SFE 22

12: FEB 22.

Assigned

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

In-class

• Finding our language for Basic Liberties

Lawrence Tribe, “Deconstructing Dobbs”, NYRB, Sept 22, 2022

• Concerns: 10 year old rape victim in Ohio; criminal penalties for doctors, no IVF, Texas style enforcement, criminalizing abortion seeking? Point: Dobbs is creating lots of uncertainty in the law.

• The jurisprudence:

• Roe and Casey had created settled law, contra majority.
• Majority makes Roe and Casey look like isolated precedents, abberations, but not so.
• Criticism of the court's treatment of the 9th amendment:

• 9th: enumeration of rights isn’t exhaustive. problem of "unenumerated rights". Constitution says they exist, but can't list them. Invites "living document" approach. see p. 3.
• But the Majority just say that they don't find abortion among the unenumerated rights referred to by 9th am. Tribe thinks that's an odd claim to make since the 9th just says any (unspecified) rights not enumerated are still reserved to the People.

• Majority decision doesn't say why compelling pregnancy isn't a violation of liberty.
• The court has found unenumerated aspects of other rights, extending 1st am for example.
• Agrees with dissent that travel rights could be impacted, not withstanding Kavanaugh's claim. p. 5
• Reviews the approach to liberty of contract in Lochner Era: SC used to strike down min wage laws on grounds of "liberty of contract".
• Agrees with the dissent that merely saying abortion is different from other rights supported by Roe and Casey (like contraception and same sex marriage) isn't sufficient because they are clearly analogous. p. 6
• Key argument against the decision at p. 7: Dobbs doesn't recognize fetus as a legal person yet allows it's interests to supersede the interests of the legal person who gestates it. Tribe quotes from his one arguments in Roe v Wade that the development of the fetus is continuous and does not offer a clear distinction between potential and actual life.

Supreme Court, Excerpts from Dobbs (13-29)

• From the dissent: Breyer, Sotomayor, and Kagan.

• Opening claim at 13, Roe/Casey engaged in a balance of interests recognizing difference in moral viewpoint.
• In practice, after Casey, states were allowing states to impose some restrictions before viability (but not a "substantial obstacle", prohibition after viability, protecting maternal health after viability.
• Claims that Dobbs: allows state to compel gestation even in cases that endanger maternal health, or cases of rape and incest, severe fetal abnormalities (ex. Tay-Sachs disease). Also, potential for states to prohibit travel, possibility of Federal ban (which means states don't have the right).
• The decision "curtails the rights of women and status as free and equal citizens." Potentially includes other rights: contraception, marriage...
• 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).
• The ratifiers of the 14th am were all men. They did not consider women to be equal members of the society. Since we do, this undermines aspects of their thinking.
• On interpretation: "living document" argument (24); reviews history of using the 14th to strike down miscegenation laws, allow gay marriage. response to conservative concerns 25. Evolution of meaning of "liberty" still tied to constitutional principles. (It won't be "anything goes".)
• Dobbs majority lowers the test of an abortion law's constitutional legitimacy to "rational basis" (lowest standard -- basic liberties use "strict scrutiny"). rational basis standard may ignore maternal health, allow travel restrictions, prevent medical abortion. 28

Finding the language of basic liberties

• For John Stuart Mill, the language of basic liberties starts with freedom of conscience, thought, and discussion. But that's not enough. You also have to be able to live your life according to your own way of thinking, without interference from church, state, or any other coercive power.

• In practice, specific areas of our lives seem to be the focus of liberty, so the "language of basic liberty" might include the way we talk about these area. The integrity and privacy of our bodies, the ability to make decisions about what happens to and in my body. By extension, the privacy of my intimate relationships. But the ability to live my identity publicly requires some toleration of my choices and my identity. Of course, others have freedom of conscience as well. So they may think what they want about me, but enjoyment of basic liberty involves a commitment not to treat others unequally because of our differences.

• 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. How do you respond to the following hypothetical constraints on liberty? Some you may find easier to locate your response than others. Note that. Try to describe your reaction, including reasoning.

• Examples: Which of these laws would violate a "basic liberty" (something that should not be decided by majority rule?) Which of these are easy and which more complicated? Can you think of more 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, tabled).
• 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. (Note diffs among states.)
• A law requiring blood donations.
• A law prohibiting same sex marriage and intimacy or contraception.
• A law requiring you to notify the government when you travel or restricting travel.
• A law requiring you to register with the government to access social media or when you rent a hotel room.
• A law requiring cis-gender conforming dress and behavior in public.
• A law allowing police or others gov't representative to do a "wellness check" on you.
• A law allowing the gov't to remove weapons from your possession on reports of erratic or disturbing reports about you, including disturbing social media posts.
• A law requiring employer's to pay a minimum wage, regulate contracts, etc.

Some “maybe nots”. Maybe these would not violate basic liberties. With these items (assuming you agree), try to develop language for saying why liberty is not violated by the law. If you disagree, try to express your reasons.

• Maybe not: A law legalizing very addictive and deadly drugs.
• Maybe not: Limiting access to dangerous biological agents or radioactive materials.
• Maybe not: Laws regulating explosives and bomb making materials, including surface to air missiles.
• Maybe not: A law decriminalizing sex with minors.
• Maybe not: A law allowing someone to choose to become an indentured servant or slave.
• Maybe not: A law allowing first responders to restraint or detain or medicate a person in a mental health crisis from harming themselves.
• Maybe not: A law prohibiting private companies from imposing appropriate workplace attire rules, and confidentiality agreements.
• Maybe not: A law prohibiting public nudity.