By Olivia Eisenberg, The Fem word contributor

THE FOLLOWING IS A PART OF A SPECIAL TFW SERIES FOCUSING ON THE SUPREME COURT ABORTION RULING

**Disclaimer: language used in Dobbs is not gender inclusive (ie. “women” instead of “birthing people” or “people with the capacity for pregnancy”). When referencing the document, that same language will be used in order to reflect the intentions of the authors of the document, but keep in mind that women are not the only people who can get pregnant or have an abortion.

Facts of the Case and Opinions

In a majority opinion released in June of 2022 and delivered by Justice Samuel Alito, the Supreme Court of the United States upheld Mississippi’s Gestational Age Act which banned abortions later than 15 weeks or “in the case of a medical emergency or severe fetal abnormality.” With this decision, the Court overturned the precedent of Roe v. Wade and Planned Parenthood v. Casey, both of which protected one’s right to an abortion (though with slightly different reasonings).

The majority opinion was signed onto by Justices Alito, Gorsuch and Coney-Barrett. It argued that since Roe and Casey did not prove that the right to an abortion was implied through the enumerated rights in the Constitution, they could not protect it and it therefore is a matter that falls in the hands of individual states.

Justice Thomas’ concurring opinion additionally called for all precedents relying on procedural due process to be re-examined (though notably leaving out Loving v. Virginia) as it is expanding the Court’s power beyond what was intended by the framers -- which, in his view, was to solely interpret was explicitly stated in the Constitution.

Justice Kavanaugh’s concurrence offered little additional argument and seemed like nothing more than a need for attention.

Chief Justice Roberts seemed, instead of solely turning over the decision on whether or not to protect the right to an abortion to the states, to argue the morality of abortions as a whole. Though, he did add that a person should be given a “reasonable opportunity to choose” whether or not to have an abortion as long as it does not extend pass viability.

Justices Kagan, Sotamayor and Breyer dissented agreeing with Roe and Casey’s argument stating that the right to an abortion is guaranteed by the First, Fourth, Fifth and Fourteenth Amendments and that overturning Roe and “departing from stare decisis for no legitimate reason” weakens it and “creates profound legal instability.”

Biased and Charged Language

The majority makes their positions and intentions clear with the language they use to talk about Roe and the pro-choice values.

On page 33 and 34, a brief overview of both sides’ arguments is written. For pro-choice, they talk about the weakness of the argument, and for anti-choice, they write twice as many words about solely the validity of the argument.

On page 47, the majority uses the phrase “elaborate scheme” when talking about the framework and intentions behind the Roe decision. This language paints the pro-choice argument as inherently evil and unsubstantiated.

On page 70, the majority asks, “Does the dissent really maintain that overruling Plessy was not justified until the country had experienced more than a half-century of state sanctioned segregations and generations of Black school children had suffered all its effects?” Phrasing this intentionally false statement as a question introduces an immature pettiness that should be found nowhere in official government documents.

On multiple occasions, the majority uses the phrase “reasonable women” when discussing pre/post-quickening abortions (Majority, 75). “Reasonable” is put in quotation marks in reference to women -- suggesting it is almost satirical to think that women could ever be reasonable.

Not only is it frustrating that the highest Court in the nation could take so few steps to remain unbiased, but it completely invalidates their writing when they use such immature and unprofessional language.

Contradictory and Unbacked Arguments

When addressing the weaknesses of Roe, the majority opinion argues that the “undue burden” standard against which abortion laws must be measured is “vague.” Then, in the majority opinion, justices indirectly voice their approval of Mississippi’s Gestational Age Act that bans abortions after 15 weeks, except in cases of medical abnormalities, an exception which seems too vague to be upheld in practice. Additionally, Supreme Court decisions are always relatively vague because they answer constitutional questions, they do not hold the specificity of legislation.

Another repeated reason listed for putting abortion rights in the hands of the states is because it is to controversial of an issue in the nation for the Court to decide. Yet, they emphasize many times throughout the document that “the Court cannot allow its decisions to be affected by such extraneous concerns'' when addressing the controversy surrounding abortion laws -- “This Court is ill-equipped to assess ‘generalized’ assertions about the nation psyche” (Syllabus, 7, Majority, 64). So the Court shouldn’t take into account national attitudes, but national attitudes are too divided so they had to reverse a landmark precedent?

A (justified) widespread fear arose with the leaking of Dobbs in May of 2022, when the wording of the majority opinion seemed to call into question the validity of other substantive due process cases like Griswold v. Connecticut, Lawrence v. Texas and Obergefell v. Hodges. On page 7 of the syllabus the majority states, “The Court emphasized that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” However, this attempt to cover their tracks and appease fear is completely disingenuous. Not only did Justice Thomas explicitly call for those cases to be reexamined, but every single SCOTUS decision is used in the future to apply to seemingly unrelated cases but ones that deal with a similar constitutional question. Make no mistake, Dobbs will undoubtedly be used as backing for future cases dealing with topics like access to contraception, same-sex marriage and others integral to individual autonomy and expression.

Lastly, The majority argues that a compelling reason for abandoning stare decisis and overturning Roe is that the “right to an abortion is not deeply rooted in the Nation’s history” (Syllabus, 2). First, this is glaringly false (See “Roe v. Wade Was Never Enough”). A quick google search will uncover that abortions have been integral to the health and population development of this and other countries. Second, since the majority insists on continuing to compare Roe to Plessy: the right of Black people to be treated equally to white people was also “not deeply rooted” in American history -- entrenched was instead the nation’s systemic oppression and abuse of Black people. This is yet another example of the majority constructing an argument around unfounded guidelines and a lack of careful research. The majority deliberately fails to go into the history of abortion in America which shows clear bias to try to save their argument -- if they were to mention it, their whole argument would unravel. This is exemplary of their incredibly weak arguments since it is clear that they completely ignore the “other” side when it is essential to their line of reasoning.

Corruption on the Dobbs Court

CLARENCE THOMAS

Justice Thomas was accused of sexual violence two separate times throughout his career, and publicly denied the claims from Anita Hill and Angela Wright despite theirs and several witness testimonies.

Additionally, Thomas’ wife, Gini Thomas, had a hand in the January 6th coup. She was engaging in right-wing conspiracy groups online and is the director of a conservative dark money group. Despite his wife’s involvement and apparent bias, Justice Thomas refused to recuse himself from cases that concerned the insurrection.

On top of all of that, he was appointed by a president who lost the popular vote.

BRETT KAVANAUGH

Justice Kavanaugh has been responsible for three separate sexual assaults: those of Christine Blasey Ford, Deborah Remirez and Julie Swetnick.

He lied under oath by saying Roe v. Wade was “settled law” in his confirmation hearing in 2018.

Like Thomas and others, he was appointed by a president who lost the popular vote.

AMY CONEY BARRETT

Justice Coney Barrett served on the school board for People of Praise, a church group that refused to look into countless accounts of child sexual abuse by its members. In 2017, she refused to re-hear EEOC v. Autozone, a racial segregation case that allowed Autozone to segregate its employees by race.

Perhaps the most glaring flaw in the justiceship of Amy Coney Barrett is her lack of experience. When Trump appointed her to the 7th Circuit Court of Appeals in 2017, she had never been a judge, never argued a case in court or served as counsel to any legislative body. In her circuit Court confirmation hearing, she couldn’t recall more than three cases she had worked on in her brief two years in private practice, while nominees are asked to provide details on ten. In her Supreme Court confirmation hearing, she failed to name the five protections of the First Amendment -- a task any high school graduate should be able to complete. Her stark lack of judicial knowledge and experience shows that her appointment was purely political.

Surprise! She was also appointed by a president who lost the popular vote.

NEIL GORSUCH

Justice Gorsuch was appointed through foul play. Justice Scalia had just died during Obama’s term which should have prompted an Obama-nominee to fill his seat. Instead, Senate republicans manipulated the system by refusing to hear Obama’s nominee and sneaking in Gorsuch during Trump’s term in his place.

Like others, he lied under oath saying he would uphold Roe: “Roe is a precedent of the United States Supreme Court. A good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.”

And…he was appointed by a president who lost the popular vote.

SAMUEL ALITO

Justice Alito has an infamous history of deciding cases in a way that minimizes freedom for marginalized groups and expands freedom for powerful ones. As examples, he argued that the strip search of a suspect’s wife and 10 year-old daughter was constitutional and that removing prisoners’ access to newspapers and photographs was constitutional.

And you guessed it -- he was appointed by a president who lost the popular vote.

Source: Impact on Instagram

What This All Means

Dobbs v. Jackson Women’s Health Organization was decided on little more than predetermined biases and easily breakable arguments. Though the decision seems to only affect uterus owners, the precedent is sure to have an effect on everyone. It set a precedent of restricting judicial power by deciding on only what the constitution explicitly states, which will affect the validity of things like contraception and same-sex and interracial marriage.

It also is an example of unchecked corruption. Though justices can be impeached, it is rare -- it has only occurred once, and Supreme Court justices are appointed for life. It is a mockery for the highest court in the nation to write such a discombobulated document with no repercussions. Since they seem to have gotten away with it this time, we will continue to see more and more blatant examples of the Supreme Court using their power to inject their own views into decisions with no respect for the Constitution or the American people.

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Unpacking Dobbs v. Jackson Women’s Health Organization: What the Language of the Case Tells Us