Tag Archives: Dobbs

Well, What Do You Know? It DIDN’T Get Worse

Yesterday’s post ended with a gloomy “I don’t know how it can get worse.” Today, the news is considerably brighter.

I have no idea what day it is in the U.S. (Here on board the cruise ship,  where we keep crossing the international dateline, the elevators helpfully have carpets that tell us the day of the week–they’re changed daily. Unfortunately, so are the clocks…). Whatever. The day before yesterday (I think), I accessed the results of the 2023 election, and boy do I feel better!

I’m sure everyone who follows this blog already knows what a very good day Tuesday was for Democrats, and for reproductive autonomy.

Ohio voters incorporated abortion rights in that state’s constitution. (They also gave a green light to weed…). In Virginia, where the Republican governor had promised to pass a “moderate” ban on abortion if voters gave him control of the state’s legislature, the Democrats hung on to their majority in the state Senate and took control of the House.

In Red Kentucky, Democrat Andy Beshear defeated a “pro life” Republican to retain the Governor’s office. Less surprising–but still satisfying–Democrats won big in New Jersey.

The news was even good in depressingly Red Indiana.

In Indianapolis, in what has been billed the most expensive Mayoral race ever, Democrat Joe Hogsett won handily over  Jefferson Shreve, who put more than thirteen million dollars of his own money into one of the worst and most annoying campaigns I’ve seen–he came across as a creepy guy willing to say pretty much anything to get elected (Issue consistency wasn’t his strong suit.) Given that this will be Hogsett’s third term–and given that he is not all that popular even among Democrats–it should have been closer; as it was, it was just a monumental waste of Shreve’s money.

With the exception of a disappointing loss in Carmel, indiana, where the Republican candidate repeatedly refused to criticize the local Mom’s for Liberty theocrats who’d “accidentally” quoted Hitler, Democrats did surprisingly well around the state: they flipped several mayoral offices from Republican to Democratic, including  Evansville, Terre Haute, Lawrence, Michigan City, West Lafayette and Hobart.

Every local election is ultimately about the candidates in that race, but I remain absolutely convinced that Democrats owe a big thank-you to Justice Alito and his profoundly stupid, dishonest and unAmerican decision in Dobbs.

What a significant majority of Americans understand–at least at a visceral level–is that Dobbs isn’t simply about a woman’s right to terminate a pregnancy–important as that right is. It is about the power of the state to dictate our most personal decisions.

Back when I was a Republican, the GOP stood for limiting government interventions to those areas of our common lives that clearly require government action. That is a position that is entirely consistent with the libertarian premise underlying America’s Bill of Rights: the principle that individuals should be free to make their own life choices, unless and until those choices harm others, and so long as they are willing to accord an equal right to others.

Today’s authoritarian, theocratic GOP has utterly abandoned that commitment to individual liberty–it has morphed into a party intent upon using the power of government to impose its Christian Nationalist views on everyone else.

As Morton and I wrote in our recent book, the assault on reproductive choice–the belief that government has the right to force women to give birth–is only one element of an overall illiberal, statist and very dangerous philosophy. The fundamental right of persons to determine for themselves the course of their own lives and the well-being of their families has become the central political issue of our time–and it isn’t an issue that affects only women.

For the last fifty years, the nation’s courts explicitly recognized the importance of drawing a line between decisions government can properly make and decision that–in our Constitutional system–must be left up to the individual. The decision in Dobbs very clearly threatens that fundamental understanding, and at some level, America’s voters recognize that threat and its very dire implications.

For much of the last fifty years, Republican electoral success relied upon turning out single-issue “pro life” voters. So long as Roe v. Wade remained in force, Democratic voters continued to base their votes on a range of issues, confident that the right to choose remained in place.

Then the dog caught the car.

Tuesday’s results bode well for 2024 and a return to American principles.

Women And Politics

“Housekeeping” note: My husband and I are departing today for a two-month cruise to Australia and New Zealand. I will have internet and plan to continue blogging, but I’m not sure when items will post, as time zones will change and we’ll cross the international date line a couple of times, so please bear with me!

Last week, a chapter of the Indianapolis Kiwanis invited me to discuss the book that Morton Marcus and I recently published. This is what I told them (sorry for the length…)


As I know you are all aware, Morton Marcus and I recently co-authored “From Property to Partner: Women’s Progress and Political Resistance.” When we began working on it, neither of us expected the political tsunami that would be ushered in by the Supreme Court in Dobbs v. Jackson.

Morton and I have been friends for some 30+ years, and he initially approached me about collaborating on a book that would identify and document the scientific and technological changes that had facilitated women’s progress. Morton absolutely bathes in data, and he was determined to share reams of evidence about the effect of things like railroads, bikes, and household appliances on women’s emancipation.

We both understood that genuine biological differences between men and women had shaped human cultures for thousands of years; and we both wanted to track how science and technology had minimized the social impact of those differences—how changes in the job market made physical strength less important and how various inventions reduced the time needed for housework, which is still considered “women’s work.” That sort of thing.

Morton did agree with me that the most important advances, by far, were the ones that allowed women—for the first time in history– to plan, defer or abstain from procreation without the necessity of remaining celibate. Birth control—especially the pill– allowed women to pursue educational and career choices that had formerly been available only to males.

Control of reproduction allowed women to participate fully in economic, civic and political life.  No other advance has been nearly that consequential.

But control of reproduction ran headlong into fundamentalist and paternalistic religious beliefs that continue to influence America’s politics and culture. Although religions and denominations within them vary considerably with respect to birth control, abortion and the role of women, fundamentalist theologies support a patriarchy that is deeply rooted in history, politics and privilege. In the book, we explored the teachings of different religious traditions about women—the very different beliefs held by different religions about women’s roles in general, and the very dramatic differences about decisions to terminate a pregnancy.

As some of us are old enough to remember, before the advent of reliable birth control, every sexual encounter carried the risk of pregnancy, and pregnancy generally meant the end of a woman’s economic independence. A pregnant woman was almost always unemployable; for that matter, a married woman in her childbearing years was similarly unemployable, since there was always the possibility of pregnancy and the resulting need to care for offspring, seen as a uniquely female responsibility.

Most women were therefore economically dependent upon the men to whom they were married. (Refusing to marry was no panacea: unmarried women were routinely labeled “old maids,” and were objects of pity.) If her marriage was unhappy, or worse, violent, a woman with children was literally enslaved; given the barriers she faced to participation in the workforce and her resulting inability to support herself and her offspring, she usually couldn’t leave. Absent charitable intervention or inherited wealth—or friends or relatives willing to house and feed her and her children—she was totally dependent on her husband’s earnings.

That reality is why access to reliable contraception –and in situations where that contraception failed, abortion—was thus absolutely essential to women’s independence. If women could plan when to procreate, they could also plan when not to procreate. They could choose to schedule or defer motherhood in order to pursue education and career opportunities. The availability of the birth control pill didn’t just liberate millions of women,  its availability and widespread use triggered enormous changes in social attitudes—some of which opened the door to legislation that advanced both females’ economic independence and their ability to more fully participate in the civic life of the nation.

The Dobbs decision, over-ruling Roe v Wade, came down when we had just begun our research for the book; it changed our focus and presented us with an obvious question: how would American women respond? What political consequences would we see to a decision that allowed states to deny women access to adequate healthcare during pregnancy– and also threatened to return them to second-class citizenship?

We knew we were about to see what happens when the dog finally catches the car…and you can probably guess our conclusion from the title of our final chapter: “When Mama Ain’t Happy, Ain’t Nobody Happy.”

So much for our book. I want to conclude with a point that is not widely understood. As politically consequential as the Dobbs decision has turned out to be, most non-lawyers really don’t understand how fundamentally it undermined constitutional rights that have absolutely nothing to do with abortion or the status of women.

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 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.

Most constitutional scholars would argue that the right to personal autonomy has always been inherent in the Bill of Rights, but it was explicitly recognized in the 1965 case Griswold v. Connecticut. The Connecticut legislature had passed a law prohibiting the use of birth control by married couples. The law prohibited doctors from prescribing contraceptives and prohibiting 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 a right to personal autonomy—the right to self-government—was necessary to the enforcement of other provisions of the Bill of Rights, which would be difficult or impossible to respect without the recognition of such an underlying right.  Justices White and Harlan found explicit confirmation of it in the due process clause of the Fourteenth Amendment—which is where the title “substantive due process” comes from. Wherever it resided–in a “penumbra” or the 14th Amendment—the Justices agreed on both its presence and importance.

As I’m sure you all know, procedural due process protects Americans’ right to a fair process—a fair trial or other government proceeding. Substantive due process distinguishes 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 is who should get to make that decision.

Substantive due process draws a line between decisions government should make and those that must be made by the individual involved. Aside from its other logical and historical defects, the Dobbs decision ignored 50 years of precedents confirming that principle.

Dobbs also changed the focus of our little book, which became much more political than we had originally intended. That said, we had fun collaborating on it—and if you haven’t already bought it, I hope you will!!



In Case You Were Wondering…

In case you were wondering whether women will save America, as Morton Marcus and I argued in our recent book, or whether the GOP has radicalized a sufficient number of female voters  to prevent a Blue Wave and block necessary reforms…

A few days ago, I wrote about the misnamed “Moms for Liberty,” and noted that the activism of rightwing women isn’t a new phenomenon. And that’s true–a “quick and dirty” list of reactionary women’s organizations  would include at least the following:

  • The Daughters of the American Revolution (DAR), which has  historically attracted conservative-leaning women and  supported right-wing values.
  • The National Federation of Republican Women (NFRW), which serves as a grassroots network supporting Republican Party candidates and their increasingly radical policies.
  • Concerned Women for America (CWA) is a (truly scary) conservative Christian women’s organization supporting a fundamentalist list of “traditional family values”– it  opposes  abortion, same-sex marriage, and LGBTQ rights, among other positions.
  • Turning Point USA (TPUSA) isn’t an exclusively female organization, but it has a significant female following. It focuses its efforts on those “liberal” college campuses.

And of course, we now have “Moms for Liberty.”

On the other hand, there is an unmistakable and growing gender gap in American electoral politics: the Pew Research Center’s analysis of nationally validated voter data reported that, in 2020,  57% of women supported Biden, while 42% supported Trump. (I personally find it difficult to understand why any sentient American would support TFG, let alone 42% of women, but facts are facts….)

When it comes to policymakers, the differences between male and female legislators are pretty stark. On the one-year anniversary of the Dobbs decision, the Guardian ran an article–with pictures!–of all state-level legislators who had voted to ban or dramatically restrict abortion, and as the headline pointed out, they were “mostly men.”

To be precise, there were 1292 Republican men, 214 Republican women, 53 Democratic men, 11 Democratic women, and 2 independents.

Those numbers do reflect a considerable gender gap, but one that–I would argue–doesn’t reflect some inherent aspect of gender identity so much as individual experience. If American males had lived under a government that controlled what they could do with their bodies, while allowing women to control theirs, the gap would probably be reversed.

As I have repeatedly argued, Americans aren’t arguing about whether or not an individual woman should be able to abort a fetus. The issue is far more fundamental: What should be the limits of government authority over individual citizens?

“Moms for Liberty” is such a ridiculous title because giving government at any level–school boards or state legislatures or federal agencies–the authority to tell parents what their children can read or learn is the antithesis of liberty.

Giving government the power to force women to give birth, handing over to government the power to overrule the medical judgments of doctors and the considered decisions of parents, allowing government to overrule businesses’ decisions about diversity and  inclusion–handing such broad authority to government is the opposite of liberty.

Our government was founded on the libertarian principle that people should be free to make their own decisions about their lives–their goals, their beliefs, their telos–so long as the individual is not harming the person or property of someone else, and so long as they are respecting the equal rights of others.

We can certainly argue about the nature of the harms that justify government interference, but that principle precludes defining “religious liberty” as the privileging of  (selected) Christian beliefs. It precludes imposing the policy preferences of legislators on businesses that are otherwise behaving lawfully. It precludes empowering some parents to dictate to others what their children may read or what medical interventions are appropriate. It absolutely precludes forcing women to give birth.

Actual liberty demands a lot of people–first and foremost, the ability to live in a society where people who don’t always agree with you have the same right to personal autonomy that you do.

Women and men who understand the fundamental nature of the MAGA assault on liberty will vote Blue in 2024.

Arrogance Is Never Having To Say “Sorry”

Linda Greenhouse is one of my favorite Supreme Court reporters, and she recently published a commentary in the New York Times, titled “Is There Any Twinge Of Regret Among Anti-Abortion Justices?”

Marking the one-year anniversary of the decision in Dobbs, Greenhouse noted that  the decision has propelled a crisis in reproductive health care that is “acute and growing,” leading to alarming consequences.

Greenhouse first shared the history of another case that had generated “alarming consequences”–consequences that, in that case, led to a speedy reversal.

Because Jehovah’s Witnesses believe that saluting the flag or reciting the Pledge of Allegiance amounts to worshiping secular authority, they prohibit their school-age children from engaging in the practice. In 1940, with war raging in Europe and patriotic fervor rising at home, the Supreme Court ruled that the Constitution provided no religious exemption from what many public schools deemed an essential civic duty. The decision upheld a Pennsylvania school district’s expulsion of a Jehovah’s Witness brother and sister. A single member of the court dissented.

A mere three years later, even though the United States itself was now at war, the court reversed itself. In a new flag-salute case from West Virginia, three members of the original majority switched sides and two justices who had joined the court since 1940 voted with them. One of those two, Robert Jackson, wrote the new majority opinion, strategically avoiding the contested question of religion in favor of an eloquent defense of free speech.

“Compulsory unification of opinion achieves only the unanimity of the graveyard,” he wrote in West Virginia State Board of Education v. Barnette. 

The first decision, in Minersville School District v. Gobitis, had unleashed a wave of violence against Jehovah’s Witnesses: in the wake of a ruling that many saw as evidence that Witnesses were anti-American, mobs attacked individuals and destroyed their churches. Some 2,000 Witness children were thrown out of school, and some of their parents were criminally prosecuted.

Greenhouse then  enumerated some of the dire medical consequences of Dobbs, and then asked her question:

A year after sowing so much chaos and misery, are any of the five members in Justice Samuel Alito’s Dobbs majority sorry? Even a little? I’m not so naïve as to think there is even a slim chance they would reverse themselves. I just wonder whether they feel even a twinge of regret.

As she points out, the immense harm to women couldn’t have come as a surprise. “Valuing fetal life over the lives of women and girls was no doubt a feature, not a bug, in the majority’s view; that was, after all, the point of Dobbs.”

Greenhouse then proceeds to answer her own question, saying she doesn’t think the Dobbs Justices are sorry. As she notes, a difference between Barnette and Dobbs is that the justices who changed their minds after Gobitis were motivated by facts, not by ideology.  These Justices were chosen because facts would not sway them: Trump announced during his presidential campaign that his Supreme Court appointees would overturn Roe, and all three of his nominees– Gorsuch, Kavanaugh and Barrett– did just that..

Although Greenhouse doesn’t explore the psyches of the anti-Roe justices, Jesse Wegman took a long, hard look at the author of the convoluted decision in Dobbs,  focusing on the recent disclosures of Alito’s unethical behaviors. Wegman’s analysis of Alito’s personality and character–especially his arrogance– are equally applicable to other examples of the Justice’s disdain for settled constitutional analysis.

Wegman points to Alito’s decision to “devote time and energy to a newspaper essay defending himself against charges of ethical and legal violations that had not yet been published”–an essay that “epitomizes the bitterness and superciliousness that he has demonstrated in regular doses throughout his years on the Supreme Court.

Most judges, whether by temperament or fidelity, avoid the spotlight. They prefer to follow rules and let their opinions do the talking. That has never been Justice Alito’s way. For most of his 17 years on the court, he has appeared to relish playing the role of bare-knuckled partisan soldier, standing athwart history in loyal service to a vengeful, theocratic right-wing movement that elevates religious liberty for some over basic freedoms for all.

Wegman notes that one reason public trust in the court is in free fall is demonstrated by Justice Alito’s “smug, defensive reaction” to criticism.

The moral of this story is not that the highest court in the land should issue decisions consistent with public opinion. As legal scholars often note, the Bill of Rights is counter-majoritarian. The moral is that –in the absence of compelling evidence (a la Barnette)–Justices should respect precedent, and resist confusing their idiosyncratic, psuedo-religious commitments with constitutional principles.

Tune in tomorrow for the second lesson– the need for Supreme Court reforms.

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.