to focus on executive action.

In early June,  Senator Elizabeth Warren, along with 24 other senators, sent a letter to President Biden outlining actions the administration could take. Among other things, the letter urged Biden to explore ways to help cover travel and other support for people seeking abortion care outside their home state. The senators also asked Biden to create the position of a reproductive health ombudsman at the Department of Health and Human Services. (HHS). That ombudsman would have the ability to collect and analyze data about insurance coverage, connect people with Title X funding and abortion funds, and give the public information on self-managed medication abortions. The letter also asked the administration to clarify and increase protections of health and location data. Data issues have come under increased scrutiny post-Dobbs, as apps that track periods could be used to surveil people in states where abortion is outlawed. 

Along with Minnesota Democrat Sen. Tina Smith, Warren called on Biden to declare a public health emergency to protect abortion access. As was the case with COVID-19, doing so would allow the federal government to use its authority to unlock resources to increase access. Warren has also asked the administration to explore how to make abortions available on federal lands in states that prohibit the procedure. Writing in The Nation, justice correspondent Elie Mystal explained this at more length:

“Biden could make abortion services available at federal installations. Doctors could then lease the space from the US government out of their own pocket; this would protect them from draconian state laws as well as the Hyde Amendment, which prohibits federal funding of abortion services.”

The Biden administration had previously moved to widen access to mifepristone, a drug used in medication abortions. In December 2021, the FDA permanently removed the requirement that medication abortion drugs be administered in person, which allows patients to receive the drugs by mail. After the issuance of the Dobbs opinion, Attorney General Merrick Garland released a statement saying that states can’t ban mifepristone simply because they disagree with the FDA’s assessment about the safety of the drug. 

All of these things are a good start, but the real issue is a Supreme Court that no longer believes in adherence to the law and is just acting to further the pet projects of conservatives. Without fixing the Court—expanding the court, imposing term limits on justices, creating real, enforceable ethics codes for the justices—all of our other solutions are just nibbling around the edges.