Supreme Court's Dobbs Decision Is SO BAD (How Bad Is It?) That It's Really Really Really Fucking Bad

Welp. Roe v. Wade is dead.

This isn't surprising to anyone who has been paying attention. But it's still shocking.

For half a century, Roe has protected the right to terminate a pregnancy. By the end of June (the end of SCOTUS opinion season), that will be over.

The draft opinion in Dobbs v. Jackson Women's Health comes out and says:

"We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including [...] the Due Process Clause of the Fourteenth Amendment."

The usual suspects are in the majority, with John Roberts remaining the wildcard. "A person familiar with the court's deliberations" (unclear whether it's the same person who leaked the draft) told Politico that, unsurprisingly, Samuel Alito, Amy Coat Hanger, Kegs, Neil Gorsuch, and Clarence Thomas are in the majority that just can't wait to see women dying from unsafe back-alley abortions. Stephen Breyer, Sonia Sotomayor, and Elena Kagan are dissenting. And no one has any idea WTF John Roberts is thinking, which sounds about right.

This is the first time in modern history that a draft opinion has been leaked. And who leaked it and why remains a mystery. But one thing is certain: It's just as bad as we thought it would be.

Sorry, women. Hope you weren't planning on having any rights in the years to come.

Okay, let's talk about just how bad this fucking thing is.

Written by none other than #WorstJustice Samuel Alito, who has no doubt been dreaming of taking away women's reproductive rights since he was still in the womb himself, the draft refers to abortion providers as "abortionists," says Roe was "egregiously wrong," and talks about medieval notions of a fetus "quickening." (Yes, really.)

This piece of garbage, I shit you not, goes back to English common law cases from the 1200s to support its conclusion that women aren't really people with rights. Because obviously nothing has happened in the intervening time that we might want to take into consideration when discussing things like the fundamental human right to bodily autonomy.

Yes, this is just as dystopian, sexist, draconian, and horrifying as it sounds. At one point, Alito compares the right to privacy laid out in Roe to "licens[ing] fundamental rights to illicit drug use, prostitution, and the like." So that's the kind of good faith and intellectual honesty we're dealing with here.

This motherfucker compares Roe to Plessy v. Ferguson, the 1896 case that upheld segregation – because subjecting African Americans to legalized second-class status and legally guaranteeing bodily autonomy are totally the same thing.

There are so many reasons a person may need or want an abortion. And guess what? Unless you are that woman, those reasons are none of your god damn business.

But Samuel Alito and his buddies think it's NBD to be forced to carry a pregnancy to term against your will. And don't you worry, he is all too happy to very condescendingly explain why. Because you see, anti-abortion extremists argue:

"that attitudes about the pregnancy of unmarried women have changed drastically; that federal and state laws ban discrimination on the basis of pregnancy; that leave for pregnancy and childbirth are now guaranteed by law in many cases, that the costs of medical care associated with pregnancy are covered by insurance or government assistance; that states have increasingly adopted 'safe haven' laws, which generally allow women to drop off babies anonymously; and that a woman who puts her newborn up for adoption today has little reason to fear that the baby will not find a suitable home."

And that all makes forced pregnancy totally fine and great!

There's a lot to unpack there, from Alito's discussion of social welfare programs he and his brethren would love to gut, to his complete ignorance of pregnancy and childbirth in the United States and even his delightful non sequitur about medical care being "guaranteed" "in many cases." We have the highest maternal mortality rate of any developed nation, a worse racial disparity in maternal mortality than before the Civil War, no paid maternity leave, no universal healthcare, no universal childcare, and more than 11 million children already living in poverty.

At one point, this lovely opinion refers to how states regulated abortion in the 1860s, when the 14th Amendment was adopted, as "the most important historical fact." Because the fascists on the Supreme Court are pretty open about wanting our country to be limited to the rights conferred on rich white men at our nation's founding.
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”

Is Alito concerned that his opinion will result not only in abortion restrictions but full-on criminalization of abortion? No. No, he is not.

And let's not let an opportunity to infantilize women pass us by.

"Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so."
Oh, well in THAT case, now that women are legally allowed to vote, it's totally cool for an unelected body to take away our rights!

Please ignore them gutting the right to vote, it's not important right now.

Alito also goes out of his way to say that Roe has always been wrong, just to really make it clear how much he hates us females having rights.
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”


Of course, all of these extremist judges are going to pretend that they are just very serious about doing their jobs and not legislating from the bench, and that is why they are going to overrule precedent that's half a century old and has changed millions of lives for the better.

“We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly. We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”

Where's that deep-seated concern about "JUDICIAL ACTIVISM" now, FedSoc shitheads?

Any terrible opinion about abortion, obviously, must include something about "potential life," just to really drive home the point that these people find the idea of "potential life" that much more important than the lives of living, breathing women and pregnant people.

"What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call 'potential life' and what the law at issue in this case regards as the life of an 'unborn human being.'"

You want to talk about "potential life," Sam? Just wait until I tell you about my proposed ban on male ejaculation except when in furtherance of a notarized agreement to procreate.

Alito also writes that the other due process cases like Loving v. Virginia (legalizing interracial marriage), Skinner v. Oklahoma (no involuntary sterilization), Griswold v. Connecticut (legalizing birth control for married women), and Eisenstadt v. Baird (legalizing birth control for unmarried women) are different because "none of these decisions involved what is distinctive about abortion: its effect on what Roe termed 'potential life.'"

This, of course, entirely ignores reality, where anti-woman extremists have been happily going after birth control for years, often using the "potential life" bullshit. In Burwell v. Hobby Lobby, a less fascist version of this decision, the Court rubber-stamped Hobby Lobby deciding certain forms of birth control were "abortifacients," despite no medical evidence to back up their claim. Politicians are already excitedly talking about how they want to throw women in prison for using birth control. Oh, and did I mention that the five members of the Court we know are in the majority belong to a religion that says birth control is a sin — and are clearly all too happy to base their judicial opinions on their personal religious beliefs?

But sure. This is just about abortion. Mmm-hmm. I totally believe you. It has nothing to do with controlling women and the female reproductive system.

But wait! It gets worse!

The part that talks about how abortion bans are totally great and fine is also just wonderful — and tells states exactly what kind of bullshit arguments they should invoke when enacting their authoritarian restrictions on women's bodies.

Because "procuring an abortion is not a fundamental constitutional right[,]" writes Alito, "[i]t follows that the States may regulate abortion for legitimate reasons" and "respect for a legislature's judgment applies even when the laws at issue concern matters of great social significance and moral substance."

Women's lives be damned.

"A law regulating abortion, like other health and welfare laws, is entitled to a strong presumption of validity. It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests."

We remember how much "presumption of validity" the Court gave to health laws during the pandemic. Because it was this year.

And yes, that standard is just as easy to satisfy as it sounds. Abortion restrictions will be nearly impossible to challenge. Particularly given the list of things Alito says are totally justifiable reasons to force little girls to give birth against their will:

"These legitimate interests include respect for and preservation of prenatal life at all stages of development; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical procession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability."
In other words, HAVE AT IT! I mean, women and those with uteruses aren't really "people" anyway, right?

I really can't stress enough how bad this is.

Let's be real about what's actually happening. As Dok already covered, 22 states have abortion bans that will immediately go into effect. (Here in my state of Wisconsin, a pre-Civil War ban will be triggered, so that's fun.) Forced-birthers are already planning a federal abortion ban after six weeks when the fascists retake power. And that's before anti-woman extremists in state legislatures all over the country go full-on Handmaid's Tale, with their pretty new SCOTUS opinion published and in hand.

But even without a federal ban, pregnant women across the country will be endangered — whether the pregnancy is wanted or not. Let's be clear on what abortion bans really mean. They mean deaths and horrific injuries from unsafe abortions. They mean rape victims — including children — being forced to carry their rapist's child to term, and sometimes also forced to co-parent with them. And they mean women dying because doctors won't induce a miscarriage.

Forced-birthers are so extreme, they are all too happy to roll with "pregnant women should just die." In Missouri, Republican lawmakers want to make it a felony to try to save the life of a woman with an ectopic pregnancy. An ectopic pregnancy is when a fertilized egg implants outside of the uterus, like in the fallopian tube or ovary. There is no chance of an ectopic pregnancy ending in a live birth and a very high chance that the pregnant woman will die without having an abortion.

And if you think that this is only about abortion, you haven't been paying attention. When abortion is criminalized, so is pregnancy. So are miscarriages. We are already seeing radical extremist prosecutors throwing murder charges at women who miscarry. In states that ban abortion, it will become routine for police to investigate the circumstances of miscarriages.

And meanwhile, women will have fewer rights when they are pregnant than when they are dead.

Oh, and hey there, everyone who has rolled their eyes at us and called us hysterical or dramatic when we talked about Roe being in danger: DO YOU FUCKING BELIEVE US NOW?!

[ Politico / Draft Opinion ]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.

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