One More Time

There are numerous reasons to vote straight Blue this November. But forgive me for returning to my argument that reproductive rights tops them all, and not just because women deserve the same bodily autonomy as men.

In a very real sense, Justice Alito threw down the gauntlet in Dobbs. That decision didn’t just eliminate a constitutional right that American jurisprudence had recognized for fifty years–it dealt a potentially fatal blow to the philosophy upon which our  entire constitutional edifice rests.

Before I (once again) explain why that assertion is not hyperbole, let me connect the dots between Dobbs and the recent, blatantly theocratic decision from Alabama equating a frozen embryo with a living, breathing child. As Jamelle Bouie recently wrote in the New York Times, key parts of the Republican coalition demand fetal personhood.

There’s no question that the Alabama decision would not have been possible without the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which revoked the constitutional right to an abortion. In doing so, the court gave states and state courts wide leeway to restrict the bodily autonomy and reproductive freedom of Americans, in the name of protecting life.

That the Dobbs decision would threaten I.V.F. was obvious from the moment the Supreme Court released its opinion in June 2022. That’s why, toward the end of 2022, Senate Democrats introduced a bill to protect the right to use in vitro fertilization. It did not come up for a vote.

Bouie points out that the Justices who delivered Dobbs were placed on the Court as part of an explicit transaction in which Trump traded American women’s rights for the support of Evangelical voters.

What’s important, for thinking about a second Trump presidency, is that fetal personhood is the next battlefield in the anti-abortion movement’s war on reproductive rights, and conservative evangelicals are among those groups waving the standard. As one such activist, Jason Rapert of the National Association of Christian Lawmakers, told The New York Times regarding the Alabama court decision, “It further affirms that life begins at conception.”

At least 11 states, The Washington Post notes, have “broadly defined personhood as beginning at fertilization in their state laws.”

It does not matter whether Trump rhetorically supports access to I.V.F. treatments. What matters is whether he would buck the priorities of his most steadfast supporters and veto a bill establishing fetal personhood across the United States.

As we all know, he would not.

A Republican win in November would guarantee further erosion of reproductive rights– but as I have repeatedly argued, it would do far more than that.

Dobbs was a frontal attack on the doctrine of substantive due process, often called the “right to privacy.” That doctrine confirmed the American principle that certain “intimate” individual decisions—including one’s choice of sexual partners or the decision to use contraception– are none of government’s business.

Constitutional scholars argue that the right to personal autonomy has always been inherent in the Bill of Rights, but it was  explicitly recognized in 1965, in Griswold v. Connecticut. Connecticut’s legislature had passed a law prohibiting the use of birth control by married couples. The law prohibited doctors from prescribing contraceptives and pharmacists from filling those prescriptions.The Supreme Court struck down the law, holding that whether a couple used contraceptives was not a decision government is entitled to make.

The majority recognized that recognition of a right to personal autonomy—the right to self-government—is essential to the enforcement of other provisions of the Bill of Rights.  Justices White and Harlan found explicit confirmation of it in the due process clause of the Fourteenth Amendment—which is where the terminology “substantive due process” comes from. Wherever it resided–in a “penumbra” or the 14th Amendment—the Justices agreed on both its presence and importance.

The doctrine of Substantive Due Process draws a line between decisions that government has the legitimate authority to make, and decisions which, in our system, must be left up to the individual. I used to tell my students that the Bill of Rights is essentially a list of things that government is forbidden to decide. What books you read, what opinions you form, what prayers you say (or don’t)—such matters are outside the legitimate role of government. The issue isn’t whether that book is dangerous or inappropriate, or that religion is false, or whether you should marry someone of the same sex, or whether you should procreate: the issue in America is who gets to make that decision.

Enabling autocracy–destroying our current system of democratic majorities restrained by the Bill of Rights– requires eliminating substantive due process. Dobbs thus opened a pathway to an enormous expansion of government power.

Outlawing IVF is just a way station…..


  1. A friend posed a related question. If the frozen embryos are legal children, can they all be used as tax deductible dependents? Maybe 20 “Children”?

  2. It has never been about reducing the number of abortions. It has always been about controlling women and their reproductive choices.
    For example, the recent Indiana legislation, HB 1426, which requires hospitals to offer a form of reversible birth control to women after they give birth, to prevent pregnancy for a period of time, has eliminated the use of IUDs as an option. If the goal is to prevent unwanted pregnancy, why would they not offer IUDs? For that matter, if they want to reduce unwanted pregnancies, why would the GOP not support sex education and access to contraceptives for young women?
    Answer: because they want a return of the “good old days”, when women knew their place; barefoot, pregnant, and in the kitchen.
    The MAGA/GOP is telling us every day who they are and what they will do as soon as they regain power. We better believe them.

  3. It is obvious that there are members of SCOTUS who qualify for impeachment for acting against the U.S. Constitution which they swore to protect and uphold. The current obstruction is that only members of the U.S. House of Representatives can file impeachments and it is the Republican elected majority who qualify for impeachment who are blocking this due process to protect their own jobs. I believe this qualifies as a “Catch 22” situation as well as another fitting movie title, “The Russians Are Coming, The Russians Are Coming”. Maybe we should actually begin with “One Flew Over The Cuckoo’s Nest”; the realities of this entire nation’s current situation have lost all sense of reality in our day-to-day lives. My question is how can one man bring about the downfall of this entire country’s foundation of democracy, Rule of Law and the U.S. Constitution?

    “Enabling autocracy–destroying our current system of democratic majorities restrained by the Bill of Rights– requires eliminating substantive due process.”

    In case you haven’t been watching; our “substantive due process” has already been eliminated. Dobbs and IVF issues pale in comparison when you acknowledge how they happened…one man is above all laws of the land and is upheld by his now privately owned and operated Supreme Court of the United States.

    I will be watching the State of the Union address by President Joe Biden on Thursday night; how will he approach the realities of the “state” we currently live in with those who, due to free speech will be yelling insults at him from the House audience. But, unlike sitting in a theater audience while illegally vaping and was finally removed after giving her date a “hand-job”, she will be allowed to remain in the House to yell lies and insults at the President. This is all part of the “State of the Union” today.

  4. James Todd, 6:39 a.m.; why not offer vasectomies to men, women have never had the power to impregnate themselves. This issue has been ignored throughout this entire birth control battle; pregnancy has always been a one-ON-one situation.

  5. It is abundantly clear that the SCOTUS, as currently constituted, will not protect fundamental rights under the Constitution. The answer will be, as it has always been, the ballot box. As the title to Robert Hubbell’s newsletter asserted this morning, we must elect democrats; reform the Court; defend the Constitution; and thereby preserve democracy. Nothing else will save us from an aspiring dictator.

  6. I am SO glad to no longer be of child-bearing age since becoming pregnant now, whether by choice or not, includes the threat of complete strangers having the authority to make decisions about my life and my health. The radical right wing members of the Supreme Court have chosen to kill millions of women and destroy the lives of millions of other women.

    Although the Dobbs decision doesn’t apply to me, I still worry that it could affect my daughter and my three granddaughters. I’m old enough to remember when pregnant women and teenage girls died from attempting to end their pregnancies by using metal coat hangers. They either bled to death or died from horrible infections. Indiana families that could afford to buy plane tickets to NYC would fly the mom and teenage daughter there for an abortion that had been arranged by their family doctor. There was an underground network of doctors that would make the arrangements for a safe abortion by doctors in NYC.

    Today there are still too many women and teenage girls that can’t afford to travel to another state for a legal abortion. I wonder how long it will take for statistics about self-induced or “cheap back-alley” abortions since the Dobbs decision become available.

  7. Having come from a place in spacetime where and when gender roles were different from today, I accept the historical reality behind the concept of male and female roles based on physical strength and size versus the ability to create children. For our early millennia, there was no arguing the reality of sustainability that brought about that behavior, which became human culture.

    Culture specifically adapts us to change with the times, but not capriciously. We tend to do as our parents and other adults we learned life from did but within limits. The pace of change is therefore retarded but not prevented.

    Human progress is now so rapid that culture is too much of a drag. Some people keep up with progress, and some are terrified of it, if not in their souls, then on their TVs in the form of the relentless entertainment fantasy we need now because we have no other important purpose.

    We are, as a society, ripe for takeover by the propaganda that all fantasies are built on.

    Everything else is a detail.

  8. The GOP’s goal is to make this a Christian Nation, so the Bible is their text–not the Constitution. They know they can have this in the Deep Red States, where dark money rules.

    They are passing rules in the states, knowing that, thanks to Trump and the retiring McConnell, they have the support of SCOTUS. Watch them go after the LGBTQ community next, like Russia has done.

    Women will still support Trump and the GOP. It’s baffling how someone can vote against their self-interests, but we see it all the time in the US. They prefer a mob boss and religion over the Constitution and democracy.

    Sadly, the Supreme Court was unanimous in keeping Trump on the ballot in Colorado, negating the other attempts by states to keep him off the ballot. They have no problem with an insurrectionist running for POTUS. #amazing

  9. ” Trump traded American women’s rights for the support of Evangelical voters.” Indeed, because in his world everything is about him, regardless of harm to anyone else.
    So, at my crossing guard post, this AM, a fellow who bicycles by regularly was wearing a tee shirt with a U.S. flag on it, over which was superimposed a bright red cross! Yes, I did behave myself.

  10. When Congress breaks down, we are forced to rely on the courts for protection. When both Congress and the courts have broken down, how will we protect ourselves? There are only two ways. One involves voting. The other involves bloodshed. Vote as if your life depends on it, because it does.
    Horrors! I just caught myself on the verge of agreeing with Vernon about being glad I’m old.

  11. Aside from today’s issue but a very serious problem which is spreading rapidly. This area in Indianapolis has no access to Facebook accounts, message from a friend yesterday near San Francisco reported that problem. Last week or so the NATIONAL AT&T outage, late last week a Spectrum outage for at least TEN HOURS. We are being forced by the government to run our lives in more and more areas electronically by computer and/or mobile phones. Hacking is the obvious problem but is it lack of qualified workers here or is it Russia or China or is it MAGA? If I sound paranoid; I plead guilty and because most people I know use Facebook and its Messenger rather than E-mail, I currently have no access to family or friends.

  12. If you combine the substantive due process clause of the Fourteenth Amendment with the little used Ninth Amendment it’s easier to call the bluffs of Alito, Thomas, et al. They seem to be pretty much intent on unraveling the reconstruction amendments, so toss in an “original” amendment so our “originalist” justices can have a little something to chew on. Can you say hypocrites?

  13. So; Facebook outage around the world; it’s back again but for how long or…what will be next to go?

    Peggy Hannon, 12:07 p.m.; add the 10th Amendment, which carries the 9th Amendment even further (Powers retained by the states and by the people). Obviously, not even Chief Justice Roberts is aware of these rights as covered by the Constitution.

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