Let’s Try This One More Time…

What’s wrong with the argument–made on this site most recently by Paul Ogden–that our differences about abortion should be resolved by democratic debate, and not by Judges issuing edicts?

Certainly, we Americans decide lots of things democratically–legislatures in the various states make policies about taxation, about criminal law, property rights, public transportation and innumerable other issues, and those decisions presumably reflect the majority sentiment in those states. (Okay, maybe not, given the extent of gerrymandering…but theoretically.)

Why do you suppose that those legislators and their constituents don’t get to vote on other matters: the right to free speech, the right to pray to the God of your choice (or not), the right to read books of one’s own choosing, the right to be free of arbitrary searches and seizures, the right of citizens to cast votes in elections…

The reason we don’t subject those and similar rights to majority preferences is because the courts have determined–properly–that under our constitution, they are fundamental rights. And the majority doesn’t get to decide whether person X or person Y is entitled to fundamental rights.

Ever since Griswold v. Connecticut, in 1965, the United States Supreme Court has acknowledged that personal autonomy–the  individual’s right to make “intimate” personal decisions–is one of those fundamental rights. The doctrine of substantive due process, often called the right to privacy, is shorthand for the recognition that certain decisions should not be made by government. The doctrine answers the question “Who decides?” by drawing a line between the myriad issues appropriate for resolution by majorities acting through government, and decisions  that government in a free society has no business making.

The question, by the way, is who decides–who gets to make a particular decision, not what the decision should be.

The deeply dishonest ruling in Dobbs didn’t simply mischaracterize history in order to impose a minority religious belief on all Americans. It attacked the rule that restrains government’s intrusion into the private lives of its citizens. Its “reasoning” would allow fundamental rights–to bodily autonomy, to the choice of a marriage partner, to decisions about procreation– to be decided by legislatures chosen by “democratic” majorities.

Unless you are prepared to argue that the right to make those very personal decisions is not a fundamental constitutional right, allowing abortion and contraception and same-sex marriage to be decided by majority rule is no different from putting my choice of reading material, or your choice of religion, up to a vote of your neighbors.

The reason so many people are outraged over Dobbs and disgusted by the misogynistic culture warriors in the Indiana legislature is because they recognize that we are arguing about a very basic American principle: the right of each individual to live in accordance with his or her own deeply-held beliefs rather than in servitude to the beliefs of others–even if those others constitute a majority (which in this case, they pretty clearly do not.)

The reason so many women understand  Dobbs to be an assault on women is that its result requires believing that a right to self-determination claimed only by women is not a fundamental right, but a privilege that can be withdrawn by legislative bodies.

By definition, rights don’t depend upon your ability to obtain a favorable decision by a majority of your neighbors. 

Think of it this way: I may strongly disagree with the way in which you are using your freedom of speech. I may think your religion is ridiculous, and your choice of reading material stupid–but I don’t get to vote to shut you up, close your church or censor your books–and you don’t get to vote on my reproductive decisions. 

That’s because fundamental rights are not subject to majority vote.

I’ll end this diatribe with one more repetition of the libertarian principle that undergirds the real “original intent” of America’s particular approach to government–and especially animates the Bill of Rights: Individuals are entitled to live their lives as they see fit, until and unless they are thereby harming the person or property of another, and so long as they are willing to extend an equal liberty to others.

Autocrats and theocrats have a whole lot of trouble with “live and let live…”


  1. Thank You very much. I wish it was more obvious how we fight back against the Trump Court that does NOT agree with you. This is deeply troubling. Several of them lied to the Senate to get those jobs. Can they be removed? Not likely it seems. What do we do?
    The only thing clear to me is to support (with money and votes) the sane party that agrees with Sheila.

  2. Exactly. You state so well why so many women…and men…are upset by the SC decision and continue to be upset with this ridiculous legislative body in Indiana.

  3. Thanks, Sheila, for this: “That’s because fundamental rights are not subject to a majority vote.”

    The only ones who cannot handle this simple truth are the power-hungry or control freaks. They want to be able to rationalize and justify why they have the right to tell you what choices to make.

    As for patmcc, there is no “sane party” because Democrats also abuse this principle which is why abortion is such a powerful wedge issue. It’s a wedge used against males and females. It’s not the only one they’ll use to keep us divided, but it’s a big one.

    That is precisely what this court was supposed to do and why the judges lied under oath to get on the bench. Both parties allowed it to happen for this very reason. If you fail to understand this, you are just an instrument of one party or the other. An unwitting participant in the charade called US democracy.

  4. It is ironic that the political party that keeps harping on the importance of keeping the government in its place, is hell-bent on cramming the government into the decision-making processes that everyone should be entitled to make for themselves.

    Perhaps irony is too weak a concept for this situation. Downright deception seems more appropriate.

  5. Why are politicians making WOMEN’S medical decision; especially regarding a medical condition which requires the participation by men to be an issue for discussion but no discussion or laws regarding their participation/responsibility has ever been addressed? Personally; my FIVE pregnancies were not Democratic, Republican, Independent of Green Party, nor were they autocratic or theocratic. But when the toll taken on MY body, as with all pregnancies, required major surgery twice, it required the documented agreement by my husband to be allowed.

    “The question, by the way, is who decides–who gets to make a particular decision, not what the decision should be.” In my particular situation it did require WHO made the decision and WHAT that decision should be; it took a battle to obtain that permission for surgery and I had to make arrangements for child care, housecleaning, cooking and laundry to be done while I was unable to carry on those duties myself. It was the decision of old white men at that time who are no longer with us today but have been replaced by a new breed of old white men making medical decisions for women while being kept sexually active by pills and other supplies provided in the same health care policies which require special paid coverage for pregnancies while birth control comes closer and closer to being denied. Don’t argue that women also agree to anti-abortion; they are the result of primarily religious control and allowing themselves to be controlled by their male partner.

    Thank you patmcc: “The only thing clear to me is to support (with money and votes) the sane party that agrees with Sheila.” If we can’t beat ’em, join ’em! But beware of which party you are joining.

  6. 76% of the vote in the Indiana state assembly who supported the ban on abortion are men. 80% of the gallery listening most of whom opposed the bill are women. How both men and women vote during the Mid Terms across the nation shall vindicate or reconcile the Republican attack on women’s health.

  7. Don’t be a fascist or an enabler of fascists. Vote straight Dem in November. Rinse and repeat in ‘24.

  8. Good stuff! Jonathan Rauch offers an excellent quick over view of our fundamental human rights and their origins in his book The Constitution Of Knowledge. It’s a good idea to study up on history of the Middle Ages ruled by church compared to the Founders sourcing Enlightenment ideas to write the Constitution.

  9. I think abortion should never have entered the political arena ( and of course this was a Republican manipulation) in the first place. Whether or not it’s a question of my right, and I did have an elective abortion with no regrets, I know of at least 4 women and 1 man who believe that this “fight” is one to stop the, as they see it, murdering of innocents. This is their cause, they see it as a holy war of sorts, and are not to be swayed. They maintain that my right to kill an innocent is evil and it is not only their right, but their duty, to stop it. You can maintain that they are under the sway of their religion but it is not helpful.

  10. As we’ve seen in Kansas, when people get to vote, they often disagree with their politicians. For them it’s all about the party not the people. What a bunch of sheep.

  11. Yes, Norris. Now the duty we all must share is to get those women to the polls in November and in 2024. Republicans and their utter, un-civil hypocrisy must be removed from government absolutely. We should NEVER EVER allow another Republican President who will appoint the ideological liars and idiots to the bench. We should have seen this coming with Scalia, Roberts, Thomas and the last three immoral wretches.

    Despite what Todd says (I avoided the word “thinks”) Republicans alone are responsible for the demise of our democracy and the destruction of the Constitution. Full stop.

  12. The Court’s refusal to incorporate the Ninth Amendment under the 14th Amendment, as it has for specifically enumerated fundamental rights, is inconceivable, given the plain language of the Ninth:

    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    If the Ninth were incorporated, all of these individual rights/bodily autonomy arguments would disappear, because they’d be answered by the Ninth Amendment. Refusal to do so allows the Court to continue to pick and choose which rights the people enjoy.

  13. Here’s one for the sake of argument, for those noble men in the Indiana State Assembly who stand up and declare: “I represent Jesus” and then vote for the ban on abortion. >>” Can a fetus be implanted in a man?
    A surgeon would then implant an embryo, created by in-vitro fertilization, in the wall of the man’s peritoneum, the membrane that lines the abdominal cavity. If all went well, the fetus would grow inside the abdomen until delivery by cesarean section.”<<

    How many men who stand up for “Pro-Life” will stand in line for in-vitro fertilization to lead by example to honor their stand and word? Then we shall see who stands to declare “I represent Jesus” before the vote.

  14. Our differences about abortion should be decided by us as individuals…not by theologians, or politicians or our neighbors! It’s not a decision for anyone other than myself and my medical practitioner. It’s a unique issue and must be dealt with in a unique way.

    PERIOD! (Or the lack of one, if you want to see it that way.)

  15. Meanwhile, back at the ranch, we may just end up being saved by religions that don’t believe that the fetus is a human being. There’s a new lawsuit on behalf of Buddhists, Jews, Muslims and some rational Christians, arguing that the new laws violate THEIR religious freedom.

  16. As Gym Jordan said last week on the floor of the House about the bill to ensure the legality of same-sex marriage, ” Codifying Marriage Equality Would Reverse What People Voted For In Their States”…moving to mob rule? What if they voted to legalize lynching?

  17. Peggy – thanks for that info. I was hoping there would be all kinds of lawsuits filed by groups claiming their religious beliefs are now being violated after Roe v Wade was overturned. I hope there will be many such lawsuits filed.

  18. I used to think about freedom of religion and the you are free to practice your religion until it harms others. I.E., The state could step in when a devil worshiping satanic cult decided they were going to practice human sacrifice.

    The Catholic Church seems like it always had the position that life started at conception, but I would not be surprised to find out this position was taken to ensure that Catholics would out breed their muslim, jewish, etc… neighbors. But through clever political manipulation over the the last 50 years, that minority that sees abortion as human sacrifice, has grown from the 10% of Catholics to maybe 30% of Catholics and Evangelical Christians.

    Once you have gotten to this position, I can see how the new Indiana Abortion ban can be called “disappointing” because it does not go to far enough. At the same time, the opinion on when a fetus is considered a person can be debated on many aspects, it seems that a majority of that debate is religion based.

    At this point it looks like it will come to State level courts enforcing basic rights, since I think state level supreme court justices might be selected for their jurisprudence skill rather than their adherence to Christian Nationalistic principles. I hope that a successful state level challenge to abortion ban may come from religion based argument from a religious tradition that does not adhere to such an extreme position as the current pro-life movement and we achieve some middle ground.

    But this might just wishful thinking on my part.

  19. Dan,

    “I think state level supreme court justices might be selected for their jurisprudence skill rather than their adherence to Christian Nationalistic principles.”

    Catch up, man. https://ballotpedia.org/Partisan_election_of_judges

    As you may guess, if the governor or legislature nominates, the person could be partisan.

    One example: North Carolina’s Supreme Court races are shaping up to be expensive, with the four candidates for the state’s two seats raking in a combined total of nearly $3.2 million in fundraising.

  20. Sheila;
    Great opening today, and asks the question,who get to,and whats next?

    ive been the working class in the ditches since 1972, i went to anti war protests earlier, the music (lets be real, it helped end that war) the marches,and tragedy of kent. open the door to political scam,nixon,and we had a full course meal of the American way. for a few more years it was lean and trying to make ends meet.but as we all lived thru them i watched the labor movement and whos getting what. i watched from calif the trade unions busted for contractors liceneses, and the wages tumbled, while wall street grew. this was only 1980. my wages stayed flat ever since. trying to buy a truck for a buisness,never happened,were a cancer (against small buisness) and the banks see us as crap. sit back and understand, in our buisness,the labor laws went belly up, now were demanded,if you want the job to drive a truck, sign this waver to take money from my check for being late with a load,(though theres no reason why,god and such,it wasnt going to happen to be on time) theres other wavers now demanded by such employement, sign here or your not working here.(like gig work) the fact is, the investor class has changed it all. they have taken the freedoms of work,and your personal life and put it into thier pockets. own a i phone? and see how fast they demand your at thier beck and call,for minimum wages. it started back in reagans time. since then the right side of the isle and plenty of the left side,has only signed off your freedoms to be. some sign for the hope mr right wing will sign his, etc. media has made this fiasco a advertisers dream world$$$. but since were all too busy to read, we sideswipe the headlines for the whole picture. all totaled, these few past lines, have granted the rich,wannbes and nazis the right to now demand from their own. like its some sort of shadow walking behind you ready to pounce.
    turn around and look at them, and pounce back. i dont live to see others being shoved and kicked for others amusmement, and believe me, their are others who see this as amusement. social media has made hiding out and being anonymous for the irresponsable sloths. human intervention since the sight of man (or woman) has made what we are, not todays toads who must feel pushed aside or taking sides by whatever means they muster off the net. the biggest threat i see, is no privacy. but when one slings (face,twit etc)it onto the net,you dug your own grave. this is the only site i deal with, i find the people here resposible and educated. i gather the knowelege transform it into what the sloths i deal with and relate,face to face. the slice of freedom still afforded to me for now.

    wash out the right,lather in the future..

  21. “Downright deception” is spot-on.
    I notice that the germ of the Libertarian idea, as born in Ayn Rand’s fevered brain is becoming a bit better known:
    That after fleeing the old USSR following that gov’t’s seizure of her father’s pharmacy, in the 192o’s, and coming to the
    US, she championed a brutal murderer, here, as a man “liberated” from societal constraints! He was the template for
    the hero in her “Atlas shrugged.” And, the libertarian Republicans seem to be thrilling one another, as they duplicity
    work to let go of the reasonable constraints of the very society that elected them to high office.

  22. “One more time” may not be enough. Thanks, Sheila, for this treatment of the rights issue.

  23. This state legislature doesn’t respect the wishes of the majority of women and have infringed on women’s basic rights. It’s threatening to women’s well-being to be subjected to such invasive misogynist sexist laws. Where do they get the idea that women can’t make healthcare decisions for themselves? We all know it’s from their personal religious beliefs, that they insist everyone else must follow. Problem is (with their group think) American women aren’t sheep.
    These lawmakers have overstepped with their elitist attitudes and misunderstanding of US Bill of rights. We have the right to be protected from the majority and minority when they violate those rights.
    I wish when citizens were elected to the legislature, they would be required to take a class on the rights of citizens (Constitution & Bill of Rights) before voting.
    This legislature is throwing us back into days like prohibition and all the problems that caused.

  24. Dan, actually, the Catholic Church was in alignment with Thomas Aquinas, who wrote that a fetus gained personhood at the quickening, about 16 weeks. I’m not certain that there has been an ex cathedra pronouncement to the contrary, but American Catholic bishops seem to think so.

  25. “Why do you suppose that those legislators and their constituents don’t get to vote on other matters: the right to free speech, the right to pray to the God of your choice (or not), the right to read books of one’s own choosing, the right to be free of arbitrary searches and seizures, the right of citizens to cast votes in elections…”

    Legislatures don’t get to vote on those matters because those are rights explicitly guaranteed by the Constitution. Roe, however, was based on a right to privacy that the Court came up with in the Griswald case because they wanted to strike down a dumb Connecticut law regarding contraception. The Court couldn’t find a textual basis for doing so, in Griswald so it came up a “right to privacy” (supposedly derived from “penumbras” of rights that are actually in the Constitution) which they then used to strike down the law.

    The trouble with this approach to jurisprudence is that there are no limits whatsoever on what issues unenumerated rights such the right to privacy can be applied. If I want to shoot up heroin in my home, why doesn’t my right to privacy protect that? It doesn’t only because judges on their own have decided not to apply the “right to privacy” to that issue. Are they free to do so down the road? Absolutely. When judges are free to come up with new constitutional rights that aren’t textually tied to the Constitution there are no limits on the power of those judges.

    People like the policy outcome in Roe so they don’t mind the jurisprudence used to arrive at that decision. Liberals have for years been perfectly fine with activist courts using unenumerated rights via substantive due process to enact their policy preferences. But what happens when conservative courts start using substantive due process to adopt conservative public policy preferences? I recently ran across an article from a liberal constitutional scholar who argued that the liberals are making a mistake tying policies such as abortion, same sex marriage, etc. to unenumerated constitutional rights. He argued most of those decisions could have been tied to enumerated constitutional provisions. The article warned about substantive due process becoming a weapon that conservative judges are going to begin using. Unfortunately, I didn’t bookmark the article and am still looking for it.

    Friday night I was out with some friends in Broad Ripple. My friends (who make Bernie Sanders look like a raving conservative) argued that the Kansas referendum result was a big middle finger to Judge Alito who wrote Dobbs. I couldn’t have agree less. Alito’s decision didn’t ban abortion. It said that the issue should have been left to the democratic process. The Kansas referendum made it clear that the pro-abortion rights side can win the issue at the ballot box and does not have to rely on unelected judges. In Indiana, the anti-abortion rights side won via the legislature. As things play out, when a side overreaches and becomes extreme, they’ll get knocked down at the voting booth. Both sides will eventually have to moderate their views and compromise.

    Democracy is a system in which both sides get their say and then the voters decide. As ugly as it usually is, democracy is also cathartic, allowing consensus even on contentious issues to be attained. Roe short-circuited that process and left a never healing wound in our body politic. It radicalized both the pro choice and pro life sides, allowing them to take positions that didn’t have to be vetted at the ballot box.

    The abortion issue has been the most contentious issue of my lifetime, by far. I know I’m in the minority, but I’m finally confident we can start reaching a consensus on the issue and put it in the rear view mirror.

  26. Peggy – just a reminder – we have freedom of religion — if it is the “correct” one. American Indian tribes can’t use Peyote in their religious rituals and I am not certain about the status of the Orthodox Jewish army officer who was required to remove his hat while indoors, in violation of Jewish tradition.

    Sheila – excellent post, but all of your examples are of rights specifically mentioned in the amended Constitution. Remember, the Ninth Amendment and the first part of the Second Amendment are just pretty words to this court.

    Instead, let’s try to imagine life after The Revolution (not that one Todd). Newly elected officials in Arizona, Wisconsin, Michigan, and other starts pass laws that “unfit” people who “seek to replace us (Jews, Muslims, Blacks, and yes, even Latinos) need to be sterilized. All white women of “proper stock” must breed. If their husbands don’t produce offspring, the State will annul the marriage and remarry them to a properly fertile, white man with pure northern European blood (dare we say Aryan?)

    That seems to be perfectly constitutional under Dobbs. After all, marriage and reproduction are subject to the whims of state laws.

  27. Thanks for this. It felt to me that not enough was being made of the fundamental attack the Dobbs ruling really was. Women are on the front line of the defense right now, because abortion was the first battle. It won’t be the last.

    Thomas’ concurrence was horrific. (And I just can’t get past the fact that he explicitly listed a bunch of related cases that he thinks should be overturned EXCEPT the one that would affect him personally — Loving. It is so blatantly dishonest that I almost can’t believe he decided to proceed with the concurrence in the face of it. He must know how history will judge his opinion. Mustn’t he?)

    Also, it feels like not enough is being made of the many bills aimed at equating fertilization and personhood. Forget fetus, at the point of fertilization, the egg hasn’t implanted yet, and it’s not even a blastocyst yet, let alone an embryo. This can lead to investigations and prosecutions related to miscarriages, for example. Until now, it would have been difficult to imagine that a woman distraught over a miscarriage (should she be aware of it at all) might have to face the task of proving that it was no fault of hers. But, now I can definitely envision that future, and not just as a dystopian book or tv show.

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