Friday’s not so surprising ruling by the U.S. Supreme Court allowing the restrictive Texas abortion law to remain fully intact should send a chill down the spine of all Americans whether they are anti-abortion or not. Why? Because as the Court’s first Latina justice powerfully argued in her dissent:
“This is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to “veto” or “nullif[y]” any federal law with which they disagreed. Lest the parallel be lost on the Court, analogous sentiments were expressed in this case’s companion: “The Supreme Court’s interpretations of the Constitution are not the Constitution itself—they are, after all, called opinions.”
Her point being, if we go down this road as a nation of overturning long-standing constitutional precedents decided by the nation’s highest Court, then we are opening a door to reconsidering cases not just about women’s reproductive rights but also the rights of Black people (and others) when it comes to equal education, the right to vote, the right to marry and indeed our very civil rights.
We have already witnessed the slow and methodical gutting of the 1965 Voting Rights Act over the past decade, first with Shelby vs. Holder in 2013 and then more recently last year with the companion Arizona voting rights cases. Since that time, the Court is now solidly more conservative with Chief Justice Roberts being the swing vote of conscience.
Some will say it’s a “bridge too far” to say that the abortion cases will open Pandora’s box to gutting other “super precedents”—cases like Brown v. Board of Education, or Obergefell v. Hodges (the case allowing same sex marriage)—that it could never happen in America. I strongly disagree. And here is why.
Back in September, Justice Sonia Sotomayor pointed out that the Texas law remains a direct challenge to well-settled precedent and to the supremacy clause of the Constitution itself. I agree. By supremacy clause she means the supremacy of federal rulings in the U.S. Constitution. Or said simpler, federal law preempts that of state law. Article VI, Paragraph 2 of the Constitution is commonly referred to as the supremacy clause. It prohibits states from interfering with the federal government’s exercise of its constitutional powers and from assuming any functions that are exclusively entrusted to the federal government.
As someone who has been admitted to the prestigious bar of the Court since 2005, I am deeply worried about its new conservative balance.
The fact is that Trump’s most damning legacy may not just be inciting an insurrection against his own country on Jan. 6, but his legacy of federal judges (three of whom now sit on the Supreme Court) who are clearly not driven by the law as much as by partisan sentiments that go against long-established judicial precedent as the guiding force for judicial review and interpretation of cases. And the Texas case is just the first in a line of cases dealing with liberty interests and personal freedoms for women’s health that the Court must decide.
The highlight of these is the Mississippi case, known as Dobbs v. Jackson Women’s Health Organization, which is a challenge to the Mississippi law that bans abortion after 15 weeks of pregnancy. Although this law is not as restrictive as Texas’ law, which makes pregnancy viable at six weeks—a timeframe that most women who become pregnant have no clue that they actually are pregnant because it is too soon—is it equally damaging to the Roe v. Wade decision if the High Court allows it to also be upheld and stay in place.
Frankly, the Supreme Court’s decision to leave in place the Texas law and at the same time allow abortion providers or clinics to sue, is insane. It is a formula for chaos in the court system with bounty hunters and providers suing one another. It is also a clear window, in my opinion, for bad things to come in other areas of the law. The majority of the Court in a 5-4 decision (with Chief Justice John Roberts siding with the Court’s more liberal justices), was clearly presented with an opportunity to stop a blatantly unconstitutional law designed by the Texas legislature to prohibit women from exercising their constitutional right to a safe and legal abortion (granted by Roe and affirmed by Casey) and chose instead to punt.
Worse, and what worries me deeply, is this new conservative majority’s willingness to evade judicial scrutiny and to just act as if states can flagrantly violate the federal supremacy clause on well-settled legal precedents. They cannot. Chief Justice Roberts called out the assault against the primacy of the federal courts that was embedded in the Texas law, quoting Marbury v. Madison and accusing Texas of flirting with, if not exactly engaging in, nullification. Powerful words from a once highly respected conservative, George W. Bush Supreme Court nominee.
This is our future folks. The conservatives justices: Brett Kavanaugh, Amy Coney Barrett, Neil Gorsuch, Clarence Thomas and Samuel Alito have decided they will move America back into the direction of state’s rights. I think this is also a big red flag for future Senate Judiciary Committee members who allow future Supreme Court nominees to lie to them about their feelings on issues like abortion, civil rights and voting rights. We clearly now know that Justice Kavanaugh was not being truthful when asked directly about Roe in his confirmation hearings.
Bottom line: If abortion access becomes more and more restricted, it will, as always, impact Black women (and women of color) more significantly. How? Poor Black women who need to make the choice to abort a pregnancy will not have access to such services, and they will not have the money to cross state lines where abortion is available.
Perhaps, even worse, is that Black women’s maternal health is at issue, and some may be at risk with a pregnancy that requires an early termination or choice of life of the mother over that of the fetus. This is an issue that must be left to doctors and their patients. And for the record, I am pro-life and have been my entire life. But I am more pro-America. Pro-liberty. Pro-personal freedom, which is what conservatives say they are for—unless of course, it doesn’t comport with their war on women or on civil rights.
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