In June this year the Supreme Court vacated Roe v. Wade with an extreme, repetitive, and oddly argued opinion that will, despite assurances to the contrary, threaten a constellation of basic rights that have been built up over the past six decades using the concept of an individual right to privacy and liberty. The majority opinion makes a strong effort to deny the possibility of wider impacts beyond abortion, but that argument is belied by two factors: (1) the very wording of the justifications used by the decision, rejecting the 14th Amendment “due process” protections that underlie so many other Supreme Court decisions, and (2) the concurring opinion written by Justice Clarence Thomas, which actively promotes a broader application of those same justifications.
In the meantime, the same political activists and institutional groups that have brought us to this egregious moment in our nation are following Thomas’s lead, mobilizing not only to use federal legislation to expand the abortion ban nationwide but also to reverse the Supreme Court precedents that legalized contraception (Griswold, 1965, and Eisenstadt, 1972) and gay sex (Lawrence, 2003) and gay marriage (Obergefell, 2015). And neither the majority opinion nor the Thomas concurrence mentioned it, but the same legal logic that they used to overturn Roe could also be applied to once again allow bans on interracial marriage (Loving, 1967); despite the fact that the written dissenting opinion refers to it several times. The dissenting justices noted that the Casey v. Planned Parenthood decision of 1992 reaffirmed Roe by insisting on the “right of the individual” to make the most basic decisions about whether to bear a child, and tied that right not only to abortion but to contraception and to marriage. The previous Supreme Court rulings about those issues, and the rights they recognized, are inherently connected.
In this essay, however, I want to pull back from those potential future reversals in significant rights cases that might result from the June decision in Dobbs v. Jackson Women’s Health. This does not mean that I don’t recognize the very real danger posed by that opinion’s logic. Unfortunately we should also concern ourselves with the tendency revealed by the current Supreme Court supermajority in three cases, to include Dobbs, that were ruled on in the same 9-month session. And no, I am not even referring to such questionable rulings as those that blocked the EPA from enforcing CO2 emissions or OSHA from requiring vaccine mandates in the middle of a pandemic or the State of New York from requiring licenses to carry deadly weapons in public. Those were bad enough, but not nearly all.
There were three cases this session in which the Court majority demonstrated a strong religious bias in favor of their own personal religious beliefs, and, in the process, created serious fissures in the wall of separation between religion and government. Those three cases are the following:
(1) Dobbs, in which the majority opinion not only rejected the right to privacy, but in the process gave primacy to the minority religious view that life begins at conception. Justice Alito’s majority opinion distinctly made it clear that the only reason they considered Roe v. Wade to be different from the other privacy cases, and why they chose to vacate it, is that it involved “protection of fetal life.” But the idea that fetal life needs to be protected is not a universally accepted concept. The original rulings in Roe and Casey had worked to balance the concern about the fetus against concerns about the health and life of the mother. As the minority dissent in Dobbs noted about the new ruling, “To the majority ‘balance’ is a dirty word, as moderation is a foreign concept. The majority would allow States to ban abortion from conception onward because it does not think forced childbirth at all implicates a woman’s rights to equality and freedom.” For them, the supposed rights of a fetus, and even an embryo, eclipses those of the adult mother and her family.
(2) Carson v. Makin, in which the Court majority required the State of Maine to extend its tuition assistance program to include religious schools. In that tuition legislation, Maine had required any recipient schools to be “nonsectarian” in deference to the establishment clause of the First Amendment to the Constitution. The Supreme Court’s majority opinion took the side of the two sets of plaintiffs who wanted tuition support. That means that they rejected both the many past interpretations of the First Amendment and the interests of the taxpayers who would prefer not to support religions other than their own. The individual religious preferences of these six justices, expressed in the Carson ruling, will have repercussions in every state that wants to support private schools without funding specific religious doctrines.
(3) Kennedy v. Bremerton, in which the majority opinion clearly distorted the case record in order to rule in favor of a football coach who had been fired for encouraging his team and other students to join him in a vocal public prayer on the fifty yard line after games. They chose to elevate the “freedom of religion” right of this coach to primacy. iIn effect they ignored the comparable rights of the students and parents who had initiated the action by complaining that they had felt pressured to join in a religious activity at odds with their beliefs. The ruling overturned the 50-year precedent set in Lemon v. Kurtzman (1971) which had stated that the government (and its representatives) cannot advocate for any one religion.
All of these cases pitted minority religious demands against the previously-recognized rights of the larger public to be free of religious doctrines that differ from their own. In such cases the meaning of the First Amendment is clear, or it has been until this Supreme Court session, and the due process clause of the Fourteenth Amendment makes clear that this restriction applies to the state governments as well, in this wording: “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.” The question, then, is why the majority of this Court has so blatantly and repeatedly rejected the long judicial history that has supported the separation of church and state.
The six majority members on the Supreme Court owe their presence there to membership in, and support from, the Federalist Society, an influential judicial clearinghouse that advocates for an originalist textualist interpretation of the Constitution. They cling to this dogma despite many statements from the original authors who supported flexibility in interpretation, especially where individual rights are concerned. As the Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Clearly, at the very beginning, the men who wrote and signed the Constitution would not have wanted it interpreted in an unchanging “originalist” manner or to have a human right rejected because it wasn’t mentioned in the words of the document. But that particular set of original opinions doesn’t seem to matter, not to the Federalists nor to the author of the Dobbs decision.
Conveniently, the general philosophy of Federalist members tends to align originalism with current conservative views on abortion, LGBTQ rights, campaign finance, free markets and deregulation, and low taxes. To advance this broad agenda, the Society provides networking and scholarship support for conservative and libertarian students, lawyers, and judges—and helps Supreme Court candidates with their Senate confirmations. The current Supreme Court majority was vetted and promoted not only by the Federalist Society but also by a variety of “pro-life” and Christian Nationalist organizations.
The result is that we now have a Supreme Court majority that has demonstrated their willingness to force their own personal Christian doctrines on the entire country by endorsing the unconstitutional, in fact anti-constitutional, actions of activist Christian plaintiffs and ignoring the religious freedom rights of the other citizens they had interacted with, among them pregnant women, ordinary taxpayers, and members of other religions. But their willingness to do so was exactly why they were nominated and confirmed.