{"id":112,"date":"2023-01-30T16:05:34","date_gmt":"2023-01-30T16:05:34","guid":{"rendered":"https:\/\/blogit.utu.fi\/caselaw\/?p=112"},"modified":"2023-01-30T16:05:35","modified_gmt":"2023-01-30T16:05:35","slug":"the-curtailment-of-womens-rights-minority-opinion-of-the-supreme-court","status":"publish","type":"post","link":"https:\/\/blogit.utu.fi\/caselaw\/2023\/01\/30\/the-curtailment-of-womens-rights-minority-opinion-of-the-supreme-court\/","title":{"rendered":"The curtailment of women\u2019s rights \u2013 minority opinion of the Supreme Court"},"content":{"rendered":"\n

On June 24, 2022, the Supreme Court handed down its decision in Dobbs v. Jackson Women\u2019s Health Organization <\/em>stating that there is no constitutional right to abortion, reasoning that \u201cabortion is not specifically mentioned in the U.S. Constitution\u201d, and \u201cabortion is not rooted in the nation\u2019s history and tradition,\u201d nor is it an \u201cessential component of ordered liberty.\u201d <\/em>Justices Breyer, Sotomayor, and Kagan filed a powerful jointly drafted dissenting opinion where they argued that Dobbs\u2019 <\/em>ruling sees women as \u201csecond-class citizens\u201d. They also contested the majority\u2019s originalist interpretation of the Constitution and gave us a glimpse to the future and to the possible consequences of the decision.<\/p>\n\n\n\n

To start with, the dissent attacks the majority\u2019s \u201ccore legal postulate\u201d, that today in the 21st<\/sup> century we should read the Fourteenth Amendment just as its ratifiers did. Therefore, because the ratifiers didn\u2019t see reproductive rights as part of the Fourteenth Amendments guarantee of liberty, neither should we. Unfortunately, those (men) in the 19th<\/sup> century did not recognize women as equals nor recognized women\u2019s rights at all. The dissenting justices point out that the Constitution is not meant to be interpreted according to \u201cthe sentiments of one long-ago generation of men\u201d. The terms \u201cliberty\u201d and \u201cequality\u201d, were written in a universal form, to allow room for evolution in their \u201cscope and meaning.\u201d The dissent states that applications of those open-ended terms can develop whilst remaining \u201cgrounded in constitutional principles, constitutional history, and constitutional precedents.\u201d The dreadful outcome of the majority\u2019s originalist interpretation of the Constitution is that it \u201cconsigns women to second-class citizenship.\u201d<\/p>\n\n\n\n

The dissent also pays attention to the Court\u2019s determination to stay \u201cneutral\u201d. By leaving the decision-making about abortion to the States, the Court does not act \u201cneutrally\u201d. The decision taking away a right to abortion, which women have held for 50 years in the United States, does not make the Court \u201cscrupulously neutral\u201d. The fact is that by removing a woman\u2019s right to choose whether to have a child \u201cdoes not mean that no choice was being made\u201d. As Breyer, Sotomayor, and Kagan demonstrate, the right to choose is taken away from women and given to the States. <\/p>\n\n\n\n

How does this all affect women? For half a century Roe <\/em>and later Casey<\/em> have protected the liberty and equality of women. For women to be able to participate \u201cfully and equally in the Nation\u2019s political, social, and economic life\u201d, they must have control over their reproductive decisions, as Casey<\/em> recognized. The majority, however, does not think that forced childbirth has anything to do with a woman\u2019s right to equality and freedom or that a woman\u2019s control of her body has any constitutional significance incorporated to it, as Breyer, Sotomayor and Kagan disclosed. The outcome of Dobbs<\/em> is that the constitutional regime now acknowledges only the State\u2019s interest in protecting prenatal life and erases the woman\u2019s interest. <\/em>A striking fact the dissenting justices point out in the Court\u2019s ruling is the lack of discussion about possible effects on women and especially on women living in poverty. In States where abortions are illegal, women who cannot afford to travel to another state to obtain an abortion, have a possibility to lose their lives due to unsafe abortions. So, when does the Fourteenth Amendment\u2019s protection of life \u201ckick in?\u201d As shown in the Brief for the Howard University School of Law Human and Civil Rights Clinic as Amicus Curiae,<\/em> a ban on abortions increases maternal mortality by 21 percent, with white women facing a 13 percent increase in maternal mortality while black women face a 33 percent increase. The majority\u2019s answer to this is that \u201creproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.\u201d However, as the minority\u2019s opinion tells us, sometimes contraceptives fail, not all sexual activity is consensual and sometimes the party at risk of pregnancy can not make the decision about contraceptives. To conclude this, at least one result of the Court\u2019s ruling is certain: \u201cthe curtailment of women\u2019s rights, and of their status as free and equal citizens.\u201d<\/p>\n\n\n\n

Finally, the dissenting opinion paints a worrying picture about the future. Although the majority states that \u201cnothing it does casts doubt on precedents that do not concern abortion\u201d, the dissenting justices argue that all rights with no history stretching to the mid 19th<\/sup> century are at stake. Settled freedoms involving bodily integrity, familial relationships, and procreation, are all part of the same constitutional structure which protects autonomous decision-making over the most personal decisions. For example, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. As demonstrated earlier, the dissent tells us that \u201cthe majority\u2019s departure from Roe <\/em>and Casey<\/em> rests only on whether a woman\u2019s decision to end a pregnancy involves any Fourteenth Amendment liberty interests\u201d. The conclusion was that no liberty interests are present, because woman\u2019s choice wasn\u2019t protected in the 19th<\/sup> century. An interesting point was then brought up; the law also didn\u2019t protect same sex intimacy and marriage, marriage across racial lines or right to use contraceptives nor right not to be sterilized without consent. Following the majority\u2019s legal analysis all decisions protecting those rights were wrong as well. The possibility is that any issues with a moral dimension can be taken out of the Fourteenth Amendment and into state legislatures. Another worrying glimpse of the future comes from Justice Thomas\u2019s concurrence. \u201cIn future cases, we should reconsider all of this Court\u2019s substantive due process precedents, including Griswold, Lawrence <\/em>and Obergefell.<\/em>\u201d All in all, the significance of the Court\u2019s opinion and which rights it will affect, will rest in the future.<\/p>\n\n\n\n

\u201cAs of today, young women will come of age with fewer rights than their mothers and grandmothers had.\u201d Those are the words of the dissenting opinion, and they demonstrate a distressing future for the many millions of American women who lost a fundamental constitutional protection due to the majority\u2019s decision. Just to say, according to The New York Times, in January 2023 most abortions are now banned in at least 13 states and in many states the fight over abortion still continues in courtrooms. <\/p>\n\n\n\n

E.P.M.J.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

On June 24, 2022, the Supreme Court handed down its decision in Dobbs v. Jackson Women\u2019s Health Organization stating that there is no constitutional right to abortion, reasoning that \u201cabortion is not specifically mentioned in the U.S. Constitution\u201d, and \u201cabortion is not rooted in the nation\u2019s history and tradition,\u201d nor is it an \u201cessential component of ordered … Continue reading The curtailment of women\u2019s rights \u2013 minority opinion of the Supreme Court<\/span><\/a><\/p>\n","protected":false},"author":35805,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[],"class_list":["post-112","post","type-post","status-publish","format-standard","hentry","category-scotus2023"],"_links":{"self":[{"href":"https:\/\/blogit.utu.fi\/caselaw\/wp-json\/wp\/v2\/posts\/112","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogit.utu.fi\/caselaw\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogit.utu.fi\/caselaw\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogit.utu.fi\/caselaw\/wp-json\/wp\/v2\/users\/35805"}],"replies":[{"embeddable":true,"href":"https:\/\/blogit.utu.fi\/caselaw\/wp-json\/wp\/v2\/comments?post=112"}],"version-history":[{"count":1,"href":"https:\/\/blogit.utu.fi\/caselaw\/wp-json\/wp\/v2\/posts\/112\/revisions"}],"predecessor-version":[{"id":113,"href":"https:\/\/blogit.utu.fi\/caselaw\/wp-json\/wp\/v2\/posts\/112\/revisions\/113"}],"wp:attachment":[{"href":"https:\/\/blogit.utu.fi\/caselaw\/wp-json\/wp\/v2\/media?parent=112"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogit.utu.fi\/caselaw\/wp-json\/wp\/v2\/categories?post=112"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogit.utu.fi\/caselaw\/wp-json\/wp\/v2\/tags?post=112"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}