The Big Picture –
By Glynn Wilson –

For half a century, two Supreme Court cases, Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, protected the liberty and equality of women in the United States of America.

Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women.

In other words, “The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be.”

This is a paraphrase of the opening sentences in the dissent written by Justice Stephen Breyer in the case of Dobbs v. Jackson, the Mississippi case that will live in infamy just announced by the conservative majority on the Supreme Court Friday, the 6-3 decision that overturns 50 years of settled law and obliterates the rights of women to due process and the equal protection of the law in this country.

The decision ends 57 pages later with this unusual and moving ending.

“With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”

The Roberts Court, April 23, 2021
Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor
Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett.
Photograph by Fred Schilling, Collection of the Supreme Court of the United States

In between, with legal candor and a grace in writing that does not exist in the majority opinion, Breyer demolishes the muddled thinking of the conservative members of the court and lays the foundation for this decision to be overturned in the not too distant future, if and when “the people” perhaps come to their senses and stop electing advocates of dictatorship and Fascism in the name of “liberty” and “democracy.”

It could be that I may not live to see it, as Moses said of the promised land and Martin Luther King said of equal rights for African Americans. In fact, it could be that the days of this American experiment in government of, by and for the people has now perished from the Earth, and the planet is so doomed to environmental catastrophe that we will all be gone from this place soon.

I don’t want to believe that, not on this Fourth of July in the year of our impending doom, 2022.

But as the rain now comes down with some force in the forest here, leaving me little choice but to hang out inside and write, that is what I’m thinking after reading one of two devastating Supreme decisions I will write about this week.

As I was hiding from the heat and then the rain on Saturday, I took the time to go through Dobbs and format it on my computer with key quotes in bold.

I want to go through some of these with you, dear reader, in this space that will hopefully be archived somewhere for posterity.

“Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.”

While Breyer is credited with writing this decision, and upon his retirement he deserves full credit, I can’t help but hear the commanding and powerful voice of Sonia Sotomayor in many of the passages. She joined in the dissent, along with Elena Kagan. They were both appointed to the court by President Obama, and somehow managed to get confirmation in the U.S. Senate commanded by the tower of obstruction, Mitch McConnell.

For the justices writing in both Roe and Casey, Republican appointees and Democrats, they knew full well the “difficulty” and “divisiveness” of the abortion issue, as Sam Alito brings up once again in Dobbs.

“The Court knew that Americans hold profoundly different views about the ‘moral[ity]’ of ‘terminating a pregnancy, even in its earliest stage,” Breyer writes. “And the Court recognized that ‘the State has legitimate interests from the outset of the pregnancy in protecting’ the ‘life of the fetus that may become a child.'”

“So the Court struck a balance, as it often does when values and goals compete,” Breyer writes. “Today, the Court discards that balance.

“It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs. An abortion restriction, the majority holds, is permissible whenever rational, the lowest level of scrutiny known to the law. And because, as the Court has often stated, protecting fetal life is rational, States will feel free to enact all manner of restrictions.”

The Mississippi law at issue bars abortions after the 15th week of pregnancy.

“Under the majority’s ruling, though, another State’s law could do so after ten weeks, or five or three or one—or, again, from the moment of fertilization,” Breyer writes. “States have already passed such laws, in anticipation of today’s ruling. More will follow.”

“Enforcement of all these draconian restrictions will also be left largely to the States’ devices,” he goes on. “A State can of course impose criminal penalties on abortion providers, including lengthy prison sentences. But some States will not stop there.

“Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion. And as Texas has recently shown, a State can turn neighbor against neighbor, enlisting fellow citizens in the effort to root out anyone who tries to get an abortion, or to assist another in doing so.

“The majority tries to hide the geographically expansive effects of its holding. Today’s decision, the majority says, permits ‘each State’ to address abortion as it pleases. That is cold comfort, of course, for the poor woman who cannot get the money to fly to a distant State for a procedure. Above all others, women lacking financial resources will suffer from today’s decision.”

“Most threatening of all,” he says, “no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest. If that happens, ‘the views of [an individual State’s] citizens’ will not matter.”

Further down, he concludes: “Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.”

So this is not just my editorial opinion, which I wrote about when the decision was first announced. Here a well respected justice concludes the same thing in writing for the court.

Related: When Liberty is Truly Threatened, Who Will Actually Stand Up?

“Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected ‘[t]he ability of women to participate equally in [this Nation’s] economic and social life,” Breyer says, quoting the Casey decision.

“But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare.”

Further down, he continues: “The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.

“And no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation.”

After discussing the majority opinion justification that the word “abortion” is not in the Constitution so there is no such right, and that those who wrote the 14th Amendment in 1868 also did not mention abortion so there is no such right of women to “choose,” Breyer concluded one of two things must be true.

“Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.

“One piece of evidence on that score seems especially salient,” Beyer says. “The majority’s cavalier approach to overturning this Court’s precedents. Stare decisis is the Latin phrase for a foundation stone of the rule of law: that things decided should stay decided unless there is a very good reason for change. It is a doctrine of judicial modesty and humility.

“Those qualities are not evident in today’s opinion. The majority has no good reason for the upheaval in law and society it sets off. Roe and Casey have been the law of the land for decades, shaping women’s expectations of their choices when an unplanned pregnancy occurs.”

“No recent developments, in either law or fact, have eroded or cast doubt on those precedents. Nothing, in short, has changed,” he continues. “Indeed, the Court in Casey already found all of that to be true.

“Casey is a precedent about precedent. It reviewed the same arguments made here in support of overruling Roe, and it found that doing so was not warranted. The Court reverses course today for one reason and one reason only: because the composition of this Court has changed.”

In other words, this decision, contrary to what the authors claimed in the majority opinion, is a political decision based on the biased, partisan opinions of the justices, what they often like to call “activist judges,” imposing their opinions on the country, not following the actual law they swore to uphold and testified before the United States Senate that they would uphold. They have violated their oath.

“Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law,” Breyer writes. “We dissent.”

Continuing on in decomposing the logic, legality and constitutionality of the majority decision, Breyer explains that in Casey, “Central to that conclusion was a full-throated restatement of a woman’s right to choose.”

“Like Roe, Casey grounded that right in the Fourteenth Amendment’s guarantee of ‘liberty,'” Breyer wrote. “That guarantee encompasses realms of conduct not specifically referenced in the Constitution: Marriage is mentioned nowhere in that document, yet the Court was “no doubt correct” to protect the freedom to marry “against state interference.”

“It is settled now,” the Court said—though it was not always so—that “the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood, as well as bodily integrity.”

“So Casey again struck a balance, differing from Roe’s in only incremental ways,” Breyer says. “It retained Roe’s ‘central holding’ that the State could bar abortion only after viability.”

Later on, Breyer says, “The majority scoffs at that idea, castigating us for ‘repeatedly prais[ing] the ‘balance’ the two cases arrived at (with the word ‘balance’ in scare quotes). To the majority ‘balance’ is a dirty word, as moderation is a foreign concept.”

“The majority would allow States to ban abortion from conception onward because it does not think forced childbirth at all implicates a woman’s rights to equality and freedom,” he reasons. “Today’s Court, that is, does not think there is anything of constitutional significance attached to a woman’s control of her body and the path of her life.”

Moving on, Breyer said the majority’s core legal postulate, then, “is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did. And that is indeed what the majority emphasizes over and over again.”

In other words, he wrote: “If the ratifiers (in 1868, before women had equal rights) did not understand something as central to freedom, then neither can we. Or said more particularly: If those people did not understand reproductive rights as part of the guarantee of liberty conferred in the Fourteenth Amendment, then those rights do not exist.”

He points out that ‘people’ did not ratify the Fourteenth Amendment.

“Men did,” he said. “Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788—did not understand women as full members of the community embraced by the phrase ‘We the People.'”

Of course we understand that now, or we did until this ruling was released. Nowhere in Breyer’s dissent does he use the term referring to the Constitution as a “living document,” which of course it is. It’s just that phraseology has become controversial on the political right, among those who want to interpret the Constitution in an “originalist” sense, sort of how they interpret their religious text, as “fundamentalists.”

Kind of like how the Taliban interprets the Koran.

Breyer quotes the first Chief Justice of the Supreme Court, John Marshall, who said from the beginning our Constitution was “intended to endure for ages to come,” and must adapt itself to a future “seen dimly,” if at all.

“That is indeed why our Constitution is written as it is. The Framers (both in 1788 and 1868) understood that the world changes,” Breyer points out. “So they did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation. It has kept true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions.

“Nowhere has that approach been more prevalent than in construing the majestic but open-ended words of the Fourteenth Amendment—the guarantees of “liberty” and “equality” for all. And nowhere has that approach produced prouder moments, for this country and the Court.”

In wording that has been pushed by Justice Clarence Thomas for years, adopted by Alito in the majority opinion, this court tried to convince people that this ruling only applies to abortion and no other right. But nobody believes that, certainly not the anti-abortion activists or radical right legislators who are already pushing to impose more of their religious views on the rest of us.

“The Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven,” Breyer argues. “All part of the fabric of our constitutional law, and because that is so, of our lives. Especially women’s lives, where they safeguard a right to self-determination.”

In his pathetic little contribution to this majority decision, Brett Kavanaugh, one of Trump’s appointees to the court, tries to argue that sending the power back to the states to decide is what is meant in the law by “even-handedness” or “neutrality.”

But Breyer schools him on that.

“When the Court decimates a right women have held for 50 years, the Court is not being ‘scrupulously neutral’ (as it claims),” Breyer says. “It is instead taking sides: against women who wish to exercise the right, and for States (like Mississippi) that want to bar them from doing so.”

The majority does not say in its decision whether a state may prevent a woman from obtaining an abortion when she and her doctor have determined it is a needed medical treatment, “which is itself ominous,” Breyer says. “So too, Roe and Casey fit neatly into a long line of decisions protecting from government intrusion on a wealth of private choices about family matters, child rearing, intimate relationships and procreation.”

“Those cases safeguard particular choices about whom to marry; whom to have sex with; what family members to live with; how to raise children—and crucially, whether and when to have children. In varied cases, the Court explained that those choices—’the most intimate and personal’ a person can make—reflect fundamental aspects of personal identity; they define the very ‘attributes of personhood,'” Breyer writes.

“And after Roe and Casey,” he points out, “the Court continued in that vein, holding that the Fourteenth Amendment protected same-sex intimacy, (and) the Court resolved that the Amendment also conferred on same-sex couples the right to marry.”

That is at risk now along with a host of other decisions based on the idea of a Living Constitution and an expansive interpretation of the 14th Amendment, primarily because the choices Republican presidents now turn to for Supreme Court nominees is dominated by members of a secret society called the Federalist Society, which goes about pushing this “originalist” fundamentalist philosophy of law like Alabama’s Ten Commandments Judge Roy Moore and the Taliban in Afghanistan.

Breyer points out in his powerful dissent that equal citizenship, according to the Casey ruling, was inescapably connected to reproductive rights.

“The ability of women to participate equally” in the “life of the Nation”—in all its economic, social, political, and legal aspects—“has been facilitated by their ability to control their reproductive lives,” he quotes the previous decisions.

“Without the ability to decide whether and when to have children, women could not—in the way men took for granted—determine how they would live their lives, and how they would contribute to the society around them,” Breyer explains, as if we really needed to explain this after all these years.

Clearly the intellectual nature of American thought is lurching backwards, clearly due to the empowerment of stupidity by Trump and its promotion on social media platforms like Facebook.

We are living in an “idiocracy” now, and we have very little time to rescue it.

“As a matter of constitutional substance, the majority’s opinion has all the flaws its method would suggest,” Breyer concludes. “Because laws in 1868 deprived women of any control over their bodies, the majority approves States doing so today. Because those laws prevented women from charting the course of their own lives, the majority says States can do the same again. Because in 1868, the government could tell a pregnant woman—even in the first days of her pregnancy—that she could do nothing but bear a child, it can once more impose that command.

“Today’s decision strips women of agency over what even the majority agrees is a contested and contestable moral issue. It forces her to carry out the State’s will, whatever the circumstances and whatever the harm it will wreak on her and her family. In the Fourteenth Amendment’s terms, it takes away her liberty.”

Finally, Breyer also argues that by overruling Roe, Casey, and more than 20 cases reaffirming or applying the constitutional right to abortion, the majority abandons stare decisis, a principle central to the rule of law.

As Hamilton wrote: It “avoid[s] an arbitrary discretion in the courts.”

That is why, the story goes, Chief Justice John Marshall donned a plain black robe when he swore the oath of office. That act personified an American tradition. Judges’ personal preferences do not make law; rather, the law speaks through them.

“Stare decisis is, of course, not an ‘inexorable comman”; it is sometimes appropriate to overrule an earlier decision,” Breyer argues. “But the Court must have a good reason to do so over and above the belief ‘that the precedent was wrongly decided’,” as Clarence Thomas argued in his little part in this travesty.

“None of those factors apply here: Nothing — and in particular, no significant legal or factual change — supports overturning a half-century of settled law giving women control over their reproductive lives.”

And far from removing the Court from the abortion issue, “the majority puts the Court at the center of the coming ‘interjurisdictional abortion wars,’ Breyer warms.

“In the end, the majority throws longstanding precedent to the winds without showing that anything significant has changed to justify its radical reshaping of the law.”

“In sum,” he says, “Roe and Casey are inextricably interwoven with decades of precedent about the meaning of the Fourteenth Amendment. While the majority might wish it otherwise, Roe and Casey are the very opposite of ‘obsolete constitutional thinking.’”

For half a century now, in Casey’s words, “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”

“Indeed,” Breyer says, “all women now of childbearing age have grown up expecting that they would be able to avail themselves of Roe’s and Casey’s protections. The disruption of overturning Roe and Casey will therefore be profound.”

Abortion is a common medical procedure and a familiar experience in women’s lives, he points out. About 18 percent of pregnancies in this country end in abortion, and about one quarter of American women will have an abortion before the age of 45.

“Taking away the right to abortion, as the majority does today, destroys all those individual plans and expectations. In so doing, it diminishes women’s opportunities to participate fully and equally in the Nation’s political, social, and economic life.”

“For those who will now have to undergo that pregnancy, the loss of Roe and Casey could be disastrous….” Breyer writes. “They may lose not just their freedom, but their lives.”

It also disrupts the lives of every other free person in this country who will inevitably be impacted by this decision.

Justice Jackson once called a decision he dissented from a “loaded weapon,” Breyer points out, “ready to hand for improper uses.”

“We fear that today’s decision, departing from stare decisis for no legitimate reason, is its own loaded weapon. Weakening stare decisis threatens to upend bedrock legal doctrines, far beyond any single decision. Weakening stare decisis creates profound legal instability. And as Casey recognized, weakening stare decisis in a hotly contested case like this one calls into question this Court’s commitment to legal principle. It makes the Court appear not restrained but aggressive, not modest but grasping. In all those ways, today’s decision takes aim, we fear, at the rule of law.”

And he does not stop there.

“It eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station. It breaches a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the Court’s legitimacy.”

This court has no legitimacy left, except in dissent.

But the only people militantly standing up to act in dissent of this government are those on the right who support Trump, dictatorship, and the majority members on this court. Who will tell them that all their efforts to protect their rights, their liberty, did exactly the opposite of what they were trying to stand up for? This court just took their liberty from them, and they are cheering it with guns and fireworks on this Fourth of July.

A wise man once said, maybe Sinclair Lewis, maybe not, “When Fascism comes to America, it will be wrapped in the flag and carrying a cross.”

I think it’s time to update that quote. You can quote me on this.

“When Fascism comes to American, it will come waving an American flag and holding a Holy Bible, by a blonde man who plays golf (badly).”

It is already here, my friends. I dissent.

If not stopped in November 2022 and 2024, we are done. I am done anyway. I won’t live this way.

Read the full decision for yourselves here.

___

If you support truth in reporting with no paywall, and fearless writing with no popup ads or sponsored content, consider making a contribution today with GoFundMe or Patreon or PayPal.