In remarkably swift fashion—within a few short years—Americans have been given a front-row seat into the wholesale corruption of each of the three branches of our republic, all courtesy of the Republican Party. We had a presidency that transformed the country into a pathetic laughingstock on the world stage and proved dismally incompetent at and utterly indifferent toward performing its basic domestic responsibility of protecting the health and lives of the American people.
We have seen half of our federal legislative branch now transformed into a rabid, violence-stoking cult bent on preserving the degenerate legacy of that same president.
And now, at long last, we see the last pillar of our constitutional system, our “independent” judiciary, succumbing to the same corruption—capitulating so completely to this ideology that a bedrock constitutional right that affects one-half of the American population directly, and indirectly affects all Americans, is now on the verge of being eliminated.
But as the defeat of Donald Trump has reminded us, bad presidents can be thrown out of office. And the conservative rot that permeates our legislatures can, in theory, at least, be reversed. The fall of the federal judiciary to this right-wing poison, however, is a blow like no other. Unelected and appointed for life, federal judges possess a unique status in our system, one that now threatens to wield its destructive, malevolent forces against us, despite all the voting and organizing that American citizens can muster to oppose it.
Kimberly Wehle is a professor of law at the University of Baltimore. In an article for the Atlantic, she takes on the disconcerting task of explaining just how significantly the Supreme Court’s looming reversal of Roe v. Wade could impact many other rights that the vast majority of Americans now take for granted—rights such as choosing who they marry, who they choose to have sex with, or how they raise children.
In its zealous effort to remake an American society it clearly despises, the reactionary, “conservative” majority that now dominates the U.S. Supreme Court (and several Circuit Courts of Appeal) has relied chiefly on the fact that the country’s founders could not, as a practical matter, predict all of the individual rights that the Constitution could possibly anticipate.
Following an opportunistic approach of ignoring prior precedents and cases to reverse those rulings it no longer likes, the focus of right-wing jurisprudence for the past fifty-odd years has been on whittling down or eliminating perceived deviations from the Constitution’s original text, all in the name of a conservative-tinged “originalism.” Not coincidentally, that has diminished the federal government’s power to provide for the American people in matters of environmental, labor, and social policies, for example—none of which are even mentioned in the Constitution.
Both the Roe decision and its progenitor, Griswold v. Connecticut (which found a liberty interest in the right of married couples to use contraception) are premised on an assumption that the Constitution affords a clear, if unwritten, right of privacy that extends to private, personal decisions such as the decision whether to reproduce.
This fundamental interpretation—that the Constitution can mean something it does not explicitly say—is anathema to conservatives, not because it violates some sacred fealty to James Madison, but because it threatens their right to impose their beliefs on others. In some cases, they feel they have a right to impose their theocratic and patriarchal beliefs (in the case of Amy Coney Barrett, for example). In others, they feel they have a right to impose their racial biases (in the case of the self-loathing Justice Clarence Thomas or Chief Justice John Roberts, who like his predecessor, William Rehnquist, premised his early legal career on denying Blacks the vote). Still others simply desire to inflict their pro-corporate, anti-labor sensibilities upon us (in the case of the virulently anti-union Justice Samuel Alito, for example). All have their unique ax to grind, but the key issue uniting all conservatives is control, and ultimately the domination of others.
The 1960’s era Supreme Court that decided Griswold (and later, Roe) found a right to privacy implicit in multiple Constitutional amendments, including those we call the Bill of Rights, in the private determinations that inform freedom from search and seizure, freedom of speech and assembly, and of due process, for example. What this ultra-conservative 2021 Court appears intent on doing in the Dobbs case currently under consideration is to repudiate the very idea that a liberty interest can be found in anything but the Constitution’s explicit text. Once it finds no inherent Constitutional right for women to terminate their pregnancies, it can then wash its own bloody hands of the issue by deeming it a matter to be decided by individual states.
But the Court already knows full well what the states will do, because the need to take peoples’ fundamental reproductive decisions out of individual states’ hands was the entire reason for the Roe and Griswold decisions in the first place.
The embarrassment of having to overrule one of its own decisions in order to accomplish this is made much easier by the fact that, since the 1970s, the right has effectively and intentionally spun its own brand of jurisprudence, often in the criminal law context but also in the field of administrative law, to justify limiting the powers of the federal government to satisfy the needs of their corporate supporters. But as Wehle points out, by following the general conservative template in attacking the Roe decision in this manner, the Court can now justify further efforts to undermine and reshape American society to conform to its warped vision of how things ought to be:
The thing is, the dangers of dispensing with Roe go far beyond abortion, because the legal logic that threatens this particular right could quite easily extend to others, inviting states to try out new laws that regulate choices about whom to marry, whom to be intimate with, what contraception to use, and how to rear one’s own children.
Wehle notes that on multiple prior occasions dating back to the 1920s, the Court has used the same rationale as in Roe to find protected liberty rights allowing people, for example, to marry someone of a different race, to be protected from forced sterilization, or to have sex with someone of the same gender. The Court had also previously found liberty rights to be implied in people’s decision whether or not to educate their children in public schools. In short, there are many things that the Constitution did not explicitly provide for that are implicit in its language.
Since Clarence Thomas happens to be married to a white woman—which is to say, since he would personally be affected—we can probably rule out the prospect of the Court invalidating his marriage on the grounds of miscegenation … at least until he retires. But the point here is that the instances when the Court found such an interest all stemmed from arbitrary actions at the state level, and typically those actions, all deemed unconstitutional, were rooted in some type of prejudice or bias, be it anti-gay, anti-Black, or anti-criminal-defendant. (The Skinner case cited above involved the Court finding that Oklahoma’s Criminal Sterilization Act—requiring the sterilization of habitual offenders in crimes involving “moral turpitude.”)
In other words, these questionable laws were spawned by the same inflammatory hatreds that are now being churned up on the right against transgender people, for example.
Wehle’s point is that denying that the Constitution implicitly finds these types of laws abhorrent and thereby relegating them to the states—which is exactly what the Court intends on doing by overturning Roe—will mean essentially declaring open season on oppressed or minority populations by any state whose right-wing legislature finds it politically expedient or “popular” to pass laws restricting their rights.
As Wehle observes:
Thus, to say that Roe is a one-off constitutional blunder, built on a flimsy foundation, while other rights are grounded in concrete, is a myth—and a dangerous one. Nothing in the Constitution says anything to specifically protect couples’ ability to choose to have sex, use contraception, get married, decide how to educate their children, refuse bodily inspection or medical treatments, and, yes, terminate a pregnancy. From a legal perspective, if Roe falls, it’s hard to see what else will still stand.
As Wehle notes, the right will protest that abortion is a “special case” since it involves the rights of a “human life” (in this case, an amalgamation of human cells with no viability outside the woman’s body), but as she explains, that is simply a dodge: “[S]aying so does not mean that critics of other privacy-based rights could not find their own reasons why those rights, too, must be balanced against some other competing interest.”
One has only to look at the behavior of the Republican Party in its modern form to see how easily a “human life” of a certain type of complexion or sexual orientation can be devalued. In Republican parlance, some lives quite simply are more valued than others, depending on whose biases are being considered. And laws discriminating against, or even effectively nullifying the rights of those groups, LGBTQ people in particular, seem to be the perennial targets.
But some might ask, what about the Equal Protection Clause? Doesn’t that prevent such discrimination? The short answer is that this right-wing Supreme Court has already begun to dismantle the idea of “equal protection” by finding that such protections can, for example, interfere with “religious freedom.” And although the Court only a few years ago found same-sex marriages protected by due process and the Equal Protection clause, the majority that decided that opinion no longer exists, having been replaced by a majority actively hostile to it. If the Court is as dismissive and contemptuous of prior precedent as it now evinces toward Roe, how long does anyone expect that ruling to last?
So as if it weren’t already serious enough, the Court’s eagerness to overthrow Roe and consign all American women to the status of second-class citizens has implications that go well beyond whether abortion can be criminalized by the states. The Republican Party’s decades-long effort to gerrymander itself into permanent minority rule suggests we may soon have the likes of Marjorie Taylor Greene, Paul Gosar, and Lauren Boebert setting the country’s legislative agenda, continually promoting legislative assaults on everyone they consider inferior and undeserving of representation, most obviously people of color or the entire LGBTQ population. We can only expect the same pattern to be repeated by Republicans who control their own state legislatures. The Supreme Court has just telegraphed its permission for them to do so.
It shouldn’t be overlooked that the majority of Americans do not support overruling Roe, and they certainly won’t support it when the consequences become clearer. But as long as the Supreme Court remains in its current, rabid, and radical form, and without serious legislative pushback, we’re likely to face changes to our society that go well beyond the issue of abortion rights. We’re already entering into Black Mirror or Twilight Zone territory, with delusional, armed right-wing paramilitaries literally hunting down our elected officials or threatening them with violence and harassment for simply doing their job.
We have a former president operating as a weird kind of malevolent, disruptive presence in absentia. And we have a population so deluded by social media that simply getting people vaccinated against a pandemic has become a divisive “political” issue.
Absent some serious, radical improvements to our institutions, it’s clear that overruling Roe will have consequences that permeate and intrude upon other aspects of our lives—just like the right to make reproductive decisions—that many of us now take for granted. For the right, overruling Roe is not an end, but a beginning.