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The Scarlet Letter

“When the founders wrote ‘We The People’ in the preamble,
they did not have in mind the majority of America’s citizens.”
– Justice Thurgood Marshall, from a 1987 speech

Spoiler Alert: I am pro-choice but am also a strong supporter of religious liberty. I appreciate the outcome of Roe but always agreed with the late Justice Ruth Bader Ginsburg that a different grounding should have been found for abortion rights, and with Sandra Day O’Conner that Roe is not always well-reasoned and has a time bomb built in—a viability standard which would always get shorter with the advance of science.

The problem with infidelity is not so much the act but the loss of trust.

The leak of Justice Samuel Alito’s first draft of Dobbs v. Jackson Health Organization is an act of unfaithfulness to the U.S. Supreme Court’s historic norms and is one more destructive blow to a country based on a voluntary experiment known as democracy.

This tragic blow is instantly superseded by the strikingly broad language in Justice Alito’s draft opinion which marks, all at once, a threat not only to safe and legal access to abortion, but to stare decisis, the right to choose one’s consensual sexual partners (Lawrence v. Texas), the right to marry a person of the same sex (Obergefell v. Hodges), birth control (Griswold v. Connecticut and Eisenstadt v. Baird) and interracial marriage (Loving v. Virginia). None of these rights were recognized at the time when the 14th Amendment was ratified in 1868. For that matter, our expectation of privacy and any right not specifically enumerated in the Constitution may soon be under threat as well.

Increasingly more laws are treating a fetus as a person and reducing the rights of women. Pregnant women who have been in car accidents, fallen down the stairs, failed a drug test as a result of eating a poppy seed bagel, took doctor-prescribed legal drugs during their pregnancy, and have given birth to a stillborn have been charged with crimes including manslaughter.

To add salt to the wound, in his sweeping leaked opinion, Justice Alito resurrects Sir Matthew Hale, a 17th-century jurist who conceived the notion that husbands cannot be prosecuted for raping their wives, devised instruction to jurors to be skeptical of reports of rapewhich survived him until the 1970sand sentenced women to death as witches on Gallows Hill in Salem. Justice Hale’s influence on American jurisprudence had long been in decline…until now.

Justice Alito also cites 13th century English cleric and jurist Henry de Bracton, who in one treatise wrote that if a person has “…struck a pregnant woman, or has given her poison, whereby he has caused an abortion, if the foetus be already formed and animated … he commits homicide.’” Justice Alito neglected to cite the parts where de Bracton goes on to write that “Women differ from men in many respects, for their position is inferior to that of men” or that “… those condemned to be burned alive ought not to be injured by floggings, whippings, or tortures, since many perish while under torture.”

This Court appears to be on the verge of splitting the states into rights and crimes in a way it has not since the Dred Scott v. Sanford decision in 1857, when the country was divided into slave and free states. In Dred Scott, the Court ruled that Black people were “beings of an inferior order” and “so far inferior that they had no rights which the white man was bound to respect and that the Negro might justly and lawfully be reduced to slavery for his benefit.”

Justice Alito and at least four other sitting Supreme Court justices pride themselves on being originalistsa trend that can be traced to Robert Bork’s “Neutral Principles and Some First Amendment Problems,” published in the Indiana Law Journal just two years before Roe was decided. As Harvard professor, author and journalist Jill Lepore wrote, “There is no mention of [abortion] in a four-thousand-word document crafted by fifty-five men in 1787. This seems to be a surprise to Samuel Alito.”

To help us wade through the legal ramifications, this week I interviewed constitutional scholar and Supreme Court watcher Steven Schwinn—a Professor of Law at the University of Illinois, Chicago, and the author of Constitutional Law Prof Blog—on In House Warrior, the daily podcast I host for the Corporate Counsel Business Journal.

Will Dobbs ultimately reduce women to the scarlet letter? We are all now collectively holding our breath for what is surely not the last shoe to drop. To the originalists, be careful what you wish for. The slippery slope is far slicker than you realize.

Enjoy the listen.

Richard Levick

Listen to Overturning Roe v. Wade

Next Week: How Corporations Can Prepare for a Post-Roe World

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