Litman: Scholars will deride Supreme Court’s Dobbs opinion

The Supreme Court decision in Dobbs v. Jackson Women’s Health Organization is a double disaster. First and foremost, the Roe vs. Wade overthrow will have a devastating impact on the lives of Americans, especially women of childbearing age. Second, it is sure to be belittled – even ridiculed – by legal scholars, and will result in a tarnishing of the court’s already fragile public image.

As many observers have noted since the draft decision was leaked, a glaring problem with Judge Samuel A. Alito Jr.’s opinion is that abortion law is singled out as a constitutional stepchild based on the fact that abortion was not protected when it was created, and indeed it has sometimes been criminalized.

It is like shooting fish in a barrel to point out that this historical analysis is inconsistent with the court’s recognition of other unenumerated and previously criminalized rights that the report claims it has do not jeopardize – for example, same-sex and interracial marriages. the use of contraceptives and engaging in homosexual sex.

If abortion is a constitutional orphan because previous generations of Americans criminalized it, how could the court continue to recognize any of these other rights?

Inevitably, Alito’s argument has been slammed from left and right. The joint dissent of Justices Stephen G. Breyer, Elena Kagan and Sonia Sotomayor is having a big day deriding Alito’s incoherent handling of unenumerated rights.

And from his own side, the far-right flank of legal (and American) thought, Judge Clarence Thomas’ consensus takes the obvious next step: The court should now reconsider — read: overturn — the entire line of unenumerated jurisprudence.

Comparing the leaked draft decision to the final product, we can see the one argument that Alito and the rest of the majority have put forward to try to support the claim that abortion has been drawn from the court’s case law to unenumerated rights can be brought down without bringing the whole construction down. It reads as follows: “What is special about abortion,” writes Alito, is that it results in the termination of a “potential life.”

And it does. This is the core difficulty that makes the abortion doctrine so vexing – both the individual and society are at stake. But Alito’s leap from this truism to the conclusion that abortion rights do not deserve constitutional protection rests on an embarrassing flaw in legal reasoning. It is a nonsense to say that the existence of a governmental or societal interest in fetal life means that there is no individual interest in whether a fetus should go to term. A conflicting state interest says nothing about the existence of an individual right.

It is another profound distortion to say, as does Dobbs’ opinion, that Roe and the later Planned Parenthood vs. Casey decision inadequately protected “potential life.” Both decisions placed significant—many would argue, excessive—weight on fetal protection measures. Therefore, over the years, the court has upheld a long list of restrictions on abortion rights, such as spousal notifications and waiting periods.

The real point of the analyzes in Roe and Casey was to draw the line between acceptable and unacceptable “burdens” in the decision to continue or terminate a pregnancy. Alito sneers at Casey’s admittedly amorphous notion of “undue burden,” but the task of clarifying what is or is not unreasonable when weakening an individual right is a commonplace of constitutional law, and Casey’s framework worked. It created a stable situation until President Trump’s court officials put stars in the eyes of lawmakers in anti-abortion states, who began to pose extreme challenges to Roe.

Moreover, Dobbs’ insistence that Roe forbade states to “consider the destruction of ‘potential life’ as a matter of any importance” is flat out wrong. Instead, Dobbs simply refuses to see either of the two critical interests in the abortion issue as significant. As of Friday, even the most severe restriction on the right to an abortion must be upheld “when there are reasonable grounds on which the legislature could have assumed that doing so would serve legitimate interests of the state.”

“Rational basis” is the easiest standard to meet to deny a right. It equates women’s control over their own bodies with the right to play pool at 4 a.m

Judge Brett M. Kavanaugh’s separate endorsement of the Dobbs decision deserves special mention for his reckless assurance that “the Court’s decision today properly restores the Court to a position of judicial neutrality on the issue of abortion.”

This is Argle Bargle, as Kavanaugh’s idol Antonin Scalia might put it. The disappearance of nearly 50 years of basic constitutional protections for women and the sudden empowerment of red states to compete to see which of them can enact the most draconian restrictions, including making abortion a crime, is not an act of judicial neutrality.

In the end, the Dobbs report offers nothing remotely convincing for his finding that Roe was “enormously wrong.”

The Dobbs dissidents’ sober assessment is the most plausible explanation for the court’s tragic aberration: the reversal of a long-recognized fundamental right rests “on nothing other than the new views of new judges. The majority voted roe and Casey for one reason: because it has always despised them and now has the votes to reject them.”

@HarryLitman Litman: Scholars will deride Supreme Court’s Dobbs opinion

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