On June 24, the U.S. Supreme Court struck down Roe v. Wade, a landmark decision that provided the right to abortion access in America. That right stood for 49 years, although subsequent holdings, most notably in Planned Parenthood v. Casey, established limitations to that right.
Still, it was a right, and one that women, doctors, couples, and families availed themselves of for reasons known only to them.
Such was the nature of privacy of America. Over time, and despite privacy never being mentioned in the Bill of Rights, the Supreme Court has recognized a constitutional right to privacy involving contraception, intimate actions in the home, intimate sexual conduct between same-sex couples, and other matters.
Consider, too, that in 1992 the United States ratified the International Covenant on Civil and Political Rights, a human-rights treaty that guarantees a right of privacy. Privacy, in the context of America's position in the world, is fundamental.
The majority opinion in Dobbs v. Jackson Women's Health Organization, the opinion that struck down Roe, disagreed. In reaching that conclusion, Justice Samuel Alito argued that women no longer have a right to bodily autonomy, a foundation of Roe. Privacy protected her liberty interest to make decisions about her own body free from governmental intrusion.
Later, in Casey, the court determined that the 14th Amendment to the United States Constitution "declares that no state shall 'deprive any person of life, liberty, or property, without due process of law.'"
While a preliminary draft of Dobbs leaked several weeks ago, Alito's position on privacy was one that helped advance his confirmation. Pressed by the late Sen. Arlen Specter of Pennsylvania during confirmation, then-Judge Alito stated that he believed in the right to privacy, particularly related to contraceptives.
The question of contraceptives, as first addressed by the Court in Griswold v. Connecticut, held that there was a constitutional right of marital privacy against state restrictions on contraception. The rationale was based in the First, Third, Fourth, and Ninth Amendments to the Constitution. Concurring opinions embedded this right in the 14th Amendment. This rationale is how the court, in part, was able to justify its reasoning in Roe and Casey.
This is what makes Dobbs sui generis. The decision fundamentally ignores the doctrine of stare decisis, or the value of past decisions in current and future decision-making.
While Justice Alito states otherwise in the majority opinion, his rationale is remarkably thin. He wrote, "we place a high value on having the matter 'settled right.'" In other words, justices are entitled to decide what rights the nation may have and what rights may be taken away (Dobbs is the first time in American history that the court has overturned a prior case extending a right).
To that end, Justice Alito has turned his back on distinguished jurist Louis Brandeis, who articulated almost 100 years ago that it was essential that law be settled.
Certainty of law is a foundation of precedent. For nearly 50 years Americans have functioned under a system of legalized abortion. Today, even 60 percent of moderate Republicans believe abortion should be legal in all or most cases. In 2002 and for the first time, a majority of Americans regarded abortion as "morally acceptable."
In Arkansas, a "trigger" law passed by the General Assembly now takes effect. Abortion will be outlawed consistent with the holding in Roe. There is no exception for rape or incest.
This is perilous ground, to be sure, and not only because 60 percent of Arkansawyers support abortion rights or oppose abortion but with exceptions. Rape and incest are crimes in Arkansas, yet the present abortion law requires a victim who becomes pregnant by rape or incest to carry that child to term. That is inhumane and an affront to a society that claims to value human dignity.
The harrowing reality of a post-Dobbs world is that the Supreme Court has codified its belief that women no longer have a liberty interest in their own bodies. I am cautious to relate our present politics to fictional dystopia, but this, from Offred, the narrator of Margaret Atwood's novel "The Handmaid's Tale," is prescient: "I used to think of my body as an instrument, of pleasure, or a means of transportation, or an implement for the accomplishment of my will."
What happens next? Gloria Steinem once remarked, "If men could get pregnant, abortion would be a sacrament." She is probably right, but because that is a biological impossibility, we must rely on the court's foreshadowing.
Justice Clarence Thomas, in his concurrence to Dobbs, stated that contraception, intimacy in the home, and same-sex marriage should be revisited. What about interracial marriage? Public school segregation? To be clear: Relying on Dobbs to erode rights already granted puts America on a dangerous path, one that may ultimately revive disparate treatment of persons based on race, color, gender, age, religion, disability, national origin, or sexual orientation.
Americans have sacrificed a great deal to achieve equal rights, protect the due process of law, and preserve individual liberty. Dobbs is a considerable step backwards.
Little Rock native Blake Rutherford is an attorney living in Washington, D.C. He can be reached at Rutherford.Blake@gmail.com.