Jul 14, 2022
A nonpartisan group of legal experts warned Thursday that the "logic" of the U.S. Supreme Court's 6-3 ruling in Dobbs v. Jackson Women's Health Organization--which stated that the right to abortion cannot be protected under the 14th Amendment because it is "not deeply rooted in the nation's history and tradition"--puts the country on a "dangerous backward path."
"The requirement that rights be 'deeply rooted' is a sleight of hand that, if adopted more broadly, would sabotage the developing body of civil rights."
Before the high court's reactionary majority took a sledgehammer to reproductive freedom last month--overturning Roe v. Wade in a decision that experts say will have deadly consequences and violates international law--access to legal abortion care was safeguarded under the 14th Amendment's substantive due process clause.
As Lawyers Defending American Democracy (LDAD) pointed out in a statement released Thursday, Justice Samuel Alito's majority opinion "reaches back in history as far as the 13th century where it relied, in part, on the opinions of select misogynists to suggest that, since abortion was essentially illegal for almost 800 years and only legal for the last 50, there is no such 'right deeply rooted in the nation's history and tradition.'"
Fears that additional constitutional rights are now at risk of being ripped away have only grown since Justice Clarence Thomas wrote in his concurring opinion that "in future cases," the nation's chief judicial body "should reconsider all of the court's substantive due process precedents."
Thomas singled out the landmark cases of Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges, which enshrined rights to contraception, same-sex intimacy, and marriage equality in 1965, 2003, and 2015, respectively.
Hours after the Dobbs ruling was handed down, Texas Attorney General Ken Paxton said that he is "willing and able" to defend a ban on "sodomy" if the GOP-controlled Legislature reinstates the state's long-unenforced 1973 law criminalizing same-sex relationships or passes a similar measure that might give Thomas and his ideological allies an opportunity to overturn Lawrence.
Days later, Alabama Attorney General Steve Marshall cited the Dobbs decision to argue that a federal court should stop preventing the state from enforcing its ban on gender-affirming healthcare for trans youth.
"Justice Alito's standard," LDAD warned, "threatens any implicit rights that have been held to constitute liberties based on the 14th Amendment's substantive due process clause."
"There is a certain incongruity in justifying the revocation of abortion rights based on the common law that predates the Constitution, or for that matter, the Declaration of Independence," noted the organization, which is made up of distinguished lawyers and professors, constitutional law experts, current and former bar association leaders, and state and federal judges.
"The purpose of these founding documents was to elevate and protect rights against an over-reaching government, despite the fact that they chiefly focused on enumerating those rights of exclusively white male property owners in the new America," the group added. "The common law prior to 1776 referred to subjects of the Crown where 'individual rights' of commoners were largely non-existent."
As LDAD explained:
American conventions that are "deeply rooted in the nation's history and tradition" include: genocide and theft of property against Native Americans; slavery; Jim Crow laws; Chinese exclusion laws; violence against women; as well as discrimination against others, including Asians, Native Americans, African Americans, Jews, Hispanics, and LGBTQ+ individuals. The logical extension of the majority's argument is that modern human rights law and civil rights law cannot withstand scrutiny because the injustices that gave rise to these laws are "deeply rooted in the nation's history."
The requirement that rights be "deeply rooted" is a sleight of hand that, if adopted more broadly, would sabotage the developing body of civil rights recognized in the United States since WWI. The right of women to vote only dates from 1920, Native American voting rights from 1948. The 15th Amendment, ratified in 1870, provided the right of African American males to vote, but that right was not really effectuated until the 1965 Voting Rights Act. Yet in the past decade, the Supreme Court has essentially gutted that law in its decisions in: Shelby County v. Holder in 2013, Abbot v Perez in 2018, and last year's Brnovich v Democratic National Committee.
It wasn't until 1948 that the U.S. adopted the Universal Declaration of Human Rights, LDAD observed.
"Women's rights to employment and protection from harassment and discrimination in the workplace are rooted in the 1960s-1970s, and have advanced from there," the group continued. "Other privacy rights including: access to contraception, to engage in consensual sexual acts out of wedlock, to engage in consensual homosexual acts, interracial marriage, gay marriage, and freedom from discrimination due to disability are all rights recognized in the last 75 years."
"Defining rights that people should be accorded today by the selected writings and prejudices of 13th-century men and by ancestors who denied rights to all but property-owning white males for centuries should be abhorrent today," said the group. "That the majority of the Supreme Court did so is as disheartening as it is shocking."
She was echoing an argument made recently by New York Times opinion columnist Jamelle Bouie, who wrote: "Congress can strip the court of its ability to hear certain cases, or it can mandate new rules for how the court decides cases where it has appellate jurisdiction. And as I recently mentioned, it can even tell the court that it needs a supermajority of justices to declare a federal law or previous decision unconstitutional."
Jayapal, chair of the Congressional Progressive Caucus, called for the swift passage of legislation to prevent a few right-wing justices from further "wreaking havoc on our country."
LDAD connected the unelected Supreme Court's crusade to stamp out civil rights gains to GOP lawmakers' efforts to censor the teaching of U.S. history and disenfranchise communities of color that tend to vote Democratic through a tidal wave of gerrymandering and voter suppression laws.
"With each new restrictive state law and court decision that ignores the cruelty of their impacts, the proponents perpetuate a modern version of ethnocide," said LDAD. "The initiatives in Florida and Texas, which are also being emulated in other states, seek to eliminate all discussion of the lives and literature reflecting the experiences of non-white ethnicities and LGBTQ+ people. This includes, but is not limited to, historical phenomena such as genocide, slavery, harassment, and discrimination."
"The laws seek to purge libraries and school curricula as if these authors, artists, and people never existed," the group continued. "The cultural exclusion is further exacerbated by an aggressive national effort to deny ethnic minorities representation in government and the ability to exercise their right to vote."
LDAD stressed that whitewashing history "by denying the rich contributions of the diverse people who comprise our nation will not lead us to a more just society or a more perfect union. It will lead to an ignorant and immoral citizenry without the ability to understand the ramifications of tough decisions or engage in critical thinking."
"The concept that all persons are entitled to equal rights and dignity under the law, even if their rights have never been 'deeply rooted in our nation's history and tradition,' has evolved," the group added. "It is the 21st century, and it is time for that to be recognized by this Supreme Court."
Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel free to republish and share widely.
We've had enough. The 1% own and operate the corporate media. They are doing everything they can to defend the status quo, squash dissent and protect the wealthy and the powerful. The Common Dreams media model is different. We cover the news that matters to the 99%. Our mission? To inform. To inspire. To ignite change for the common good. How? Nonprofit. Independent. Reader-supported. Free to read. Free to republish. Free to share. With no advertising. No paywalls. No selling of your data. Thousands of small donations fund our newsroom and allow us to continue publishing. Can you chip in? We can't do it without you. Thank you.