“The pendulum goes too far to the right, it’s going to swing back. The same thing too far to the left.”— Ruth Bader Ginsburg
The Supreme Court just finished a wild term, capping it with the announcement that it would overturn Roe v. Wade. This touched off protests, rallies, and a social media dumpster fire unlike anything in recent memory. The decision also prompted a flurry of legislative changes which banned abortion in numerous states.
In Dobbs v. Jackson Women’s Health, the Court determined that women do not have a right to an abortion. This, of course, overturned the precedents established in Roe, and later in Planned Parenthood v. Casey.
Considering this ruling and the makeup of the Supreme Court, Americans should give serious pause to what their rights are. Of course, this should always be a question for Americans to consider, but the issue seems more salient now.
What are my rights?
American rights are both clearly defined and nebulous. How can this be? Well, it’s complicated. The United States Constitution, in addition to establishing how the federal government operates, lists the rights we have. For instance, the First Amendment guarantees freedom of speech. The government cannot punish someone for articulating their thoughts on a matter, even if the speech is offensive. The text of the Constitution establishes other specifically defined rights and limits the government’s authority over the people.
But are those the only rights citizens possess? Are we limited in our rights? Not exactly. The Ninth Amendment of the Constitution states,
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Of course, scholars and lawyers have different interpretations of this, but many agree that it establishes the idea that more rights exist than what are explicitly mentioned in the Constitution.
Other aspects of the Constitution reinforce the idea that citizens have far more rights than what the Constitution lists. The Fifth and Fourteenth Amendments guarantee that the federal and state governments cannot deprive a person of “life, liberty, or property, without due process of law.” What does that word ‘liberty’ mean? At its core, it is the freedom which we enjoy. But the freedom to do what?
Traditionally, the courts have determined these amendments create substantive due process, which protects citizens from arbitrary inference in daily life. Essentially, if the government wishes to regulate or outright ban an activity, it must have a compelling interest.
If Congress passed a law which established a nationwide curfew of 9:00 pm, would this legislation violate the Constitution? Nothing explicitly guarantees citizens the right to stay out all night. But this would definitely violate substantive due process rights. What reason would the government have to establish a curfew? That law would violate the ‘liberty’ guaranteed by the Fifth and Fourteenth Amendments.
Additionally, some rights are more important than others. The Supreme Court recognizes these as ‘fundamental rights,’ those deserving of such protection that the government cannot violate these without the most compelling reasons (see: strict scrutiny). These are the rights listed in the Constitution along with a few other unenumerated rights, such as marriage, privacy, or unimpeded interstate travel.
And what about about the right to choose an abortion? In Roe v. Wade, the Court ruled that women could choose to have an abortion under the privacy and substantive due process rights implied by several Constitutional amendments (including the Ninth and Fourteenth Amendments). Case closed, then. Right?
A competing viewpoint
The concept of substantive due process rights and the Ninth Amendment above has been the interpretation of the Constitution held by many jurists, but it’s not the only one. A more conservative approach examines the Constitution as protecting only the rights written in the document. This approach contends that the intention of the people who wrote the Constitution and subsequent amendments holds more weight than contemporary values. This perspective is known as the ‘originalist’ doctrine.
Originalists have also critiqued the idea of substantive due process rights, claiming the term ‘liberty’ in the Fifth and Fourteenth Amendments acts as a truism with no practical value. In this concept, federal courts overreach every time they use substantive due process to grant rights. According to that interpretation of the Constitution, the federal courts are preventing individual states from exercising their prerogative to govern as they see fit.
The ruling in Dobbs represents an example of the originalist model. The Supreme Court noted that abortion is not a subject broached in the Constitution, nor does the term ‘liberty’ provide a right to an abortion. This does not mean that states must ban abortions or regulate them. The Court is not dictating whether abortions are inherently good or bad, but merely that states can establish their own preferred laws about the matter.
The Tenth Amendment provides states the authority to legislate on topics not specifically delegated to the federal government. The originalist perspective maintains that the strict interpretation of the Constitution gives states and their people the most sovereignty possible, permitting them to create policies they believe best for their region. If people don’t like the policies, they have the ability to replace their government.
Under this political theory, government officials would operate in a manner consistent with the wishes of the public, lest they be removed from office. This reinforces the authority of people to dictate public policy. The will of the people should be paramount and federal courts should not try to dictate what a state can and cannot do beyond what lies within the Constitution.
Did the Court make the right decision?
The answer to this question depends on two key questions:
1. How should the Constitution be interpreted?
2. Where does life begin?
Should the nation approach the interpretation of the Constitution in a manner which adheres to the original meaning of the text, or should it see the Constitution as a ‘living document,’ evolving with passing generations?
Both sides present solid arguments, but I would argue for somewhere in between. One of the compelling points for an originalist position is the fact that the men who wrote the Constitution created a mechanism (in Article V) to amend the document, we need not reinterpret the text. If Americans see something wrong with the Constitution, they should push elected officials for an amendment.
Again, the originalists see their position as ultimately best serving the people, due to the fact that policy changes would need to come through legislation rather than acts of the courts.
There’s a problem with this approach, though. Let’s considerLoving v. Virginia, where the Supreme Court ruled that the state of Virginia could not punish an individual for marrying a person of another race. The Court held that the Fourteenth Amendment’s substantive due process right of ‘liberty’ included the right to marry a person of any race. The decision represents a very broad interpretation of the Constitution and human rights.
If the Court took an originalist perspective, then states would be free to ban marriages between individuals of different races. Loving was decided in 1967, a time when interracial marriage was not as widely accepted as it is today. Was the Court wrong to make that decision? I think they made the correct decision.
With the originalist logic, states would be free to ban interracial marriage. Normally, I would dismiss this line of thinking as a slippery slope fallacy. However, Justice Clarence Thomas wrote a concurring opinion opening the door for concern. He signaled that cases like Loving and others like it would be on the chopping block. Thomas wrote,
… in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence, [same sex acts] and Obergefell [same sex marriage]. Because any substantive due process decision is “demonstrably erroneous,” … we have a duty to “correct the error” established in those precedents.
Thomas’ opinion concerns a number of Americans because those cases and others connected with the Fourteenth Amendment represent landmark decisions for a segment of the population that believed these issues were settled. It also would potentially place citizens under the tyranny of the majority. Ask racial minorities in the South how that turns out.
What if Thomas’ claim has merit, though? What if the Court has been deciding cases incorrectly all these years? He’s certainly not alone in his thinking.
Thomas might have inadvertently done a favor for our system of government. Democracies function more efficiently and fairly when citizens take an active role, and Thomas’ words will most likely prompt a greater level of political involvement. Americans received an important reminder in terms of policies and rights. Nothing is ever settled. It’s all subject to change.
And what about life? Where does it begin? The Roe ruling in 1974 established trimesters as key benchmarks in determining at what point a state held a compelling interest in regulating abortions. The Court’s opinion maintained that when a fetus broached the sixth month of gestation, a state could prevent abortions because it held an interest in protecting human life. A fetus became ‘viable’ at this point, meaning the child could live outside the mother’s womb. He or she was alive.
Since the 1970s, science and technology have moved the needle on viability. A fetus can live outside the womb at an earlier stage of life. There’s no reason to believe that medical technology will only improve in the future. The demarcation of viability feels fairly arbitrary.
This question about the beginning of human life is the great disconnect between liberals and conservatives on this matter. Those on the left cannot understand how a fetus in the first trimester is considered human life. In that time frame, the fetus is about two inches in size and not well developed. If a person only sees this as a division of cells and not a human life, then how can that person be convinced that they are doing anything morally wrong? Approximately 90% of abortions occur in the first trimester, thus liberals do not view abortions as killing children.
Conservatives look at the development of a fetus in the first trimester and see clear indications of what will become a human being. The head, arms, legs, fingers, and toes are clearly visible at the 12 week mark. Eyelids and ears are developing. Many Americans fail to see how this could be viewed as anything other than a human being deserving of protection.
I struggle to determine how to best interpret the Constitution. The Supreme Court undoubtedly has an important role in interpreting what are sometimes vague and undefined freedoms. For instance, the Eighth Amendment guarantees protection from cruel or unusual punishments. What constitutes cruel and unusual differs between individuals now, let alone between generations separated by hundreds of years. Someone must interpret this, and as the former Chief Justice John Marshall aptly wrote, “It is emphatically the province and duty of the judicial department to say what the law is.” While consistency matters, we cannot operate solely under the intentions of people who lived hundreds of years ago.
I know that many states will not create policies pertaining to abortion that will not consider the nuances of abortion and why permitting exceptions is better than a blanket ban. It’s one thing to make an argument that there is no right to an abortion. But many states will legislate policies which do not reflect the complexity of abortion and this reflects poor policy making from Republicans.
In answering the question of life, I find myself at a loss to see a fetus as anything other than human life. Does life begin at conception? I believe it does. And maybe somewhere, science will prove me wrong. However, it does not stand to reason that we should judge the humanity of a person based on their developmental stage. Is the life of a fully grown adult more valuable than that of an infant child because he or she is more developed? In fact, society greatly values protecting the most vulnerable ahead of others. Unborn children are the most vulnerable.
There are gray areas
Critics of my position would correctly point out that situations exist where an abortion would be appropriate. Some pregnancies are referred to as ‘ectopic,’ meaning the fertilized egg rests somewhere other than the uterus. In most of these pregnancies, the egg is stuck in the fallopian tube, meaning the pregnancy cannot proceed. According to information from the Mayo Clinic, these fertilized eggs cannot survive. Not removing the egg can threaten the life of a woman. This is a situation where ending the pregnancy is vital.
When stillbirths and miscarriages occur, the same medical procedures often necessary to perform an abortion are used to remove fetal tissue. The law should properly distinguish between a necessary medical procedure and an elective abortion.
While creating exceptions is the right path forward, it’s important to note that they are indeed exceptions. Cases of medical complication, rape, and incest rank low on the reasons women choose to have abortions. The most commonly reported reasons include “Having a baby would dramatically change my life” and “Can’t afford a baby now.” I don’t believe these qualify as legitimate reasons for ending a life.
A jolt to the system
The Dobbs case will have implications beyond abortions laws. Overturning Roe v. Wade represents a significant shift in policy which stood for half a century. When dramatic changes like this occur, people react.
This decision will lead to a significant increase in political involvement. Pro-choice supporters have organized rallies and protests in virtually every major urban center in the country. Interest groups and candidates supporting abortion have received increased financial support since the beginning of May, when the Court’s opinion in Dobbs was leaked. Americans also have poured in millions of dollars to the Democratic Party in the last month. Now that Roe has officially been overturned, the donations will only further increase, particularly in light of the fact that mid-term elections are only a few months away. Expect a significant increase in voter turnout, also. It’s the one form of political participation most Americans actually do at some point in their life. The 2020 Election saw the highest presidential turnout in decades. Mid-terms usually have a much lower participation rate but Americans now realize the stakes are higher than what they previously believed. Coupled with active political participation, Americans will start considering the importance of better defining what rights people ought to have.
Finally, this past week represents an American right turn. In addition to Dobbs, the Court announced four other rulings which demonstrate a conservative shift, all 6-3 rulings decided along ideological lines.
- Religious issues were the focus in Carson v. Makin, where the Court ruled that Maine could not deny tuition assistance to private religious schools as part of their voucher program. It amounted to a violation of the Free Exercise Clause in the First Amendment.
- In Kennedy v. Bremerton School District, the Court ruled a school district could not fire a public high school football coach for praying on the field after games.
- With Vega v. Tekoh, the decision denied a citizen the ability to seek restitution for a violation of Miranda rights. Police questioned Terrence Tekoh before informing him of his rights and after Tekoh’s acquittal in criminal court, he sought to sue the police for violating his Fifth Amendment rights. The Court claimed he could not sue for such a violation.
- The Court also took on gun rights in New York State Rifle v. Bruen, where the majority opinion struck down New York’s gun law, which did not allow citizens to publicly carry a firearm without first proving a special need.
Clarence Thomas is the oldest member of the Court, at 74 years of age (not counting Justice Stephen Breyer, who is retiring at the end of this term). Considering past justices and their careers, it might be another 10 years before any seats open on the Court. This paints a dismal future for the left, particularly if they don’t win presidential elections in the future.
The left has long underestimated an important aspect of the political vibe in the country. Nearly half of America’s voting population holds either conservative values, or at the very least, they aren’t liberal. According to 2020 exit polls, 38% of voters claimed they were conservative, 38% said they were moderate, and only 24% were liberal.
These same voters, presented with the question about the legality of abortion, were fairly split. Approximately 51% stated it should be legal, while 42% said it should be illegal. Moreover, Americans’ beliefs on the matter have remained fairly split over this issue since the Roe era began.
Looking at the data on most subjects, a substantial portion of conservative positions strike a chord with the American public. Immigration, drug policy, environmental regulation, guns — pick an issue and there are more conservatives out there than the left wants to believe. The problem is that the left believes they have a stronger ideological position than they do.
Conservatives principles have long existed and they have consistently fielded support from large portions of the population. Liberals have overlooked this population or simply disregarded them as a vocal minority. It’s one of the reasons why Donald Trump managed to finagle his way into the White House.
Like it or not, the pendulum is moving to the right.