The Supreme Court’s Dobbs Standard Leads to a Dangerous Future

June 28, 2021

Jul 14, 2022

Photo: Chicago Tribune

In the Dobbs v. Jackson Women’s Health Organization decision, the United States Supreme Court states that substantive rights under the Fourteenth Amendment that are not specifically mentioned in the Constitution must be “deeply rooted in this Nation’s history and tradition.” 

The majority opinion reaches back in history as far as the 13th Century where it relied, in part, on the opinions of select misogynists to suggest that, since abortion was essentially illegal for almost 800 years and only legal for the last 50, there is no such “right deeply rooted in the Nation’s history and tradition.” 

Justice Alito’s standard threatens any implicit rights that have been held to constitute liberties based on the Fourteenth Amendment substantive due process clause. There is a certain incongruity in justifying the revocation of abortion rights based on the common law that predates the Constitution, or for that matter, the Declaration of Independence. 

The purpose of these founding documents was to elevate and protect rights against an over-reaching government, despite the fact that they chiefly focused on enumerating those rights of exclusively white male property owners in the new America. The common law prior to 1776 referred to subjects of the Crown where “individual rights” of commoners were largely non-existent. 

American conventions that are “deeply rooted in the Nation’s history and tradition” include: genocide and theft of property against Native Americans; slavery; Jim Crow laws; Chinese exclusion laws; violence against women; as well as discrimination against others, including Asians, Native Americans, African Americans, Jews, Hispanics, and LGBTQ+ individuals. The logical extension of the majority’s argument is that modern human rights law and civil rights law cannot withstand scrutiny because the injustices that gave rise to these laws are “deeply rooted in the Nation’s history.”

The requirement that rights be “deeply rooted” is a sleight of hand that, if adopted more broadly, would sabotage the developing body of civil rights recognized in the United States since WWI. The right of women to vote only dates from 1920, Native American voting rights from 1948. The Fifteenth Amendment, ratified in 1870, provided the right of African American males to vote, but that right was not really effectuated until the 1965 Voting Rights Act. Yet in the past decade, the Supreme Court has essentially gutted that law in its decisions in: Shelby County v. Holder in 2013, Abbot v Perez in 2018, and last year’s Brnovich v Democratic National Committee.

 The Universal Declaration of Human Rights was not adopted by the United States until 1948. 

Women’s rights to employment and protection from harassment and discrimination in the work place are rooted in the 1960s-1970s, and have advanced from there. Other privacy rights including: access to contraception, to engage in consensual sexual acts out of wedlock, to engage in consensual homosexual acts, inter-racial marriage, gay marriage, and freedom from discrimination due to disability are all rights recognized in the last 75 years. Defining rights that people should be accorded today by the selected writings and prejudices of 13th Century men and by ancestors who denied rights to all but property-owning white males for centuries should be abhorrent today. That the majority of the Supreme Court did so is as disheartening as it is shocking.

The “logic” of this decision sets this country on a dangerous backward path. With each new restrictive state law and court decision that ignores the cruelty of their impacts, the proponents perpetuate a modern version of ethnocide. The initiatives in Florida and Texas, which are also being emulated in other states, seek to eliminate all discussion of the lives and literature reflecting the experiences of non-white ethnicities and LGBTQ+  people. This includes, but is not limited to, historical phenomena such as genocide, slavery, harassment, and discrimination. 

Rather than taking inspiration from these stories of survival, struggle, love, and growth, the laws seek to purge libraries and school curricula as if these authors, artists, and people never existed. The cultural exclusion is further exacerbated by an aggressive national effort to deny ethnic minorities representation in government and the ability to exercise their right to vote. 

One cannot be properly educated if only exposed to a censored history, especially one that denies the existence of others in our society or otherwise diminishes their lived experiences. 

History is hard; the truth can be harder. But truth also strengthens us and builds character. Rewriting history by denying the rich contributions of the diverse people who comprise our Nation will not lead us to a more just society or a more perfect union. It will lead to an ignorant and immoral citizenry without the ability to understand the ramifications of tough decisions or engage in critical thinking.

The concept that all persons are entitled to equal rights and dignity under the law, even if their rights have never been “deeply rooted in our Nation’s history and tradition”, has evolved. It is the 21st Century, and it is time for that to be recognized by this Supreme Court.


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