On June 24, 2022, in Dobbs v. Jackson Women’s Health Organization, the Supreme Court, in an unprecedented power grab, eviscerated a fundamental, constitutional right. This decision will be judged by history as harshly as the decades have condemned Dred Scott and Korematsu. The willingness of the far-right majority to strip women of the right to abortion demonstrates contempt for women’s rights, bodily autonomy, history, reason and legal precedent. The practice of abortion, contrary to Justice Samuel Alito’s opinion is, in fact, deeply rooted in our history. At the time of the founding, state laws protected access to abortion until the point of quickening. As the world has long known the Court, in the landmark ruling in 1973 in Roe v. Wade, held that women possess a constitutional right to govern their own reproductive organs. Justice Alito’s lame effort to undercut the right of abortion because it is not enumerated in the Constitution, is of no moment.
Indeed, the Court’s acknowledgment in Roe of an unenumerated fundamental right reflects a century of rulings that have identified various unenumerated rights that enjoy the same status as those articulated in the Constitution. The Court, for example, has identified as unenumerated constitutional rights, freedom of association, a right to travel, the right of parents to raise their children in accord with their own values, a right to contraceptives, a right to interracial marriage, a right of individuals to keep and bear arms for their self-defense, a right to same-sex marriage and a right to privacy, among others. The Court’s ruling in Roe has been affirmed numerous times by Justices nominated by both Republican and Democratic presidents, conservative and liberal alike, and it has been considered settled law. The ruling in Dobbs leaves our nation to wonder: Which rights, if any, are secure?
A radical majority on the Court, including members who, during their confirmation hearings, left no doubt that they considered Roe to be settled law, has engaged in a raw exercise of power that undermines its legitimacy. It betrays Alexander Hamilton’s description of the judiciary as the “least dangerous branch.”
The tragic impact of the Court’s ruling in Dobbs was crisply summarized by the dissenting Justices—Stephen Breyer, Elena Kagan and Sonia Sotomayor. “It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring pregnancy to term, even at the steepest personal and familial costs. An abortion restriction, the majority holds, is permissible whenever rational, the lowest level of scrutiny known to the law. And because, as the Court has often stated protecting fetal life is rational, States will feel free to enact all manner of restrictions.”
Dobbs has relegated women to second-class citizenship. Their liberty is subject to the arbitrary whims, wayward values and deeply engrained sexism of those who serve in state legislatures. The Alturas Institute stands with those citizens—women and men—who will carry the torch--at the polls, in the legislative arena and in the massive marches and protests that must come--to regain the power and fundamental right of women to make their own reproductive choices.