OCT 27

18: OCT 27

Assigned

• Tribe, Lawrence. "Deconstructing Dobbs" (1st half, 1-9)
• Supreme Court of the US, "Excerpts from the Dobbs Decision," (13-29) (recommended)

Tribe, “Deconstructing Dobbs”

• Concerns: 10 year old rape victim in Ohio; criminal penalties for doctors, no IVF, Texas style enforcement, criminalizing abortion seeking?

• The jurisprudence:

• Majority makes Roe and Casey look like isolated precents, but not so.

• ”Eggregiously wrong”? In what sense? (Mention interpretive difference.)

• 9th amendment: enumeration of rights isn’t exhaustive.

• Is limiting the option of pregnant women a form of sex-based discrimination?

• Jurisprudence on Roe recognized states interest in protecting fetal life, contrary to Dissent’s view.

Group Discussion: New liberties: Determining Unenumerated Rights over Time

• How should we decide on unenumerated rights?

Some details from Dobbs

• What was wrong with Plessy v Ferguson? Segregation was deeply rooted in our tradition. Other decisions: treatment of women, tolerance of non-cis-gendered identity.

• Roberts’ alternative (11): judicial restraint.

• Dissent: opening claim at 13,

• Concerns:

• prohibition of travel, possibility of Federal ban

• Basic liberties: 17 “protecting autonomous decision making over the most personal of life decisions.”
• Historical record: 19th century criminalization of abortion was short term change, common law not so harsh on “pre-quickening” abortion. 21.
• On interpretation: 24; response to conservative concerns 25.
• Tough issues not decided: When does a women’s right to her life “kick in” 28

1st Small group discussion of basic liberties

• Body, Bodily Autonomy, and Physical Intimacy:

• In a free society, you should expect to have a great deal of control and decision-making about your body, your health, and intimacy. Some of these liberties are covered by your due process rights, which place rules on the condition under which you can be incarcerated, especially prior to a trial. But many other bodily autonomy rights are not specifically enumerated as basic liberties. Which of the following hypothetical laws would you not want a simple majority to make actual?

• Examples: Which of these laws would violate a "basic liberty" (something that should not be decided by majority rule?) Can you think of more examples? More "maybe not" examples?

• A law allowing discrimination against women for hiring to jobs deemed too hard for women.
• Pumping a person’s stomach for drugs as part of a criminal investigation.
• Forced sterilization, forced reproduction.
• A law prohibiting vasectomies or requiring men to reverse them.
• A law allowing anyone doubting a student athlete’s eligibility for a team sport to demand “genital inspection” (actual proposed law).
• A law prohibiting you from receiving gender affirming care from a physician.
• A law prohibiting tattoos.
• A law forcing a person to get an abortion.
• A law requiring end of life medical care against a person’s wishes.
• A law requiring blood donations.
• Laws prohibiting same sex marriage and intimacy, and contraception.
• A law requiring you to notify the government when you travel or restricting travel.
• A law requiring cis-gender conforming dress and behavior in public.
• But maybe not: A law prohibiting sex with minors or non-human animals.