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Liz, Rebecca, Alison and Monica discuss the decision in Dobbs v. Jackson Women’s Health Organization, which overturns the fundamental right to abortion care. The co-hosts break down the decision, the ramifications of the decision, and commiserate over the future of the rights of women to make their own health care choices.
Background
Relevant Cases
Sonia Sotomayor:
(recording playing)
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”
(recording ends)
Rebecca Markert:
Welcome back to We Dissent, the podcast with four secular women attorneys discussing religious liberty in federal and state courts and our work to keep religion and government separate.
I’m Rebecca Markert with the Freedom From Religion Foundation, a second class citizen, and one of your co-hosts.
Monica Miller:
And I am Monica Miller, the legal director and senior counsel at the American Humanist Association, also now a second class citizen, and also one of your co-hosts
Alison Gill:
I’m Alison Gill, vice president for legal and policy with American Atheists. And I think we’re about to, trans people are about to be criminalized across the country. So also pretty second class–
Monica Miller:
Third class!
Alison Gill:
I’m also a cohost.
Liz Cavell:
And I’m Liz Cavell. I am associate counsel at the Freedom From Religion Foundation and fellow second class citizen.
You may have guessed in this episode, we are gonna discuss the decision that just came down on June 24th, overruling Roe versus Wade and stripping away the constitutional right to bodily autonomy that’s been in place for 50 years. Dobbs versus Jackson Women’s Health is the case.
And we were planning to record this episode before the opinion came down last Friday, and this was gonna be sort of a background and a preview predictions, the leaked opinion, oral arguments. And now here we are, post opinion and post Roe.
So bear with us, because this is gonna probably be a lot of processing out loud. We’ll try to give a lot of the same background and analysis, but I mentioned to Rebecca earlier, this episode might lean towards the cathartic. So I hope you like the F word because here we go.
Monica Miller:
<laugh>
Rebecca Markert:
Yes. We’re still processing the decision. And I think a lot of Friday and this past weekend was really just us coming out of shock.
I mean, even when you knew it was coming because we had SB 8 in Texas and we saw what the court did there and we had the leaked opinion from Alito. So we knew what it was going to say. It’s still a gut punch when it comes, even when you know it’s coming it’s, it was, it was a hard weekend.
Monica Miller:
And I honestly, for me it was my friends that, that work in that are abortion providers, like doctors. It wasn’t until I got their text messages, like, oh my God, it really happened like that I started to, it really hit me and all the people that are gonna suffer as a result, like my doctor friends cannot believe that the, their profession has been ripped from them in a, in a fundamental way too.
Alison Gill:
Along the same lines. My mother is a nurse midwife. And so she practiced for years and years delivering babies. And she often volunteered her time at Planned Parenthood. You know, performing OB GYN practices and she was just devastated by this as well. So she called me and we had a long conversation about it.
So it’s just affecting so many people and it’s gonna continue to affect so many people and result in so much pain and death.
Rebecca Markert:
And trauma.
Liz Cavell:
Yeah, it’s awful. And we’re gonna kind of talk about it from background on the case, through arguments at the Supreme Court and then spend a lot of time just kind of parsing and processing the opinion.
So let’s jump right in. So Rebecca, you kind of alluded to this, but we, we knew when this case was pending on the court’s oral argument calendar that the court was doing some signaling in this SB 8 case in Texas.
So what are you talking about when you say SB 8 and how did that foreshadow, what was gonna happen here in Dobbs?
Rebecca Markert:
SB 8 was the heartbeat ban in Texas. So it was a state law called the Texas Heartbeat Act, which was introduced last year and went into effect on September 1st, 2021. It makes it illegal for abortions to be performed when there is a fetal heartbeat detected. For most pregnancies this of course occurs around six weeks. This obviously is for people who menstruate and it can be as early as two weeks after a missed period, six weeks gestation is usually before women know that they’re even pregnant, but this law makes it illegal to perform an abortion once there is a fetal heartbeat.
Liz Cavell:
And then what was really unique about the enforcement embedded in this law is that the state of Texas basically deputized the public writ large to enforce this law against other citizens, by suing people who perform abortions or aid and abet abortions and puts a $10,000 bounty per abortion on this enforcement mechanism. So the whole idea behind this enforcement mechanism was to make it basically impossible for the courts to reach and strike down because there’s no government entity that’s actually enforcing the law.
And so that went into effect like Rebecca said, September of last year and the Supreme Court was the entity that allowed it to go into effect because there was a request for an emergency order, basically stopping it from going into effect while it was litigated. And SCOTUS basically said, no, it’s fine, it can go into effect. And so that was obviously a bad sign. And then even after it was enjoined, meaning a federal judge stopped it from going into effect in the normal course of litigation, the, the ultra conservative now Fifth Circuit basically issued a stay on the stay basically said, no, you don’t have to halt enforcement of this law. It can go back into effect.
So, that question went up to SCOTUS and SCOTUS declined to intervene and let the fifth circuit say on the matter stand. And that means that the law has been in effect since that point, which was late last year. So Texas has been living under this reality for quite some time now and already there’s, you know, the ultra conservative, Texas, right to life. They have a whistleblower reporting system that is trying to rally residents to report violations of the law and you know, their gung-ho for enforcement. And of course, as a practical matter, this has halted basically all abortions in Texas.
Alison Gill:
I have to admit, I thought that they, at some point this would be overturned because it’s just sets up such a scheme that is just so foreign to the way our system of laws work. And is so stacked against certain types of litigants, like those sort of who would, uh, you know, have an abortion or help someone else have an abortion. So it it’s just the way that the law is stacked against them. They have to win on every claim or else they’re subject to attorney’s fees on the other side, um, they can only use certain types of limited evidence. Only make certain types of restrained arguments.
The damages are set at a minimum of 10K, regardless, we’re not talking about where another person is actually harmed in any way. They were talking about strangers in the law. So that’s far outside what any of us would consider normal for standing. Right. It’s just foreign to how the law normally works. And it sets up a system that is just not tenable. You can see this gonna get around any Constitutional Right. It’s not limited to abortion. This could be using totally any framework.
Monica Miller:
Totally. I mean, one of the reasons that we’ve gotten kicked out in my personhood, you know, elephant cases is the notion that it’s gonna open the floodgates and be like, everyone’s gonna be against each other and all these court cases. And it’s like, that’s exactly what this does. It is pitting everyone against each other to have, you know, a bounty out for women. And it’s a completely novel use of the law in a way that is like exactly it’s counter to the system that we have.
Liz Cavell:
Right. And that’s what was surprising when the Supreme Court just refused to intervene on the enforcement of this law while it’s litigated. Not that we were all clutching, our pearls with shocked that they didn’t intervene because of abortion access, but that they let this bat shit crazy enforcement scheme, just roll into effect. Even though like Alison said, it kind of goes against everything that you know is supposed to kind of establish who can sue whom and for what and why. It just explodes it all wide open.
Alison Gill:
It’s kind of interesting, because we’re gonna be talking about due process of law a bit today. Right. And this is, um, you know, there’s two meanings for due process. One is it sort of, are they following all the processes? And two are the processes actually protecting rights in a way that the government can’t go beyond as authority.
Here, I think we’re seeing that sort of line. Right? The due process, they have a process, but it’s so skewed on its face. The court did not actually look at this bill and say, this is okay. They just refused to consider it in the first place. Right. Because of some procedural nonsense. So that’s important to know.
Liz Cavell:
Right. Okay. So let’s move along. Because so much has happened since then. So fast forward somewhat to Dobbs and that’s the case that just overturned Roe versus Wade.
So this case was also in the pipeline and this case involves and arises out of Mississippi and Mississippi passed their own draconian abortion ban that also was expressly forbidden by Roe and the law of the land when it was passed. And that was the Gestational Age Act and that was an abortion ban on all abortions after 15 weeks of pregnancy, there were no exceptions in the law for pregnancies resulting from rape or incest. There were exceptions for I think, health and life of the mother and maybe severe fetal abnormality, but that’s it.
And that went through the lower courts, the district court in Mississippi and the Fifth Circuit Court of Appeals, both of which ruled that the law was clearly unconstitutional as it was under Roe versus Wade and still SCOTUS granted cert to review that case, which was already a terrible sign because it’s the established law of the land. The courts ruled correctly, striking it down and SCOTUS said, oh, we’ll take a look. So that obviously was bad signaling.
But the question that they were sup- that they agreed to consider when they heard the Dobbs case is whether all pre viability prohibitions on elective abortions are unconstitutional. And that was the line that was drawn in Roe reestablished by Casey saying that any bans on abortion before the point of fetal viability are unconstitutional. And that was what SCOTUS agreed to consider whether that bright line was necessary.
Rebecca Markert:
So originally when they petitioned the court for certiorari, they said, you don’t have to get to the question of whether Roe should be overturned and Casey should be overturned. You can decide that this is constitutional without doing that, but then it wasn’t until there was a change, of course, in personnel on the court when Justice Barrett came on the court, that they actually changed their arguments during the pendency of the appeal and brought up the question that Liz just said, whether all pre viability prohibitions on elective abortions are unconstitutional.
So really you saw them also playing that game and knowing, Hey, we have the justices now we can get Roe overturned.
Monica Miller:
And that’s, that’s just, you know, part and parcel of the same, you know, strategy and approach that we’ve talked about in the past where First Liberty, Becket Fund, all of these opponents that we have have changed the, how they argue on appeal and like have added an evidence and appendices and have just completely distorted the normal legal process where you establish facts on the ground, that the arguments that you make at the trial court level or at the district court level, in the federal courts is, is basically frozen. Those are your arguments. You can’t make new ones up on appeal. And most certainly you can’t make new ones up at the US Supreme Court. And yet that is precisely what ends up happening nowadays under Alito’s, you know, judicial rulings. Just different facts and different law.
Liz Cavell:
Right? And it is often in response to shifts in the courts. You’re seeing this type of machinations because litigants are seeing that they have these just radically conservative courts now where we might have been litigating a case for two or three years and then in those two or three years, all the courts have lurch to the right. And so there’s no, there’s no hesitation for litigants changing their arguments to be even more radical to see what they can get away with and that’s what happened here.
And that voice that you heard at the top of the episode of course, was Justice Sotomayor during the oral arguments for this abortion case, the Dobbs case where she called out explicitly that the court’s legitimacy is just being run into the ground by these decisions that completely cast aside these well settled, constitutional principles and rights.
And the only thing that has changed is the composition of the court and the American public can see that nothing has changed. Why all of a sudden is abortion illegal in half the country. And we have no rights to autonomy and reproductive freedom. I don’t understand what’s changed in my lifetime and the only thing that’s changed obviously is they have the votes.
Rebecca Markert:
At the Court, they’re throwing out all the rules that we learned in law school. They’re not abiding by anything that we’re used to. I mean, the playbook has changed drastically from when I got admitted 15 years ago to today.
Alison Gill:
Yeah. I saw a note from the bar exam going out to students who were taking it this year. That said basically, you know, no, the recent happenings at the Supreme Court are not going to be reflected on the bar exam because it’s just such a radical departure in so many different areas. That of course students are gonna be asking that because the law is just flipped on its head in different areas and without any sort of justification that’s reasonable.
Monica Miller:
I was just thinking about all of our form letters, you know, monuments and school prayer and, you know, just change the facts and like, because the law is the same and like starting with Town of Greece, like that started to just, you know, exponentially change. And now it’s like, okay, I think, you know, we have a whole different like start from scratch. So absolutely I can’t imagine studying for the bar exam for Con Law right now. You just, you can’t.
Rebecca
Markert: That just illustrates Alison’s point. Right? I mean, and my point really of how drastically it’s changed because these students who are taking the bar exam this summer only started law school three years ago and already the National Board of Bar Examiners is like, well, you know what, we’re just not gonna test you on con law, because it’s all changed and you didn’t actually learn what the actual law is now. Like it’s insanity.
Alison Gill:
And part of it is also, there are no rules. Right. I was trying to construct a flow chart of rules with my, our litigator Jeff yesterday. And the first question is, is the complainant Christian. Right?
Monica Miller:
Right. No. Right, right. Yeah.
Alison Gill:
Two, is this a culture war issue? You know, those are like the key rules to decide who wins these days, which is not a legitimate system of law. It’s just not, and that’s where we are. It’s just really sad.
Rebecca Markert:
We’ve jokingly made that flow chart into a meme at our office too. And you know, probably a year ago it was funny. But now I feel like it’s just like a laugh, cry situation.
Monica Miller:
Exactly, it’s like the second class citizen thing. I’m like, oh haha like I’m a second class citizen. And then it’s like, it might just turn to real tears really fast. And then I can go back to laughing when I try to pep myself up like, okay, the silver lining is that now more people care. Maybe it is got this flavor of vindication, but it has none of the rewards of it because there’s nothing about this that’s good.
But like, okay, we’ve been saying this for a long time. Like, you know, it starts with the cross. It starts with these small things and all of a sudden the trickling stream becomes a raging torrent and does, um, one of the opinions had recognized with Establishment Clause violations. And that’s why we were fighting on the ground, you know, 10 years ago for these things that people were like, I don’t really get what the big deal is. It’s just a Ten Commandments. It’s like these were the, these were the underpinnings of the bigger picture and that’s now getting completely eroded.
And I think now even religious folks are on our side. I was giving a talk in Utah to Mormons and at least like somewhat progressive to moderate Utahns were very much sympathetic to our points more now than before. So the small silver lining I think is that we have a broader awareness of why, why we need a separation of church and state.
And to that end, maybe this can signal a shift in like the public because obviously forced orthodoxy isn’t gonna work anyway. So maybe this is the time we can kind of strategize, but we like, I don’t know anyway, sorry for the tangent. I just, I’m trying to find the silver linings time I get like depressed about it.
Alison Gill:
Well on that front, also this points, even more reason why we need court reform like these more, these ridiculous rulings come out and I’m sure we’re gonna talk more about some of the ridiculous rulings we’ve seen over the last week. It really does point to the fact that we need court reform and hopefully garner, you know, more support for lawmakers for that purpose. And when I say court reform, I mean for both lower courts and also for the Supreme Court.
Rebecca Markert:
And back to Monica’s point about more people are talking about these issues and more people are on our side now. I mean, I really do feel that as well. I was thinking about that earlier this morning, how I’m a big Hamilton fan, the musical, and I was thinking, you know, that line, you know, tomorrow there will be more of us. And I feel like that really hit me when I saw that musical a couple of years ago and really thought like that that is like the movement that I am in. We like tomorrow there is going to be more of us and I think that time is now, really here are so many people who are talking about what happened at the court. They’re interested in the court, they’re going to be motivated to do more court reform and contact their legislators about it and things like that.
But also the fact that this was an abortion case and the aspect of religion, which we’ve all said, abortion finds a lot of its opposition in religion and that finally came up in the oral arguments. This is probably gonna be the only time that we talk about the oral arguments during this episode, but Justice Sonia Sotomayor brings up the question of, is this a religious view to the solicitor general? And we do have a clip of that. So we’ll take a listen.
Sonia Sotomayor:
(recording playing)
How is your interest anything but a religious view? The issue of when life begins has been hotly debated by philosophers since the beginning of time. It’s still debated in religions. So, when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it? Because it assumes that a fetus’s life at when? You’re not drawing, you’re, when do you suggest we begin that life?
Scott Stewart, Mississippi Solicitor General:
Your honor, I aside from–
Sonia Sotomayor:
Putting it aside from religion.
(recording ends)
Alison Gill:
That brings up a really interesting distinction because the court has said previously that, you know, something that is just because it aligns with the religious belief does not mean that it’s religious under the law. Like for example, a lot of religions condemn murder, we have murder laws. That’s fine. But here, I really feel like we’re talking about a different situation to, to Justice Sotomayor’s point where the underlying motivation, like the justification for this sort of rationale in the law is religious and nothing else. And that’s more similar to me to like creationism in schools than it is to prohibiting murder. Right?
Liz Cavell:
Yeah. So Alison, what you’re talking about was the essence of our amicus brief that we filed in the Dobbs case and Alison’s org American Atheist signed on with FFRF and Center For Inquiry on our particular brief. And our whole amicus brief was to just inject into the conversation what has been lost over the decades in the surface level argument around the legality of abortion restrictions, which is they are undergirded by a belief about when life begins.
And the basis of that belief is religious in the oral arguments when Justice Sotomayor said that quote, that we just played, you heard a response line of like he doth protest too much from I think it was Alito just because I’m picturing a really angry ranty, whiny baby. Trying to tee up this response to that question and that colloquy for the attorney from Mississippi, basically the question was something to the effect of isn’t there like a belief that life starts at fertilization found in philosophy and this other secular place and this other, you know, belief system that’s not religious and just basically really showing the strength of Justice Sotomayor’s point and our point that, you know, the, the basis of these laws, if you read the definitions in these statutes, they include a definition of fetus or whatever it is that that actually gives a definition of when life begins or what a fetus is. And it’s a, you know, a, whatever it is, you know, a zygote from the moment of fertilization or whatever that’s in the law. And those definitions don’t have a scientific basis. They come from religion and I mean to say, otherwise it is just a sham.
And that’s what we tried to call out in our brief, is just the viability line is, is useful because, and not just useful, but it’s the most constitutional way of evaluating laws without letting lawmakers just start with an unconstitutional purpose and build out their, you know, statutory scheme from there.
Alison Gill:
I have a biochemistry degree. I tend to think of these things in biological concepts. We hear arguments all the time about how life starts at a certain time period. And therefore that’s more important, but it doesn’t like life started millions of years ago, it’s been a continuous cycle. Any gradation we draw is arbitrary.
So like, it’s a question of what is most rational and also what’s enforceable and logical. And to say something starts in this way because of purely religious reasons and no others, because that’s when the soul enters the body or whatever the hell they believe does not make any sense. You know, we don’t give rights to people until they’re born for a reason because that’s the most easy way to sort of differentiate and that’s logical.
Liz Cavell:
Right. It’s so true. The actual reason, like what I tried to point out in the brief in the amicus brief is that these anti-abortion bills are actually motivated by religious ideology and interest. It’s like, it’s not just me saying that it’s the legislators saying that oftentimes on floor debate on these bills and also in my analysis, in the text of the definitions of the bills, that’s something that should be part of the constitutional analysis of these bans, but it isn’t.
Monica Miller:
Yeah.
Alison Gill:
You know, ironically, if they had been have an anti-religious motivation, actually they’d be at risk. Like if they were saying that we’re doing this because we don’t agree with a religion or this religion, then actually under the court rulings, they might be more at risk, which is fascinating and terrible.
Monica Miller:
And well, it’s that doubly protected religious speech. And you know, the discrimination that happens when the government tries to be neutral with respect to religion is now called religious discrimination. So your point is exactly taken Alison it’s like, this is everything has been flipped on its head.
Whereas once if they had a religious purpose reflected in the legislative record, we would say that violates the Lemon Test because it has a secular it has a religious purpose. Now that’s that purpose might be completely acceptable. And if they said, oh, we want to be neutral and not take religious stance that could end up looking like they discriminated against religion on account of religion and thus get strict scrutiny and all the other things that Alito will do.
Liz Cavell:
Right. That’s hostile towards religion. Yeah.
Well, I wanna bring us back to the Dobbs case because I wanna leave ample time for us to scream about the opinion so it maybe goes without saying, but just to make sure everyone can follow along, no matter how addicted you are to Supreme Court coverage, obviously Roe versus Wade dates back to ‘73, right. And that was when the Court first held that the right to privacy basically embodied in the 14th Amendment, encompasses a right to be free from government bans on abortion.
So, established something that had not been established before Casey came up in the nineties Planned Parenthood versus Casey, that was a case where the court was invited to overrule Roe, but it of course, upheld Roe and more clearly established the viability standard and made clear that states can regulate abortion before viability in all kinds of ways and we know that they have and made abortion like ever more impossible to access for a lot of women in a lot of places. But as long as the regulation before viability, doesn’t place an undue burden on those seeking abortions.
And then we saw Whole Woman’s Health v. Hellerstedt. That was a recent case, just what five, seven years ago that where the Court, again, a majority of the court upheld Roe, upheld Casey and clarified that abortion restrictions are only constitutional if they actually further a valid state interest and those interests outweigh the burdens placed on those seeking abortions.
So this idea that like there has been turmoil in the law or that it’s been unworkable is just a mythology like Roe has been in place since the seventies and for the most part has been settled and uncontested other than by staunch opponents that have been hell bent on undoing it or passing laws that clearly violate it.
So that brings us to Dobbs and Dobbs was argued this term and the decision came out, oh my gosh, should we talk about the leak? Well, I’ll just say, as you probably know, unless you live under a rock, the opinion was leaked and the leaked version was reported on widely. And it was a decision drafted by Alito that overruled Roe and Casey, which is exactly what the opinion that came down Friday did. And basically the opinion was substantially the same, almost identical to the opinion that was leaked.
So even though we all knew that it was coming, like Rebecca said, it was still unreal to see that the actual opinion was actually the hellscape that we all read through and heard about when it was leaked. So this was a decision written by Justice Alito, and it was a six, three decision, by the six, three ultra conservative majority. That’s now on the court, right along party lines.
Alison Gill:
There was some hope, I think that Justice Roberts could get at least one justice for a slightly more narrow vision of rolling back Roe instead of overturning it completely. Unfortunately, that’s not what happened, but there was some, I believe there was some hope out there that that might be the case.
Liz Cavell:
Right, exactly. That this opinion leaked and it’s clearly a real opinion draft, but that maybe there was some kind of horse trading going on behind the scenes that would somehow make that, not the final outcome, but then here we had it and this is actually happening.
So Alito with the six conservative justices, overruled Roe and Casey. It was the opinion that was leaked, which was very blunt, very radical and kind of just ruthless in its language and its treatment of the issue. There were concurring opinions written by Justices Thomas, Kavanaugh, and Roberts who the chief Justice Roberts filed a concurring opinion, basically laying out, as Alison said, his kind of middle way that he would’ve wanted to have seen be the majority, which was striking down Mississippi’s 15 week or sorry. No, upholding.
Monica Miller:
I wish, right.
Liz Cavell:
Upholding Mississippi’s 15 week abortion ban of course. But answering that question that I said the Court was supposed to consider and only that question, which is, is the viability bright line constitutionally required. He would’ve said, no, it is not, but not overrule Roe and Casey and not say as much as Alito and the majority went on to say about how much we do not have any right to an abortion in this country.
Monica Miller:
It’s just so jaw dropping that we went to law school that we didn’t study Roe very long, because it was just kind of like that it, this is what the law is, this is what it’s been. And then we like moved on to some more intricate stuff, but it’s just like the settled nature. It’s not the, it’s a right. It’s a right that we have. It’s not just like you’re overturning the Lemon Test, which is our law that we use to practice. It’s like, you are overturning our right. Like you are putting fetal life, fetal harm, whatever words Alito is using above my existing life. Like the potential life has more rights than the existing life.
And that is, you know to say that we don’t have the same interest in living you know, it makes you just your brain kind of tries to not spin, but then it does. And then you go like, how could someone like Amy Barrett sign her name to this? Like how would, how did women in general do they not, are they not aware? Do they not care? Do they think they’re privileged? Do they, you know, that’s where my brain goes. When I pause.
Liz Cavell:
Well, I don’t, I know we don’t have time to go through oral arguments, but I just, I have to answer that because I love how Amy Coney Barrett, her contribution to oral arguments was to point out that don’t most states have safe haven laws where you can just drop off your unwanted baby at all these public places. And doesn’t that kind of like really step into the void where we need abortion in society.
Monica Miller:
When I saw that in Alito’s opinion like that, that made its way into Alito’s opinion. My mom was in the car and I was just reading the decision while she was driving me. And like I just, like, I blurted something out loud. I was just like, you know, fuck all this. But it was like, what did Alito say? He said with, yeah, that women have all these, the times have changed so much. You know, since back then now women can easily just drop off their babies at safe haven places. And you’re thinking that’s a better policy than having an abortion, is having someone be forced to give life and then drop it off.
It makes you wanna scream. And they were sure they don’t care about that life, that after that, right. Like you’re gonna, you’re gonna let it have guns. You’re gonna let it be poor, not have food.
Alison Gill:
It’s just the same person that also said, you know, the right to sort of direct your child’s upbringing is so critical into the First Amendment. So is that, does that square in any way? Like it’s so critical. You can direct your child’s upbringing, but it’s not, you, you don’t get a choice whether not to have the, how does that make sense?
Monica Miller:
Especially when you consider, like how, you know, vehemently they were against the mask mandates and like my body, my choice. And you know, this is about making individual choices. Like I have a really bad needle phobia and if, you know, someone was forcing me to, you know, if I didn’t want to have the pregnancy and you’re gonna have this extremely intrusive process and there’s like blood and needles and appointments and stuff, and all of that, you know, taking time off of work like that, you’re, you’re asking for so much more than just putting on a piece of cloth to protect your neighbor, like from getting deathly disease. So it’s really not just about you.
This is a situation where you’re talking about when you go down any path of morality or logic, you land in frustration when you try to analyze these cases, because they don’t actually track logic. They don’t track the law. They don’t track good policy. They don’t track morality. They track whatever is going on politically in Alito’s, in Thomas, and Gorsuch and Amy, in Brett Kavanaugh’s minds.
Liz Cavell:
Yeah. So speaking of law and history, which Rebecca chimed in, let’s talk about what his decision rests on because what this decision did is basically said that that majority of, and what was that like an eight to one decision, the Roe v. Wade decision, which included a majority of then Republican appointees said those justices were just dead wrong and actually abortion is not protected by the 14th Amendment at all. And like didn’t really replace that with any other type of constitutional analysis or even 14th Amendment analysis as it already exists, but plugged in this absolutely perverse obsession of this majority, which is deeply rooted in our history and tradition.
This is where they like to go for all of their evil deeds, which is, was this right known to Americans in the time of the founders or in the history and tradition of our great nation. And so the only type of analysis that the opinion really undertakes to justify this massive upheaval of this 14th Amendment decision is this skewed and biased historical treatment of the origin of abortion rights in American law.
And he finds nothing to convince him, nothing. I tell you that a right to abortion was known to early Americans. So there you go. Like it couldn’t be compatible with the 14th Amendment because you know, at the time of the passage of the 14th Amendment or the writing of the Constitution or the founding era, abortion rights were not codified in law.
Rebecca Markert:
The thing that frustrates me too is just, he starts off with the, well, you look at the text of the Constitution and there’s no enumerated right to abortion. So you have to move to the next step and just this idea that like, well, it doesn’t explicitly say abortion in the constitution, so you don’t have a right. Like how many other rights then are at risk because they’re not explicitly written in the Constitution?
Alison Gill:
And that feeds in well to the idea of substantive due process, which I think is a really important thing that we should discuss here.
So the 5th Amendment and the 14th Amendment both talk about the right to life, liberty, and property cannot be deprived without due process of law. So when you’re talking about typical due process, you’re talking about the operation of law as it’s, there has to be a process under the law. So I’m gonna make up an absurd example just to say like, draw line between due process and substantive due process.
So I don’t know, let’s say there’s a law that Arkansas invents that says everyone whose name is Bob must be shot. Okay. So it’s crazy, it’s ridiculous. But so the normal due process would say, there’d be like a process where you’d go to court, you’d have to like show your documents and you know, they’d have to consider whether, look your birth certificate and see if your name is actually Bob or not. And you could maybe make an argument saying, well, they would not let me submit my documents and therefore I did not get due process., right. Cause I was not allowed to submit my documents. Fine.
Substantive due process looks at the government’s authority to sort of impinge on unenumerated rights. So for example, people have a right, not to be summarily shot by the government. They do, can’t be, you know, that’s not written anywhere, but that’s something that is understood in our nation’s history and traditions. So that’s substantive due process.
And over time it’s sort of come to mean different things. One of the arguments we hear from the more conservative lawyers, justices sometimes is that, you know, this is, has the potential to be broadened in such a way that it’s unrestrained and it just allows unfettered judicial sort of, um, rule making that can just make up and add new rights. And there’s no constraints on it. And you know, we have some history of that before the court, there used to be something called the Lochner Era where substantive process was used to undermine, um, you know, economic laws, usually around labor protections based on the idea of a right to contract. And then that was eventually rolled back.
But then more recently when around Roe v. Wade, and before that there’s been a line of cases about bodily autonomy, private decision making, the right to privacy, all those were recognized under substantive due process. And so, you know, that’s something that this court has this in this case really, really threatened saying that, you know, substantive due process does not apply here because there’s not, it’s not found in our traditions and practices. So that actually, you know, the court’s decision says it is limited to just Roe v. Wade. But in fact, that hits on a whole variety of other issues, which we can definitely talk about.
Monica Miller:
I forgot even who asked me this question, I think it was at the AHA’s annual conference. Does this open the door to interracial marriage being on the chopping block as well as of course, same sex marriage? My gut was like, well, no, I mean, that’s so, so settled. Right?
But then you go like nothing feels sacred anymore. And you know, the lynchpin for me was, well, Justice Thomas wouldn’t banish his own marriage kind of like he would. I think, I really don’t think he’s beneath that. There’s obviously we’ve got like equal protection and other things in place for interracial marriage, but it still makes me feel like when the rule of law is this up ended. I don’t want to make any sort of statement. That’s absolutely this, like, no, that’s not gonna be on the chopping block at some point.
Rebecca Markert:
The problem is with all of these rights that are not enumerated. I mean, you could go through this entire decision and just take out Roe and insert Loving, and you come to the same conclusion. And you can do that for Loving, which is interracial marriage, you can do it for Obergefell, for same sex marriage. You can do it for all sorts of rights contraception in Griswold. They really did set up that framework.
Liz Cavell:
Right? All of the, all of the affirmative rights that the court has ruled on that are unenumerated that have to do with parenting and with marriage and procreation and private sexual conduct and all of these things, they all draw their constitutional life from this concept that Alison is describing, which is substantive due process. And it comes from the 14th Amendment.
No, it’s not something that our founders wrote into some Constitutional Bill of Rights, but it is, it has been held by courts to live in the liberty interest that is protected by the 14th Amendment. There are other places where it has been argued over the decades that the right to reproductive choice unencumbered by government intrusion should live. But the court over the years has for better or worse, given the 14th Amendment and Liberty interests as where that right lives and what the dissent points out in this Dobbs decision is that particularly with Obergefell and marriage equality and, and decisions that came down after Roe and Casey, they cite Roe and Casey for the constitutional support for where the, that protected interest comes from in the constitution.
The opinion tries to assure the American public that like all your other rights that you care about are fine because abortion is just like this special case. But of course the dissent is telling us all very clear eyed, do not be taken in by that. And of course, Justice Thomas in his concurrence says as much, which is this same concept, substantive due process, undergirds all of these other rights. And we should reconsider them when the case arises. It didn’t arise in Dobbs, so, you know, everything’s fine, but this same analysis, like Rebecca said, applies to all of those other rights that we all take completely for granted,
Alison Gill:
Just like, you know, just to get, put a fine point on it. You cannot go back in history and show that there was a right to same sex marriage historically in our country. Like you just it’s impossible. Right. So if you’re trying to develop this right. Based on historical idea, like, like Alito did here, it’s just not possible. Right. So, I mean, we can see the problems and the same thing is true in Lawrence, which it prevented states from banning sodomy. Right? Because they have prohibitions on sodomy, for centuries. So it’s the same sort of thing.
All these rights are at risk and the court’s sort of assurances otherwise are very disingenuous, especially when the line they draw about fetal life is just so feeble. It was so feeble.
Monica Miller:
Yeah. It really was like, that’s the, that’s the basis that you’re gonna distinguish this. It boils down to those rights, don’t kill fetal life? Like that’s not even a distinction. That’s just so–
Liz Cavell:
Let’s explain what we’re talking about. So what did the court say that makes this decision overruling Roe different and why we should all not panic that this analysis could be applied to our other cherished rights.
Rebecca Markert:
In the opinion, Alito writes: "Finally, the dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell. But we have stated unequivocally that ‘nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.’ We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life.’"
Liz Cavell:
Right.
Rebecca Markert:
So one of the things though is that we can’t take Alito at his word here. I mean, obviously Alito and his arch conservative colleagues on the bench were put there to reverse Roe, but they’ve also been opposed to not only abortion rights, but contraception, same sex, marriage, sexual intimacy, all of that. And in fact, Alito has been making these arguments that these rights lack explicit reference in the constitution and lack historical recognition for years including in his dissent in Obergefell.
Monica Miller:
And let’s not forget Justice Thomas in every single Establishment Clause case says that the Establishment Clause doesn’t even apply to the states. So he would get rid of bypass, substantive due process and go to the heart of the 1st Amendment and gut that out and say, California can establish the church of Zion and Nebraska can set up its own church. It just applies to Congress, because it literally says Congress and yeah, I don’t trust any of them.
Rebecca Markert:
Well, and those are two peas in a pod because just two years ago, in a case involving Kim Davis, who was the infamous Kentucky clerk who refused to issue marriage licenses to same sex couples, part of that litigation Alito and Thomas wrote a statement blasting the same sex marriage decision from 2015.
And here I have the quote that they wrote back then, just two years ago, they wrote “by choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the 1st Amendment and by doing so undemocratically the Court has created a problem that only it can fix until then Obergefell will continue to have ruinous consequences for religious liberty.”
Liz Cavell:
Like you can just see the draft sitting on Alito’s desktop of like his opinion overturning Obergefell. When you read that quote, it is just exactly like the blast language around how wrongly decided from the start Roe was and how unworkable it is and how it’s wreaked such havoc on the nation. Meanwhile, everyone in the world, except for this super arch conservative minority, are living peacefully under Roe and Obergefell. And they’re just living in this alternate reality and they have the power to inflict it on the rest of us and they do. And they will, when it comes to Obergefell and marriage equality.
Alison Gill:
Yeah. I do wanna say one thing about that though. I mean, you know, it is definitely at risk. I think that there are some reliance interests that have to do with marriage and like contract, you know, between people that might at least preserve it in some instances, but that’s like a very small silver lining.
Monica Miller:
I mean, what I don’t understand is like the, like, you know, like the rape and incest stuff, like would they, if their own like daughter or wife or some like, like, would they actually be against those people getting abortions or do they just think that they’re exempt? Like I can’t figure out, you know what I mean? Like if they would apply these to their immediate family, these, these rules, these things that they would subject to the rest of America, like, do you think that, or do you think that they just know that they’re above all this and they have means and money and power to get around whatever inconvenience.
Liz Cavell:
They are so outta touch, the conservative movement loves to just blast all the liberal people in their ivory towers. Nobody is in the bigger ivory tower than like the radical conservatives on the United States Supreme Court. They just wax on these issues and it is just so divorced from the reality of people’s lives. And not only do they not get it, it’s like they don’t care.
Monica Miller:
It’s like, let them eat cake. It has that Versailles feeling of just like let them all fend for themselves, drop the babies off. Or, you know, at the, at the places just, I don’t wanna diminish those as options, but let’s be clear. Those are very much like last resorts. Like no woman, no person wants to, to give birth just to anonymously drop it off at a doorstep. Like that’s no, that’s not a plan. That’s like, that’s a last resort. And then good thing that those places exist, but it is hard enough to get to the adoption.
You know, there, there, there are more children that need adopting than there are people that are adopting. And so you’re, they’re not even factoring in that aspect of it like that adoption centers might not even be able to take all the children that will come out of this ruling.
Alison Gill:
The dissent points us out too. The vast majority of people that are forced to give birth when they don’t want to, only a small percentage actually do give the child up for adoption. Most of them are forced to parent, even though they object to, you know, having a child in the first place. Which is certainly not good for our society.
Monica Miller:
But that makes logical sense. Like it would be gut wrenching to carry a, you know, a child, Rebecca and Liz, you guys can maybe speak to this, having had your own, but like, I am imagine that there’s a strong biological, like want to not drop off your child and like that the trauma and the experience of doing that would ruin someone’s life.
Liz Cavell:
Well, it’s also just like the majority opinion is just like, we’re here. We are talking about some real world things that have to do with the fallout of this decision and how it’s gonna transform society and women’s participation in society.
And the opinion just pretty clearly says none of those things matter. The Roe court was wrong to think about societal impacts when it decided this issue and like, we’re not gonna be swayed by that. They couch it as like this we’re gonna return this to the people’s elected representatives to put this controversy where it belongs. And the majorities that we are working tirelessly to pervert in our favor can just do what the people want when it comes to abortion. But we’re not going to even think about the consequences of a world where access is restricted.
They just set it to the side and say like, "oh, we’re above it all because we’re just, you know, we’re not the activist court that’s gonna legislate on abortion," but like right here, it is doing the most activist thing that a court has done in recent memory.
Alison Gill:
Well, that gets us sort of into the stare decisis conversation
Liz Cavell:
Well what’s stare decisis? That’s not an American legal concept.
Alison Gill:
It used to be a concept in the law where the court tries to keep in place old you know, decisions, unless there was substantial reason to change them, like a change in the law change in facts and circumstances since you’re supposed to be bound by your previous decisions, including the Supreme Court. But now I think that’s no longer part of American law. Is that right?
Liz Cavell:
Right. Like this is such a just bizarre and just rapid, just transformation of the way that SCOTUS does its work. Like even just within this last term, there has been so much upheaval in just the court, overturning its own precedence that the current makeup of the court, as the dissent puts it, despises and has the votes to do away with, it’s not the norm.
And this kind of goes back to when we were talking about the bar exam questions. Like the reason why the bar students taking the bar are like, "um, what?" Because you wouldn’t expect that like from the time you start studying for the bar, till you actually take the bar three months later for like entire bodies of law to be–
Monica Miller:
Constitutional rights, constitutional rights to be upended! And then they completely change all of a sudden, like all the states are allowed to have guns.
Liz Cavell:
Unfortunately, it’s not just abortion, but like there, you’re seeing this upheaval across the board in lots of different areas of constitutional law and Dobbs is the most just gut wrenching and egregious example for all of us to illustrate this. But the law is not supposed to change on a dime when the makeup of the court changes.
The whole principle of stare decisis is that our courts follow the past precedents of the courts that came before it, even when there’s a disagreement in the ideological, you know, viewpoints of the judges, they’re supposed to be bound pretty hardcore by past decisions of the court. And if they’re going to overrule past decisions, there’s a whole analysis that’s supposed to take place and they’re supposed to be a reason for it. Not just, it was wrong from the start. And I finally got my seat in this court and I’m gonna do something about it.
And that is because we want to live in a society where things are predictable and the law doesn’t respond to individual personalities on the court. It builds as a body over time and develops upon itself. And this is just whiplash in all these different areas of Constitutional Law.
Monica Miller:
And that’s also the importance of the Casey decision coming after Roe is that it, Casey did the analysis. These conservative justices are claiming that like they needed to do, like Casey established that Roe satisfied like the constitutional strictures and is like a precedent about precedent. But like, we’ve, we already decided that like upending Roe is, is too late by the time of Casey. And yet here we are well past Casey now with, with Roe being overturned, I don’t know how you can really square the two.
What, how much of a right do I really have if you, you know, cut it so short, but at least you’re still saying I have the right. And I think that’s the difference between Robert’s concurrence and the majority is of course, him saying that he wouldn’t have gone that extra mile to overturn the right, but to have an entire right. We don’t have that many constitutional rights.
Alison Gill:
I think maybe you’re, you’re also pointing to something really important, which is the court’s blinkered view of what reliance means because here, you know, the court would be more reluctant to take away a right it says if it, if impacted like property or money or things like that, that are tangible, but like millions of women and our society itself is built around this right existing. It affects people’s choice of careers. It affects family formation. It affects what, you know, doctors are trained and where it impacts our entire medical system. It’s like whole fields of law are impacted by the decision. And now they’re overturning it at a whim and they’re saying, oh, there’s no interest here because nobody owns property. I guess no other, the fact we’re talking about women’s bodies, they don’t own those right?
Liz Cavell:
Not yet
Monica Miller:
Yeah. Next step!
Alison Gill:
Yeah. Well, anyway, you can see the ridiculous stance.
Rebecca Markert:
It is frustrating when he’s talking about stare decisis, because he then sort of equates what they’re doing here in taking away a right to all of the other great cases that other courts have overturned precedent to expand rights. He writes that some of our most important constitutional decisions have overruled prior precedents because you know, when we’re interpreting the Constitution, stare decisis is at its weakest.
And then he talks about Brown versus Board of Education, repudiating, separate but equal. And he’s basically like, we’re just like them, right. And West Virginia versus Barnett ruling that public school children cannot be compelled to salute the flag. He’s taking those issues and saying, look how we’re writing this wrong. Just like they did.
Liz Cavell:
Yeah. We’re heroes,
Monica Miller:
Just like, just like Brown versus Board. It really turned my stomach to think that they think that, that, that they’re, that they’re doing something like Brown versus Board. And then in the same breath, Thomas’s opinion is like, oh, we’re gonna do away with all these other rights too. Like they’re, you know, like–
Liz Cavell:
I mean, that is full trolling, in my opinion, it’s like, oh, don’t tell me we can’t overturn decisions. Look what we did in Brown versus Board Education. Libs, you love that.
Monica Miller:
Exactly. I think you’re right. No, I really do. I don’t think that this is like him being like, oh, this is some precedent that I can cite. That’s–
Liz Cavell:
No, it’s all bad faith.
Monica Miller:
And I don’t even think it’s persuasive. I don’t think he’s even trying to persuade us. Like, you know what I mean? Like I sometimes am writing to persuade a conservative judge. Like I want them to see it my way, but I don’t actually think he gives one iota if we care. If, if we’re persuaded by the decision it’s that he is totally trolling.
Liz Cavell:
Agreed.
Rebecca Markert:
Should we talk about what we like from the opinion? Which is the dissent.
Obviously like the dissents, this term have been on fire, but this dissent was particularly amazing because it was a joint dissent written by all three justices, Justice Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan. And it was an amazing dissent, scathing dissent. I was joking on Twitter the other day that lately, when I’ve been reading these dissents, I’m like highlighting everything. Like every word it’s just like highlight all the text.
But one of the things that really struck me when I was reading, it was a line that they wrote that said "after today, young women will come of age with fewer rights than their mothers and their grandmothers had." And when Dobbs came down, my thought immediately went to my daughter who’s eight years old. And I thought in my lifetime, I had more constitutional rights than she will have in hers. And thinking about it makes me cry.
Monica Miller:
It’s really like, it’s a really jarring feeling to realize that this is a generational thing that like the next generation is not better off in terms of rights like, that’s not how rights usually work. They’re linear. They go up like we get more.
Rebecca Markert:
And as a parent, what you want for your kids is a life that was better than yours. Like, I didn’t wanna say, Hey daughter, like go forth into the world and have like, things be shittier than I had. That’s not what you want as a parent. And so that line, I really thought just really struck to the heart of it too, like exactly what we lost and how frustrating it is when we’ve seen all of these strides with, you know, the first woman VP in history. And women are making all sorts of strides in the last well in my lifetime.
And now, you know, I was proud to take her to the polls, to vote for the first actual woman candidate who was taken seriously for president. And then, you know, celebrated with her when we saw Kamala Harris take the oath of office and become the first woman VP. And now I have to sit there and say, but just kidding, all of that. We’re just gonna be taking away all those strides and really you’re less than you were a couple of days ago.
Alison Gill:
Can I just add a note of hope because this is sort of, I know, that’s really sad, but like, you know, Congress could pass the Women’s Health Protection Act. It already did pass through the house. It could pass the Senate. It might not do it this year, but it is absolutely conceivable that they could put in place nationwide statutory protections for abortion access. Especially if this elections turn out really well and are able to make that happen.
So I just wanna flag that, you know, this is a terrible decision. It’s gonna have a ton of negative repercussions. However, there are things that can happen. And I think what we have to do now is make those happen because that’s gonna be more possible than changing the Supreme Court immediately.
Liz Cavell:
Right. But on that note court reform needs to be a serious part of the conversation, and like legislators who just refuse to support proposals for court reform two weeks ago may be able to be convinced of different positions today. If they’re not, they need to be replaced by elected officials who are, because the fact is we don’t want this and we shouldn’t have to take it. Like we shouldn’t just have to take with these six people who are just so out of step and care so little about us and all the people that are most affected by what they do. We shouldn’t have to just sit here and have our lives and our destinies just completely controlled by these six lunatics.
Rebecca Markert:
Well, and I keep going back to Thomas Jefferson’s sinful and tyrannical quote. And of course he was talking about just government funding to religious organizations and not being compelled to do that. But I feel like sinful and tyrannical just describes the US Supreme Court to me right now in what they’re doing. And the majority of this country supports abortion rights. And to overturn that, like we’ve said on a whim and go against what the majority wants is just so striking to our democracy.
And like Liz says, we have to do something about court reform, contact your legislators, go to the polls because that’s really the only way we’re going to correct this ship.
Liz Cavell:
Court reform can’t be the pie in the sky thing that it’s like, well, that’s the dream, but we know it’s never gonna happen. It’s like, no, we control what the court jurisdiction is, what its makeup is, how many members it has, whether or not it’s bound by a code of ethics. Hello, like the bare minimum that we all abide by in our professions. We control that as they were so happy to flaunt in this opinion, everything should go to the democratic process. Well, it’s like, okay, how about your jurisdiction, your code of ethics, your own ability to be on the court and for how long, and also with how many other justices and how you serve.
We don’t have to just sit here and live our lives based on however, these six people say, and that’s how it’s gonna be for a generation. And it’s, I don’t know what it’s gonna take beyond this, but I hope that some of the silver lining/fallout from Dobbs and this whole term is that the American people start to view and elected officials start to view court reform as something that is within our reach and within our power and a priority.
Rebecca Markert:
And it’s not pie in the sky, it’s been done before. The makeup of the federal bench has changed before we’ve done it before it can be done again.
Liz Cavell:
Right. There’s nothing magical about it.
It’s been like held hostage so that this decades-long crusade could stack the courts in the way that it has, but there’s no reason why even the lower federal bench shouldn’t be staffed out more and funded more. And that would expand just naturally administratively the number of courts and the number of judges. You know, we wouldn’t have this like skewed balance on the court. If we were staffing the courts as often as is necessary instead of every, you know, 30 years or whatever it is.
Alison Gill:
Yeah. We also wouldn’t have the problems like in Texas where we just have one particular judge that everybody can forum shop to get their terrible decisions from. You know, so that’s another issue. If we can increase the number of judges in the lower courts, we can fix those where we have those real discrepancies in law. Well, there’s also state laws, you know, so get out support your state lawmakers. I mean, it’s now returned to the states. So vote!
Rebecca Markert:
State elections and state judicial elections, all of that matters more now than ever before. And people should get involved in their local politics.
Liz Cavell:
Yeah. And I do have to just like quote, because I, I loved it. I hate it, but I loved it that, that kind of drop line in the, at the end of the dissent "with sorrow for the court, but more for the many millions of American women who have today lost a fundamental, constitutional protection we dissent."
Which is our podcast and why we are here. And just made me feel happy that I had a place to scream about this.
Monica Miller:
I was thinking the same thing yesterday about this. And I was looking forward to talking on our podcast and I was like, is this like therapy? Because you know, there’s only a few of us that really even are like, have been as immersed in these issues as we have, and, and our colleagues, but the other side is so vast and there’s so many of our opponents and it can be like, and also because we’re not our, our, our little like nook and cranny of church state separation has not even had that much traction within like the democratic side of things. And so we sometimes feel kind of silent and isolated when we lose our cases. Like no one else really knows that, we’ve suffered a big loss and we just, we’re fighting so hard for these fundamental aspects of our government to stay intact.
And so, you know, like part of this ruling does have that sense of like, okay, now other people are like aware and care, but it’s really nice to just talk to you, women and like, you know, see how you process the decision and, and if it was similar to me, and I was also grateful when they said we dissent, cause I was like, yay, that’s us.
Rebecca Markert:
It was a very empathetic way to end this horrible decision. And also just to have the ability to commiserate with Justices of the Supreme Court, who obviously were trying hard to not have us be in this reality. I was just really grateful for that sentence.
Liz Cavell:
That’s it for today’s episode, I’m Liz Cavell
Monica Miller:
I’m Monica Miller.
Alison Gill:
I’m Alison Gill
Rebecca Markert:
I’m Rebecca Markert.
Please follow us on Twitter and on Facebook, find out more about the podcast online we-dissent.org. We Dissent is a joint production of the Freedom From Religion Foundation, American Atheists and the American Humanist Association. It is hosted by attorneys Liz Cavell, Alison Gill, Monica Miller, and me, Rebecca Markert. Special, thanks to FFRF law student intern, Mallory Nordin who assisted with producing this episode. Other production support comes from James Phetteplace and Greta Martens, audio engineering provided by Audio for the Arts based in Madison, Wisconsin.
Thanks for listening.
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