Given that records from the 1800s are naturally less accessible, early American norms discouraged the discussion of sensitive social issues, and legislatively, recognition of a right to abortion could look the same as merely declining to restrict it, this is a very tall order. This logic essentially requires explicit acknowledgment by 1800s society that something was a constitutional right for it to now be protected by the Constitution. Instead, the legislature could have criminalized it but chose not to (for some unknown reason). There are additional nuances to the Dobbs logic that further constrain courts from recognizing constitutional rights.įirst, Justice Alito argued that the fact that early-stage abortion was not criminalized in early 1800s America does not mean that society felt women should have access to it. No amount of societal change, scientific advancement, or recognition of past injustices would allow Americans any rights beyond those that a small group of white, property-owning men explicitly awarded them 200 years ago. Under this logic, even if there were societal or legislative agreement that abortion is a constitutional right from the late 1800s to the present day, it’s possible that there would still be no constitutional right to it. By discounting history after the ratification of the 14th Amendment, the Court limited constitutional protection to only those rights that were recognized in the earliest days of this nation - before women and people of color were able to vote, own property, control their earnings, serve on juries or as lawyers, or virtually any other hallmarks of full participation in society. This is an incredibly troubling view of constitutional protections. Post-1868 history is allowed one paragraph compared to approximately eight pages of pre-1868 historical analysis. The fact that in 1868 (when the 14th Amendment was ratified), 75% of states criminalized it. What exactly does this mean? According to the Dobbs decision, relevant sources for gauging whether abortion is deeply rooted in history include:Ĭases and writings from 13th, 17th, and 18th century England Ĭases and legal manuals from colonial and early 1800s America and Specifically, Justice Alito wrote that for a right to be protected by the Constitution, it must be either explicitly spelled out in the text or “deeply rooted in history and tradition.” The crux of Dobbs is a highly constrained and antiquated view of what constitutes a fundamental constitutional right. Read Our President's Statement on Dobbs How Dobbs Takes Us Back In Time Meanwhile, a joint dissent authored by Justices Breyer, Sotomayor, and Kagan argued that the Court had stripped women of all rights, thereby destroying lives, curtailing women’s “status as free and equal citizens,” and most negatively impacting women of color and limited means. However, Justice Thomas undermined this assertion by penning a concurrence calling for a new look at the decisions protecting all the above rights, and more. Justice Alito maintained that, contrary to the fears of many civil rights advocates, this decision had no bearing on other unenumerated rights (rights not specifically spelled out in the Constitution but nevertheless recognized as fundamental) such as marriage equality, same-sex intimacy, and contraception access. Wade was decided, but also looking almost exclusively at reproductive rights from the lens of the mid-1800s and earlier to determine whether the Constitution confers a right to abortion today. Writing for the majority, Justice Alito stated, “procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.” In so doing, he and four other conservative justices turned back the clock - not only essentially sending Americans back to a time before Roe v. Jackson Women’s Health Organization, overturning the constitutional right to abortion. On June 24, 2022, the United States Supreme Court released its decision in Dobbs v.
0 Comments
Leave a Reply. |