The engraging unfairness of Dobbs.
June 27, 2022
Note: This special Sunday edition is being sent off-schedule due to travel. I may not be able to send a Sunday evening edition for delivery Monday morning, and I will be back on schedule Tuesday.
Standing alone, the abolition of an existing constitutional right that results in the subordination of women to theocratic state legislatures is anti-democratic, un-American, and a violation of human rights. Even so, the manner in which this Court chose to dispense with a right that is recognized in 174 of the world’s 195 nations was hurtful and cruel. Indeed, Alito’s opinion seems designed to give offense while inflicting injury.
I will soon return to writing about the fight to restore women to full citizenship in the US, but today I want to acknowledge the enraging sense of unfairness and loss provoked by the cynical, ignorant, and mean-spirited way in which the religious right has abrogated a right at the core of personhood and autonomy of women.
Let’s start with Alito’s biggest lie. He writes, “It is time. . . to return the issue of abortion to the people’s elected representatives.” That misdirection has become the right’s antiseptic re-telling of the abolition of a constitutional right. The Dobbs decision returns the issue of abortion to “the people’s elected representatives” because it abolishes the right to privacy and personal autonomy over reproductive choice that was recognized for fifty years.
A crude analogy is a mugger who claims that “I sent the victim to the emergency room,” ignoring the fact that the injuries he inflicted on the victim necessitated the trip to the hospital. “Returning the issue to people’s elected representatives” is the result of abolishing a constitutional right. First and foremost, Dobbs abolishes a constitutional right. Don’t let anyone confuse that fact by pretending Dobbs is really about empowering “the people’s representatives” to decide the issue. It is not.
The decision is particularly maddening because it reverses the global trend toward greater liberty and freedom that marks the modern world. Yes, there are exceptions to that trend in the 21 nations that ban abortion entirely—an ignominious list the US has now joined: Andorra, Republic of the Congo, Dominican Republic, Egypt, El Salvador, Haiti, Honduras, Iraq, Jamaica, Laos, Madagascar, Malta, Mauritania, Nicaragua, Palau, Philippines, San Marino, Senegal, Sierra Leone, Suriname, and Tonga.
Perhaps the most grievous sense of injustice flows from the fact that Dobbs marks the first time the Court has abolished a constitutional right—a right that was hard-won by millions of women alive today who fought for its recognition. The nearest comparison would be if the Court reversed its ruling that “separate but equal” education and accommodations are impermissible under the Constitution. Such a ruling would deny the equality and dignity of Black Americans; so, too, with the ruling in Dobbs. One class of Americans has been told “You are not equal; you are less than your male counterparts and the state will take control of the most basic aspects of your personhood.” Whenever we discuss Dobbs, we must acknowledge that its effect is to deny the equality and dignity of women.
The sense of unfairness is compounded by the fact that at least two (and possibly three) justices lied to the Senate during their confirmation hearings. The opinion in Dobbs makes clear that the Kavanaugh and Gorsuch always believed that Roe was “egregiously wrong” from the start—an opinion they concealed from the Senate and the American people.
The fact that Senators Collins and Manchin have accused Gorsuch and Kavanaugh of misleading them during private interviews is shocking. Both justices should resign in disgrace. But like Kavanaugh’s infamous defense of his love of beer, he has no shame. He does not care that the world knows he is a liar. The sense of impunity and callousness makes their attack on the rights of women all the more heinous.
The reactionary majority pretends that returning the issue to the states will restore balance and harmony to a democratic system. It will not. Instead, it will exacerbate inequality and divisiveness along geographic, wealth, and religious grounds. Americans in some states will have a right over reproductive choices, while others do not. Poor Americans will not have the same ability to circumvent abortion bans by traveling to other states. And some Americans will see their religious beliefs codified as law while others will be told that their personal beliefs do not matter.
The patchwork of conflicting laws and elevation of differences will create two Americas. Affluent Christian evangelicals will surreptitiously travel to other states when their personal circumstances collide with their public professions of faith. Poor women will not have that choice but will be forced to give birth to children that the white, male, Christian-dominated legislatures have no intention of supporting with adequate healthcare, safe schools, or food security.
Finally, in a breathtaking display of ignorance and insensitivity, four male justices dismiss the burdens and risks of pregnancy and the life-altering consequences of forcing a woman to give birth. That ignorance and insensitivity is not diminished by the fact that the reactionary majority includes a woman who is a member of a religious cult on the fringes of American society.
Concluding Thoughts.
There are undoubtedly countless other grounds for rage and grief over the holding in Dobbs. In describing some of those reasons here, I do not presume to speak for anyone, especially not for women who must live under the dystopian regime unleashed by Dobbs. I am trying to add to the conversation for consideration by others, nothing more.
I expect to receive corrections and reprimands from male readers telling me that I have overstated the effect of Dobbs. Some will point out (correctly) that Dobbs did not technically outlaw abortion anywhere. While that is true, the effect of Dobbs is to allow state legislatures to do that dirty work—which is happening with breathtaking speed across the nation.
If we are going to have a discussion about Dobbs, we should be honest with one another. The intent of Dobbs was to allow GOP-controlled states to outlaw abortion. Pretending otherwise is offensive. While such emails may only annoy me, I strongly counsel against making those arguments to the women in your lives who are grieving over this decision. If your response to that grief is to point out legal distinctions that will not make a difference in their lives or feelings, you are missing the moment. Don’t.
I am opening the Comments section to all readers today, given the flood of feelings that Dobbs has provoked. Please be respectful in discussing this issue.
I will be in touch on Monday evening, at the latest.
Here is the letter I just wrote to my so-called Representative Pete Stauber, after receiving his latest newsletter. Your readers are welcome to borrow the language when they write to their anti-choice politicians.
Dear Rep Stauber,
I was sickened by your celebration of the overturning of Roe v Wade by the extremist majority in the Supreme Court. Two justices lied in their confirmation hearings when they indicated that Roe was ’settled law’ and they did not intend to overturn it. Poll after poll shows that most Americans did NOT want Roe to be overturned, no matter what their personal preferences. The illegitimate SCOTUS is happy to overturn state laws regulating guns but give states total say about whether girls and women have the right to reproductive health care. Clarence Thomas, who also lied in his confirmation hearings, has indicated that birth control and marriage equality are next. These decisions fly in the face ‘majority rule,’ a bedrock of our faltering democracy.
You are in a very privileged position to be able to afford to have five children and have good health care coverage provided by US tax payers. Most people seeking abortions in the US today are low-income mothers. This decision is a blatant attack especially on low-income girls and women around the country. You are forcing incredible pain and hardship on the most vulnerable people, many of whom don’t have access to the health care they need to prevent unwanted pregnancies, thanks to Republican attacks on Planned Parenthood and Medicaid expansion. You are putting doctors at risk of imprisonment for providing essential health care.
If you think all life has value, then why do you and your fellow Republicans consistently cut aid to low income families? You force girls and women to bear children they do not want and cannot afford, then make it even harder for them to bear and raise these children. Adoption is NOT the answer for most of them. Even intended pregnancies take a toll on our health and our bodies.
Your version of the ’sanctity of life’ clearly does not apply to living, breathing, conscious people. You well know that the vast majority of abortions take place within the first three months of pregnancy, long before fetal viability and consciousness. The tiny minority of abortions taking place later involve very hard decisions that should be made by women and their doctors, not distant elites in gerrymandered districts in their comfortable offices, pretending to care. The US will soon have stories like those that have emerged recently in anti-choice Poland, such as the death of a healthy mother of four who died this year of septic shock after doctors refused to terminate her failing pregnancy with twins. The first fetus died in the womb on December 23, but doctors refused to remove it, due to abortion laws, and her health deteriorated. The hospital waited until the heartbeat of the second twin stopped a week later, and waited a further two days before terminating the pregnancy on December 31. The woman, Agneiszka, died on January 25. Don’t forget her name, or the names of Americans that will soon follow, thanks to a minority of Republican extremists like you. Already, American women in some states are being prosecuted after having miscarriages. Young teens are exhausting family savings by having to travel hundreds of miles and spend thousands of dollars for a safe abortion.
Shame on you. Your hypocrisy and cruelty will not be forgotten this November. You are ignoring what most Minnesotans, and most Americans, want: for abortion to be safe, legal and rare.
Dobbs will prompt a much needed re-examination of the role of the Supreme Court in our society and government. The people will not tolerate a Court that destroys our rights to vindicate the theological goals of a minority. I don’t think the Court will survive this in its current form.