MAR 23

17: MAR 23: Unit Three: Roe, Dobbs, and the Search for Basic Liberties

Assigned

• Kahn Academy, "The Fourteenth Amendment and equal protection" [1]
• Scotus Brief, Dobbs v. Jackson Women's Health Organization [2]
• Alfino, "Interpretation, Political Orientation, and Basic Liberties in the Dobbs Decision" (1-13)
• Supreme Court of the US, "Excerpts from the Dobbs Decision," (1-13)

Kahn Academy, "The 14th Amendment and equal protection"

• Section 1: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

• prohibitions by Federal gov't to potential state actions. Restates 5th ammentdment as applying to states, not just feds.
• "equal protection clause"

• Historical context

• 1868 - after civil war, 13th abolished slavery, 14th responding to "black codes" - statutes that repressed rights of recently emancipated African Americans.
• Supreme Court opinion in Plessy v Ferguson: 1896 - separate train car travel. equal but separate is OK! doesn't violate the 14th amendment. (The textbook example of how stare decisis can't be absolute. Widely viewed as a shameful decision.) Reversed by Brown v Board of Education. Separate is not equal. 1954. Took decades to make progress enacting this decision.
• 14th Amendment key to civil rights arguments. Sexual equality in the workplace. Also pro-life arguments (liberty of the unborn). Quotas in higher education (recent cases pending Summer '23).

SCOTUS Brief, Dobbs v Jackson Women's Health Organization

• June 2022. Mississippi Gestational Age Act. 15 week abortion limit. Conflict with Roe and Casey.

• Majority decision:

• 5 of the 6 (not Roberts) voted to overturn Roe and Casey. Roberts wanted a more moderate approach - allow 15 week bans.
• Stare Decisis - 5 reasons for overruling. Revisits Roe - invoked complicated argument from several amendments. Casey affirms Roe, but focuses only on 14th am. Abortion rights not found in text or tradition (originalism).
• Claims not to impact anything but abortion, which involves potential life. Left standing other decisions that seem to depend on Roe. Contraception, same sex relationships. Thomas went further, court should reconsider "due process" cases. Rec alternative approach.
• Roberts concurrence: Urged more restraint. Throw out the "viability standard" (digression) Accept the Mississippi limit

• Minority decision:

• Major claims

• 1. Majority decision takes rights away from women if they are pregnant.
• 2. Roe and Casey support a long line of settled cases on privacy, private choices about family matters, sexuality, and procreation. (In a way, Thomas might agree, but want to reconsider those.) 50 years of reliance.

Supreme Court, Excerpts from Dobbs (1-13)

• Majority Decision

• Background and context of Roe as departure from history of country. Liberalization was occurring but Roe cut it off. Presents Casey as disputed opinion, not really an endorsement of Roe. Casey was a partial overruling of Roe.
• p. 5: Major statement of ruling. ....not in history or tradition... (new, originalist, standard for "unenumerated" rights)
• Long evidentiary argument to support the major premise about history and tradition. Draws conclusion p. 7/25.
• Discusses Plessy as example of overturning stare decisis.
• Robert's concurrence: p. 11/7: Throw out the viability standard

Alfino, "Interpretation..." main points (1-13)

• Basic Intuitions about liberty and abortion:

• Not unreasonable to say life begins with conception
• Also, unreasonable to deny that liberty and autonomy are constrained without a right elective of abortion.
• Abortion rights is a problem of understanding what basic liberties are. Start there.

• The Dobbs decision:

• The majority determined indirectly that elective abortion isn't a constitutional right by applying an originalist approach to determining unenumerated rights. That approach is in contrast to the "living document" approach of the minority (and the jurisprudence of privacy of the past 4-6 decades. They left open the possibility that the right could be legislated as a statutory right or prohibited.

• Originalism - Unenumerated rights must be part of the history and tradition of the country. Without this constraint judicial opinions are too subjective. Interpreting a contract requires finding language in the contract that speaks to the immediate issue.
• Living document - The meanings of words like "liberty" and "autonomy" change over time. The Framers and Ratifiers intended us to update the meanings of basic terms in light of experience. (Justice Kagan: "We're all originalists." see p. 9 Alfino). Many of our decisions do require applying new meanings or cases not envisioned by the Framers.

• Political Orientation Issue -- In light of our study of the nature of morality, we can't miss the fact that these different approaches to interpretation reflect fundamentally conservative and liberal political orientations. How should we take that into account if finding a solution to conflicts over basic liberties?

Small Group Discussion

• On our initial dive into the Dobbs decision, we now see that the Court engaged the broad question: "How do we interpret "unenumerated rights". In that sense the decision was about more than abortion. More like, "How do we update the social contract (as embodied in the constitution) when new liberties arise?" One group advocates and "originalist" approach while the other advocate a "living document" approach. In a small group discussion, consider what you find appealing or negative about these approaches. Keep a list. You may also want to consult the list of sample laws for next class discussion.