Stop Saying Supreme Court Made Roe Decision Based On Politics, Not Law

When it’s neither…

Supreme Court Justice Samuel Alito, who authored the majority opinion overturning Roe v. Wade

I’m getting sick and tired of mainstream media—if they’re trying to be bold at all, characterizing the decision overturning Roe v. Wade as based in things “political”, not “legal”, however beautifully written their explanations may be– because it’s not political at all. It’s a decision steeped in radical Christian Fundamentalism. So was a separate ruling last week that effectively did away with the separation between church and state, which I learned as a kid, in school, was one of the most important parts of the Constitution. Not anymore.

That’s why when Justice Alito says of his majority decision in Roe:

The Court emphasizes that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Dobbs v. Jackson Women’s Health, p. 7

No one believes him.

That’s why when Justice Thomas writes in a concurring (and clearly contradictory) opinion that the Court ought to now look at previous decisions through the same lens as Roe, they do believe him. Justice Thomas specifically mentions an itch to overturn rulings in favor of same sex marriage, and unmarried people’s access to contraception. And perhaps making it OK for states to outlaw certain sexual acts, even in the privacy of one’s own home. (p. 117)

And of course now that there’s no federally-recognized right to choose, there’d be nothing stopping a nationwide ban on abortion at some point in the future, should religious fundamentalists on Capitol Hill get the votes for it. Conversely, even if pro-choice candidates prevail in a big way, and pass a law making abortion a federal right, no way this Supreme Court wouldn’t declare it unconstitutional.

The only “political” decision would’ve been the one that Chief Justice John Roberts proposes in his concurring opinion: to rule only on the case that was at hand, involving Mississippi, and rule in Mississippi’s favor, but leave Roe v. Wade stand. An opinion that was rejected by everyone on the Court but him.

In fact, the fact that the ultimate decision is so patently not law-based nor political at least seems to me to be why Justices Breyer, Kagan, and Sotomayor write in their dissent:

So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does,all rights that have no history stretching back to the mid19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”

Dobbs v. Jackson Women’s Health p. 152

That’s why that’s in there. Why else would it be?

We’ve got to realize that most (but not all), politicians, judges, etc., seek their offices or seats because they believe they are so righteous in their own beliefs that alone gives them an obligation or right to impose those beliefs on others. That’s the baseline.

And what many of the people in the thick of the stuff right now believe, is they have a God-given right to impose their will on others. A duty really.

That is why the Supreme Court did this decision with alacrity. There will be plenty of others coming from this court that will limit civil rights, voting rights, workers rights, family rights, etc. All sorts of things designed to keep White males in power in this country well past our expiration date. But those are all only part of a conservative crusade, so it’s OK if they sit on the back burner for a little while. This decision is part of God’s crusade, and thus had to be dispensed with with appropriate zeal.

That’s why all the new justices who voted to overturn Roe and yet said during their Senate confirmation hearings they considered it “settled law” or something like that weren’t really lying. Because they’re still not disputing it was settled law, just that they’ve now exhibited a deep-seated personal obligation to overturn settled law if their theological beliefs inform them that law is not something of which He would approve. Then they can take what God’s telling them to do and just “law it up”. And hide behind that. That’s the simple part. In the future, as it becomes clearer what they’re doing—and they cannot be challenged, since after all, they are the Supreme Court—they may not even need to go through those pretenses and contortions.

Now, I’ve read the Roe decision in its entirety, and unless I missed something, the word “God” or “Lord” or “Christ” does not appear in there anywhere, true. And I’m not a mind reader, nor a lawyer.

But I did warn you about two years ago that Justice Thomas specifically (along with Justice Gorsuch at the time), were salivating at the idea of eviscerating maybe hundreds of years of precedent, based on their own, not legal, but religious beliefs behind smokescreen of “originalism”, that is, ostensibly reading the Constitution as written. Although there seems to be a little problem with that, and it’s this simple statement in the Constitution:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”

1st Amendment

So how do you get around that? Not a problem, Justice Thomas asserted back then:

“The modern view, which presumes that States must remain both completely separate from and virtually silent on matters of religion to comply with the Establishment Clause, is fundamentally incorrect. Properly understood,the Establishment Clause does not prohibit States from favoring religion. They can legislate as they wish. (My emphasis)

Espinoza v. Montana, concurring opinion

So even though he didn’t write the majority opinion overturning Roe, and religion is scrupulously absent from that decision, and the case I quote above ostensibly hinged on a different legal principle–though not if you’re looking at is as a vehicle for advancing religious fundamentalism, in which case it’s very similar–Justice Thomas is beginning to see his wish come to fruition. And he’s yearning for more. Interestingly, he also uses the word “neutral” to describe what I’m seeing as an extreme interventionist role by the Court, just as Justice Kavanaugh did in his own concurring opinion on overturning Roe. When the Court is clearly being not “neutral” at all. Not in action, nor in impact, which it is supposed to take into consideration as well. (Example: being able to drive from Texas to California seems to me is a burden, which many will not be able to afford; not the absence of a burden, as the Court suggests.) But you’re likely to see the word “neutral” thrown around a lot and used as an excuse a lot for things the court may or may not do in the future under the guise of protecting the 1st Amendment.

The dissenting justices also, interestingly, talk about how “balance” has become a “dirty word” for the majority on the court, even though the “scales of justice” has traditionally been symbolic of how a healthy legal system should work. Has the newfound love of the word “neutral” replaced that?

Because now, just listen to the words of those around Justice Alito’s scrupulously “based-in-law”, yet jumping through hoops decision. (Alito has the gall to write in the main majority opinion, women no longer can argue carrying a baby to term creates an undue financial burden, because it’s covered by Obamacare (also known as ACA). Yes, he says that! Even though he voted to kill Obamacare each time it came before the court.)

The Affordable Care Act (ACA) requires non-grandfathered health plans in the individual and small group markets to cover certain essential health benefits, which include maternity and newborn care. The ACA also prohibits annual limits.”

Dobbs v. Jackson Women’s Health p. 42

Anyway, while Alito goes to great pains to keep it strictly legal, almost everybody else around the decision are decidedly not afraid to speak what it’s really about.

The former Governor of Mississippi for instance, who kicked this whole thing off. And God is all over the place in his telling of what he set out to do and what just went down. His suggestion to pro-Choice women (when NPR asks him about it) isn’t to go back and study the Constitution and learn the law. No. It’s for such women to “pray hard” until the Lord “opens their eyes”.

The Supreme Court’s recent rulings, taken together, when couched in “law” are muddled and contradictory. Even if you agree they are ultimately rightly decided. But they speak clearly to one thing that’s both spoken and unspoken, and screams as loud as any subtext I’ve ever seen. And I’m not reading into things where they’re not, no:

An emboldened and radical court that believes Americans can’t be told what to do, but at the same time has every right to tell Americans what to do when the issues involved abut White Christian religious fundamentalism. Sound eerily like maybe Afghanistan, albeit a different religion. Anyone?