Women And The Law

The final part of my “War on Women” argument is mercifully short.


A Constitutional U-Turn

In addition to the First Amendment’s prohibition against legislating religious doctrine, for the past fifty years Americans have relied upon a constitutional doctrine known as substantive due process, often called the “right to privacy.” That doctrine has strengthened the conviction of most Americans that certain “intimate” individual decisions—including one’s choice of sexual partners or the decision to use contraception– are none of government’s business.

The right to privacy was explicitly recognized in a 1965 case titled Griswold v. Connecticut. The Court was considering the constitutionality of a Connecticut law prohibiting the use of birth control by married couples. (The law also prohibited doctors from prescribing or pharmacists from selling contraceptives.) William O. Douglas’s majority opinion reflected the logic of its conclusion. He wrote “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”

The majority recognized that a right to personal autonomy was necessary to the enforcement of several of the amendments, which Douglas noted would be difficult or impossible to respect without the implicit recognition of such an underlying right. In a concurrence, Justice Goldberg found that same right in the Ninth Amendment, and Justices White and Harlan argued that privacy is protected by the due process clause of the Fourteenth Amendment—hence the doctrinal title “substantive due process.” Wherever it resided–in a “penumbra” or the 14th Amendment–a majority of the Justices agreed on its presence and importance.

Procedural due process protects Americans’ right to a fair process—a fair trial or other governmental proceeding. Substantive due process distinguishes between decisions that government has the legitimate authority to make, and decisions which must be left to each individual. In the fifty years since Griswold, the recognition that the U.S. Constitution protects personal autonomy and respects the right of each individual to self-determination has powerfully influenced American culture. Much of the anger over the Supreme Court’s decision in Dobbs can be traced to shock over Justice Alito’s assault on what most Americans had come to consider a bedrock principle:

Government has the right–indeed, the obligation–to intervene when a person’s behaviors are harming people who haven’t consented to that harm. (Mask mandates to protect public health are an example.) Otherwise, government must leave us alone. Secular and religiously tolerant Americans who had dismissed warnings about growing fundamentalist assaults on that principle, confident that their right to self-determination was secure, reacted to the conservative Christian overtones in Dobbs, justifying an invasion of that right, with predictable shock.

As the foregoing discussion has made clear, different religions—and different denominations within those religions– have very different beliefs about women and procreation, and what amounts to the Court’s elevation of a particular version of Christianity has engendered an enormous and negative reaction. Survey research has confirmed that a majority of Americans, including a majority of religiously-affiliated Americans, disagree with the Court’s decision, and are even more opposed to emerging efforts to make access to contraception difficult or impossible. Large numbers of Americans see the overturning of Roe and cases like Hobby Lobby[ as part of an escalating war on women.


On November 8th, the American people need to send an unmistakable message to the arrogant theocrats and paternalists on the Court. A massive vote for Democrats–BLUE NO MATTER WHO–will send that message, in three parts: it will be a repudiation of the Court’s current trajectory; a signal that the Court’s legitimacy has dangerously eroded; and it will convey a willingness to make significant changes to the Court’s composition and jurisdiction.

A failure to send that message will be seen as acquiescence to the Court’s retrograde direction, with very negative consequences for all Americans, not just women.



  1. Once again you document one of the many reasons I have departed the US as the one I grew up in (born 1954) is gone and the one I served in its Navy (17August1973 to 16August1977) is also gone. I do not expect it to return or to survive. It saddens me to say so therefore I decided to leave. I have found a much more peaceful and democratic country in which I can spend my retirement not worrying about a knock at the door in the middle of the night, or worse the door being kicked in during the middle of the night. Here the rule of law is much more respected than in the US. Sure there are some things with which I disagree, but overall I’m better off here.

  2. As a recently assailed “Bernie Bro,” apparently, I don’t get it. The ‘Vote Blue No Matter Who’ crowd has given us a POTUS who can’t exit a stage.

    Voting Democrat has not fixed the source of the problem because the Oligarchy and their media control both parties. It’s a reality TV show production. It’s become so absurd I cannot even watch it on TV.

    I refuse to participate in this carnival. I fully understand why Stan has moved out of the country, and our younger people too.

    For those interested, Vladimir Putin gave a speech yesterday to the handlers of our politicians. Not the media and politicians – those pulling the puppet strings in the West since WW2. I’m breaking it down for my website because this country’s identity politics has completely lost me.

    I don’t think I’m the only one.

  3. Sheila, I read your most informative and insightful post this morning with as much an open mind I could muster. The question that brings the litmus test home for me is: does anything I do as a matter of private choice bring harm to others or even to myself?

    When it comes to voting, for me, it is a choice of who will do the most good and least harm in public office. Generally that choice has supported a Democrat.

    Dr. Stan … I wish you peace and happiness no matter where you choose to live. The Philippines are home to the world’s largest and longest reticulated pythons. The good news is apparently they prefer pigs over humans. However … 🤔

  4. Todd: You and many others are about to find out.

    And when it comes time to point the finger…..it will be at people like you…..people who just gave up.

  5. Dr. Stan; while happily living in “…a much more peaceful and democratic country…” are you still an American citizen voting in our elections? If so, I can’t help but wonder which party you are supporting and why you are interested in anything the United States is doing. You deserted your homeland, believing you have escaped all ills and wrongs you left behind, why don’t you leave us to ourselves to work out our problems which are no longer your concern. Why do you believe your time zone has anything to do with anything here or there?

    BTW; IF you are accepted into the Catholic Church, will your first visit to the confessional be to let them know you “are not accepting all the RC tenants” required by that religion?

  6. I’m sorry you guys have given up on America. I haven’t. I’m almost 80 years old, but I still have some fight left in me. I’m not going to let anybody run me off or scare me into submission.

  7. Norris, Terry and myself – mea culpa; we have all let Dr. Stan and Todd’s verbiage veer us away from the issue on the blog today as well as Sheila’s follow-up message about the importance of the November 8th mid-term election. Thanks to her for allowing us to vent at this time of Constitutional crisis and the violence against minorities and our own lawmakers and their families.


  8. Jo Ann … I agree with your opinion. Shiela has contributed a very important message every American should give discernment as they exercise a right to vote. Thank you.

  9. If yesterday’s news about a MAGA fan beating an eighty-two year old man with a hammer doesn’t bring up thoughts of brown shirts on the streets of Berlin in the 1930s, then you haven’t been paying attention. If Ye’s attack screed on Jews doesn’t bring up thoughts of the Holocaust, then you haven’t been paying attention. If Justice Thomas’s stay on Lindsey’s testimony, rather than his more appropriate recusal doesn’t bring up thoughts of kangaroo courts in the south in the first 2/3 of the 20th century, then you haven’t been paying attention. If women nearly dying from toxic pregnancies doesn’t bring up thoughts of our country pre 1973, then you haven’t been paying attention.

    Wake up! Pay attention! Vote Blue!

  10. Islamic Clerics, I imagine, would say if asked that regulating how women dress is really about controlling their sexual behavior. They have magic powers irresistible to men, and therefore men need to be protected from their magic. So I guess it’s really about managing men’s behavior in response to women.

    Now American men are starting to agree. Of course, it started with school dress codes and now it has progressed to some control of conception in a strategy returning to the use of the fear of unwanted pregnancy to scare women into holstering their magic powers.

    Governement-managed culture is now a thing here as well as in theocracies.

  11. I don’t usually respond to Todd’s posts, but today I must.

    Sorry, but that kind of — I don’t know what to call it – attitude gave us Nixon over Humphrey with tens of thousands of extra deaths in Vietnam. It gave us Republican ideologues on the court enshrining the “oligarchy” you rail against in Citizens Uniterd. It gave us McConnell’s ability to stack the courts. It gave us Trump, and I’m sorry, I never worried about my safety as a Jew, before Trump became President and legitimized violent bigotry. (Other minorities had that to fear, sadly, but not at these levels.)

    So far, with rare exceptions, all elected Republicans have been either actively abetting or approving by their silence.

    Vote Blue (or Independent in Utah).

    Here is my layman’s questions for a legal scholar to answer –
    Isn’t a “right” something that isn’t subject to a vote?
    If the Constitution recognizes that not all rights are enumerated in the Constitution, then why do Justices insist that only those rights that are enumerated count?

    Excellent series of posts, Sheila.

  12. I hope for the Blue Tsunami on November 8, but I feel like Charlie Brown…”Maybe THIS time will be different. Maybe Lucy will not pull the ball away at the last minute…maybe THIS time democrats will actually show up in number and wash away the stain of MAGA.
    There are enough registered Democrats to overcome the gerrymandered lines drawn in many places in Indiana and across the country, if we will just show up and vote. VOTE dammit!

  13. Elizabeth Anscomb was a noted Catholic philosopher a few decades back, made a statement at Cambridge University; “fornication or adultery on hampered by contraceptives is a lesser evil than a husband and wife using a form of contraception during intercourse’ “an act of contraceptive intercourse is an act of rather gross unchastity, marriage doesn’t make it respectable. If you are going to do that sort of thing it’s better to go do it with a whore, not with your wife! The church has always considered contraception as a breach of Chastity.”

    Catholic philosophy? Another example of philosophical doctrines creeping into, or altering, scriptural teaching and laws. Nowhere does Scripture refer to, or point to the evils of contraception, lol!

    What if someone told you, wearing seat belts were evil! They also told you that dying in a car accident was evil, would a person stop driving given the necessity of it for that particular individual. No! You figure that seat belts are forbidden so you’ll take your chances, and hope your predestined path does not include a horrifying death!

    Contraception is not forbidden in scripture, and predestination is not a scriptural tenant either, it’s philosophical! In other words, some influential individuals opinion passed on as God’s word!

    The apostle Paul said in the first century, “do not go beyond things that are written,” (1st Corinthians 4:6)

    But time and time again, religious leaders go beyond things that are written in Scripture. He warned against philosophies that would create disunity in the congregation. This particular case he was talking to the congregations in Corinth.

    The Church will discuss Chastity and yet, Nuns who are supposed to be married to Christ, having unprotected intercourse with Priests, then, killing the babies and burying them somewhere on the grounds or cementing them up in walls. All the while claiming to be worthy of teaching flocks, lol! I guess if you’re going to disregard Church Dogma and not use contraception while you’re fornicating, why double the sin by an abortion? Just murder the baby and bury it somewhere.

    You couldn’t make this up if you wanted to.

    The Greek philosophical practice of Stoicism, by the Stoics of course, was for some reason adopted by the church in more than likely the second century, where any form of pleasure including intimate marital relations was sinful. In other words, sex was for procreation and nothing else. This gave “birth” to Priests and Nuns engaging in illicit sexual practices including abusing children.

    Contrast with Proverbs the fifth chapter, “may your own fountain be blessed, and may you rejoice with the wife of your youth………. Let her breasts satisfy you at all times. May you be Captivated by her love Constantly.”

    The church likes to use Onan, and his death, as a sign that contraception is wrong. Onan was not put to death because of contraception, he was put to death for breaking the law of brother-in-law marriage. Basically giving his dead brother’s wife Tamar a son, to carry on his name. But if Tamar could not bear a child, then Onan would receive his brother’s wealth. So Onan practiced coitus interruptus, basically spilling his seed on the ground. He signed his own death sentence for breaking the law of brother-in-law marriage. Not for performing a contraceptive practice. (Genesis 38:8-10)

    See? Easy peasy! When engaged in debate, you bring up these facts which most people are not even aware of that are in Scripture. And that their particular religious Dogma is antithetical to scripture! But their Philosophical antithesis that they quote as Church Dogma and Doctrine, is completely against Scriptural teachings.

    Scripture gets blamed for church teachings which are diametrically opposed to each other, Scripture is not religion!

  14. I trust women more than men. Always have, always will.
    They have failed as leaders.
    Pelosi was the one to take charge on Jan 6th and proved to do it with force and resolve. It’s terrible what happened to her husband. This is what male leaders have done to the world.
    Let’s let the women be in charge.

  15. Events of the recent past show that the Republican-appointed SCOTUS justices are pure ideologues and ignore the precedents set by rational predecessors. Alito, Thomas, Barrett, Kavanaugh, et.al., are the WORST people EVER to be on the court – except maybe Lewis Powell.

    They will abet the doors being kicked in. They will approve of government interference whenever some screeching, right-wing ideologue says they must.

    Lightner, despite is abject cowardice, might be right about those prospects. Todd has given up on just about everything. The rest of the people on this blog struggle to make sense of the dystopia we’re seeing covering our beloved country.

    Yes. A blue tsunami is necessary. Will it happen this time? I doubt it. Heck, even Herschel Walker polls with a 1 point lead in Georgia. Well, Republicans would rather sell their mothers into slavery than vote for a Democrat. Sadly, we’ll all have to endure what those fools so richly deserve.

  16. Vernon is getting close with his sad toss at Republicans who won’t vote for Democrats but convincing people to cast a ballot for the opposition when it doesn’t avail them anything isn’t an incentive.

    We’ve been through this how many times?

    Someone even said it feels like the Chuck and Lucy football scam. Why?

    Because that’s precisely what the oligarchs have been doing for centuries. The politicians aren’t the decision-makers – they’re just puppets.

    Putin’s speech yesterday wasn’t delivered for the masses – it was directed to the Western leaders who call the shots behind closed doors (the oligarchy).

  17. All the DEMs registered can VOTE BLUE and it may not make a difference. The largest group of potential voters are unaffiliated – and they are turned off by politics, scared and busy having post-COVID fun.

    Cynical Saturday…

  18. Sheila is absolutely right, but if we want our rights back we must force those we elect in a system awash with $billions, to dismantle the corrupting mechanics of oligarchy. We have no power, according to a thoughtful and thorough study. ““the preferences of the average American appear to have only a minuscule, near-zero, statistically non-significant impact upon public policy.”” NONE. Until we somehow manage to do something about that corruption, what we want is irrelevant. Insightful and important read: https://www.linkedin.com/pulse/us-democracy-oligarchy-edward-s-winfrey

  19. Todd,
    You are forever measuring all against a perfect world? (and perhaps holding out for it to materialize?)

    It’s an imperfect world. It always will be. Vote Blue, no matter who. Then make it better from there. Wars are won, one battle at a time. We are losing the war because we have been losing the battles, one after another, since Jimmy Carter was forced out of office by the Christian Nationalists who are now in full control of the NAFP (New American Fascist Party – formerly still formally the Republican Party).

  20. I haven’t given up on America or Americans. I don’t ascribe to the tenets of Republicanism,but I have given up on the Democratic Party. I will not be voting “Blue No Matter Who”. It’s just too silly. There will be some blanks on my ballot. I am voting against Ryan Mears. That’s the way it goes. YOU must EARN my vote. Just as a student must earn their grades. I do not owe, and will not ascribe blind fealty to a private organization. Especially an organization that has taken my vote for granted in the decades past.

    Btw,as repugnant as Republicanism is,the hypocrisy from Democrats is even worse.

  21. When the Fascist/Nationalists have taken over fully, as they already have on a state and federal level in Indiana, what any of us want or think will matter even less than it does now.
    The bigotry and hatred spewed by those who consider themselves more “equal” that anyone identified as “other” will progress from verbal abuse to violent action. It is already happening right before our eyes, but almost never to us directly. When it happens to us directly, as the story goes, who will come to our defense? There are few left with the integrity or influence to stand up to it.
    80 years ago, it happened all over the world to great destruction and staggering loss of lives. Are we going to survive this one? I am glad I am old. It also means I have a lot left to lose when I fight back.
    Those who are blind to the corruption of the GOP or choose to passively vote by not voting are the ones to be feared. Who will they blame when their door gets kicked in?

  22. The point of the Russian disinformation campaign was to sow discord and reduce Americans to a state of crippled hopelessness.
    I have seen wonderful progress made during my lifetime. The election of Trump was like a kick in the gut, but his defeat in 2020 strengthened my hope the the majority of Americans are not gullible, gutless quitters. If you won’t vote for candidates who support our Constitution, you are part of the problem.

  23. JD,

    Maybe I’m not quite as old as everyone who always claims they are glad they’re old, but you are very insightful!

    Everybody remembers Marv I’m sure, he was pretty insightful, even though he had a certain agenda. And he was run out of Dodge!

    I believe Todd was talking about discernment? Anyway, that tends to be an issue! What do you discern from history? What lessons are learned? What societal tenets have been created? Unfortunately, not many lessons are ever learned. Because the same thing keeps happening! A caveat to that, is, this time, it’s going to be especially brutal for all of those who have not actually experienced brutality on a personal and up close situation.

    One thing that absolutely and positively will happen, someone in authority will go after these religious organizations and outlaw them or disband them. That means that there would have to be some sort of major World change of opinion and also a world change in personal freedom. Going after that huge cash of treasure and influence will seem to bring some relief for a moment!

    I would venture to say, that there will be something happening within the next decade. There are too many things happening at the same time! Political unrest, wars, coos, food shortages, spreading famines, drought and a shortage of drinking water, the cost of what food will be available, most will probably be priced out of that market.

    When people are looking at their pastors and their churches, wanting water, food, shelter, safety from Anarchy in the streets, a place to sit and listen to propaganda, there will be no helper for them!

    Nazi Germany on steroids? There will be a difference though, Nazi Germany used religion as a tool to subjugate. The next reiteration of authoritism will not include that religious element, it will actually see religion as a threat! And, they won’t be wrong.

    I really hope I’m around long enough to see it! Because it is something that I have been saying on this blog for years! But just like a horse drawn carriage going full tilt with blinders covering the horses eyes completely, everyone thinks they know how to get where they want to go. But, in actuality, they will never make that destination. More than likely, they’d find a cliff to ride over or a precipice to call home!

    When the pendulum swings back from its current state of affairs, it will be a violent swing, a violent reaction. One that probably will go too far! And, the consequence will be something nobody will be happy with.

  24. Elizabeth Anscomb would not be welcome in my home, or my life! What sickness she preached!! Noted Catholic philosopher?
    But, I’ll bet, Alito would love to be her best buddy!
    We need a MASSIVE Blue Wave!!!!!!!!!!!!
    Thank you Sheila.

  25. John Sorg: Did you intentionally write this:?

    “…some influential individuals opinion passed on as God’s word!

    The apostle Paul said in the first century, “do not go beyond things that are written,” (1st Corinthians 4:6)”


    “Noted Catholic philosopher..”

    Which is the same as “Noted hiphop philosopher” but less grounded.

    Your compartmentalization amazes me!

    Smekens: “I don’t think I’m the only one.” Oh, no, you’re not. There were many of your bent (and I use the word advisedly) among the 74.2 million. I’m sure they’ll return.

  26. Lucy is ready to move the football again, of course. Some gems here today, but with the usual clinkers mixed in. Scrolling rapidly past clinkers is satisfying. And I really miss ol’ Marv! Now, there was a character!

  27. Ormond,

    Maybe you’re starting to get it! Religion does not equate into scripture. Scripture is not religion! Religion is loaded with hypocrisy. If you’re a student of scripture, it’s easy to spot the hypocrisy. But if you’re listening to the din of blathering no nothings, well, you formulate an opinion on nonsense.

    Religion tends to be a tool for the sole purpose of control and power! It has nothing to do with compassion, empathy, love, concern, a good conscience, or even grief. Because if you grieve, you would have had to have loved first. Religion has really nothing to do with God! But it has everything to do with philosophy, scripture is the fly in the ointment that’s why the Bible was not read by the average person until very recently, comparatively anyway, in history.

    Unfortunately, when you try to point out these things, and what scripture says, compared to philosophical tenets which are more easy to believe and much easier to manipulate. That’s why, Dogma is never based on scripture!

  28. Aging Girl – you can trust women more than men, but I trust people based on what they do. For every Pelosi there’s a Majorie Taylor Greene who may have an outsized influence on the next session of the House. Also consider the three British female Prime Ministers. And another, the most liberal Justice the Supremes have seen in my life time was a man, William O Douglass – Barrett is far on the other side. Just saying. Not that I wouldn’t love to see more women in power. I am thrilled about Justice Jackson being on the Court, but not because she is a Black Woman, rather because I like the way she sees the world and the Court’s role in it.

    One more observation – the biggest problem in America is gullibility – on the right, believing any fantasy that Fox broadcasts; on the left, believing that if they wait or vote third party, eventually they will win; in the middle, that the Right wouldn’t really overturn Roe, or Obergefell or Griswald — or they won’t refuse to pay government obligations until cuts are made to Social Security and Medicare.

  29. Liked your stuff as usual, JoAnn! Nothing personal ever. Retired teachers of English just have it in our DNA. I’m working on efforts to curb that paper-grading urge!

  30. I liked Len’s observation today, especially the second paragraph. As to the first, I like Douglass but we have had other good courts as well, and by good I mean courts that considered the realities of their day and refusing to use originalism as a cover for their holdings. His second paragraph nails the underpinning of our political brawl (gullibility) and how it is affecting the present court’s destruction of “settled law” and the Republicans’ destruction of social programs to fund their own initiatives via, among other things, threats to ruin the gummint’s credit.

    So what to do? A good start would be to attack the undermining agent of gullibility by taking a page from the book of Herr DeSantis and adding to the 19th century curriculum of Reading, Writing and Arithmetic a new scholarly metric – Civics. The hoped for result might be too late to save the Republic, so perhaps someone can figure out to obtain more immediate relief by successfully removing the broadcast license of Fox Spews.

  31. What a way to start my morning! I have never read more bull by supposed educated, well-read blowhards! Everyone has an opinion, (and I do not disagree that they are entitled to such) but they should listen to themselves “preach” about what was, is and should be! If you are so dissatisfied with things as they are, don’t run away, don’t just criticize, DO SOMETHING POSITIVE!
    Run for office, put your ideas, etc. to work in a positive manner. Lip service alone does not accomplish anything.
    I am not a learned individual except by experience, there is no, nor should there be, any “I” in politics. I never accomplished anything of value by myself, there has always been someone “at my back” pushing me to do something. It may be right or wrong but DO SOMETHING!
    I am so sick of those running for office, stating in their campaign ads, “I will do this, I will do that, I am the only solution to your problem.” They say this as they find everything and anything derogatory about those who are running against them! Negativity is prevalent, and it should be positivity.
    This probably won’t get published because I am nobody, just an average citizen who wishes the American Public would wake up and smell the roses!

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