Reading Dobbs: A Leaked Sneak Peak into a Post-Roe America

Few have asked and fewer will listen, but I have read the leaked majority opinion in DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION[1] and here are my “first blush” three takeaways:

First, this will probably not stop at abortion. The leaked majority opinion is pretty clear that other “unenumerated” substantive due process rights are on the chopping block, as they are certainly not “deeply rooted in this Nation’s history and tradition” to the Court’s current satisfaction.[2] Simply stated, many presently cherished American constitutional rights and liberties do not, facially, enjoy a sufficient historical pedigree to survive the Court’s new penchant for self-reconsideration. The rights to (a) privacy (including, inter alia, choice of private sexual acts, schooling, or contraception methods); (b) vote; or (c) marry a spouse of one’s choice all spring to mind. These have historically enjoyed their “fundamental right” status by virtue of inference and/or other provisions of the Constitution. However, they definitely have not been specifically enumerated within the Constitution and definitely have been explicitly restricted by law in various national periods of explicit discrimination or moralization. They only distinction Dobbs attempts to draw is that abortion is different from the foregoing because it involves “potential life” — though the decision does not seem to contemplate the actual life of actual women, as the upheld “Mississippi’s Gestational Age Act” provides no exceptions for rape or incest.[3][4]. Call me crazy, but I personally would find little comfort in such appeals as a bulwark for a further reordering of American life, especially when “potential life” as pretext has already made me the forced broodmare of my rapist uncle.

In sum, the Court’s point seems plain to me. If there is a dimension of human dignity or liberty not explicitly protected in the Constitution’s text, momentary majoritarian whims — famously unaccommodating to unpopular minorities — will rule the day. If, as the Court asserts proudly, this was the Framers’ goal all along, one might wonder why they employed such inspirational generalities as the word “liberty” in the Fifth / Fourteenth Amendment or enacted the Ninth Amendment to begin with, when, apparently, all they “really” meant to do vis a vis fundamental rights was to make a remarkably short grocery list of specific “no no”s for state action. By the by, if you are thinking your grocery list rights are sacrosanct enough to protect you, the Court has always been pretty flexible on the “no no”s anyways.[5] Some Republic!

Second, if you are a woman or, say, care about women, it is probably a very good idea to become intimately aware of what your state’s “current” laws on abortion are. This is because, Dobbs does not, itself, criminalize abortion. Instead, it will allow the state laws to regulate the topic, without discernible limitation, no matter when enacted or how draconian.[6] Given that some state’s existing abortion laws predate World War II and the American right has made a cottage industry of passing wholly performative abortion laws for fifty years under the presumed “cover” of Roe preventing their grandstanding from meaning anything, this should be alarming. To illustrate, right now in Texas — pre-Dobbs — abortion is banned after 6 weeks into a woman’s pregnancy, which is long before most women know they are pregnant.[7] That is already a pragmatic ban. However, Texas also has a “trigger law” which upon the overturning of Roe — post-Dobbs —will make abortion completely illegal, without exception for risk of suicide, self-harm, rape, incest, or severe or potentially lethal fetal abnormalities.[8] Those “small government” types sure have been busy, huh? This overnight return to absolute criminalization will probably come as a shock to the 29,000,000 Texans, who, like the rest of us, had assumed the “settled law” of Roe was just that. So much for “protect[ing] the interests of those who have taken action in reliance on a past decision,” as Dobbs blithely summarizes the principle of stare decisis before, essentially, ignoring it.[9]

Lastly, and decidedly least important, it seems obvious that the right wing talking point on Dobbs tomorrow will not have anything to do with the substance of the opinion but, instead, exasperated pearl clutching at the leaking of a Supreme Court opinion prior to formal entry. There will be much hand-wringing on this topic and overstatements as to the novelty / gravity of this “existential threat” to the sanctity of the Supreme Court — all of which are going to be designed to deflect attention from the very real impact this decision will have on very real people.[10] While leaking of draft judicial opinions is, in my estimation, very bad and decidedly undesirable, the claim that such a leak has “never happened before” or is otherwise without precedent is objectively false. While extremely rare, “leaks” (in one form or another) have occurred on multiple occasions in the Court’s history, including, ironically, the original Roe decision itself.[11] Do not be fooled by this distraction designed for simpletons and by those desirous of redirecting outrage. The story is the headline, not the footnote.

In closing, it must be said that there is a possibility that the Court’s members have, or will, change their mind prior to entering its final order. However, being realistic, that seems extremely unlikely and we must start to prepare for a post-Dobbs America. What a strange and sad day. To know horror is coming but left to guess only as to the specific hour. However, whatever pain I feel tonight for the abstraction of law in our Republic, it is completely overshadowed by the sympathy I feel for my fellow actual real flesh-and-blood countrywomen. Godspeed. I will do my best for you and all of us.

[1] https://s3.documentcloud.org/documents/21835435/scotus-initial-draft.pdf

[2] Dobbs Majority § II A 1–2 (p. 9–14).

[3] Id. § II C 1, p. 32.

[4] To avoid any ambiguity, the opinion seems openly contemptuous of entertaining any “broader right” to autonomy or self-definition. Id. § II C 2 (p. 34).

[5] See e.g. Roth v. United States, 354 U.S. 476 (1957) (First Amendment right to free speech not absolute, Majority J. Brennan); and District of Columbia, et al. v. Heller, 554 U.S. 570 (2008) (Second Amendment right to free speech not absolute, Majority J. Scalia).

[6] To this end, I highly recommend Five Thirty Eight’s “Undue Burden” summary written two months’ ago anticipating this exact outcome from Dobbs. https://projects.fivethirtyeight.com/abortion-restrictions-by-state/

[7] https://www.the-sun.com/news/3580055/what-is-the-texas-abortion-law/

[8] https://www.texastribune.org/2021/06/16/texas-abortion-law-roe-wade/

[9] Dobbs Majority § III (p. 35).

[10] As always, Ben Shapiro is instructive in pseudo-intellectual vice. https://twitter.com/benshapiro/status/1521307164647825413

[11] An insightful tweet thread. https://twitter.com/jonathanwpeters/status/1521309806430236672