IT'S MORE THAN ROE!

Yes, Roe v. Wade is dead as of this morning, killed by six reactionary supreme court “justices,” three of whom were illegally placed on the court and a fourth put there as a “stick in the eye” to a country that rejected a pissed-off president.

But the official death notice is nothing in comparison to the announcement of future action by the six reactionaries.

Most importantly, Justice Thomas’ concurring opinion in Dobbs makes clear that the true fork in the road for the far-right diehards came over the decade before Roe was decided, when the court found “substantive due process” in the Fourteenth Amendment and decided a series of cases that protected the rights to contraception and private sex acts, extending all the way to 2015 with the right to same-sex marriage.

IT IS CLEAR THAT THE ENTIRE LINE OF SUBSTANTIVE DUE PROCESS CASES IS NOW UNDER ATTACK. (Yes, I shouted)

As Thomas puts it, what he calls the “legal fiction” of substantive due process is “particularly dangerous” and he favors “jettisoning the doctrine entirely.”

How explicit is Thomas? Very.

“For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [sodomy], and Obergefell [same sex marriage]. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”

Thomas notably omits Loving (interracial marriage) from his analysis.

In his concurrence, Kavanaugh highlights Loving and other important substantive due process and assures the public that the majority decision in Dobbs leaves them untouched, writing, “I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.”

To which I say BULL! And SHIT!

The value of stare decisis is the certainty and predictability it provides. Overruling precedent has never involved a small tweak to jurisprudence or a minor tweak to our understanding of the Constitution.

Think Brown v. Board of Education. That is the level of social change and upheaval we are looking at.

Dobbs is illustrative. In the mind of “(In)Justice” Thomas, the country made a wrong turn 50 or 60 or 75 years ago and has been on the wrong track ever since. We’re taking a U-turn to get back to the “good old days.”

This decision will send us backtracking through decades of jurisprudence, lifelong decisions, and public policy choices to resume on a new uncharted path where there is no substantive due process.

It’s not only the substantive due process cases. The Right has wanted to overturn the past 85 years of Supreme Court jurisprudence, going back to the decisions made during the New Deal that found authority for federal government intervention in the economy through the commerce clause.

Every single New Deal and Progressive Era decision is now in the sights of these reactionary scum. The right to have pure food and drugs. The 40-hour work week. The abolition of child labor. The right to form a union. Social Security. Medicare. The right to clean water and clear air.

THEY WILL GO AFTER ALL OF THESE!

Justices Breyer, Kagan and Sotomayor wrote an unusual joint dissent, in which they devote pages to alerting readers to the pandora’s box opened by the conservative majority officially overturning abortion rights. You should read it.

They dismiss the notion that the death of Roe won’t precede the death of other privacy rights, many of which flow from the same parts of the Constitution.

“The Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven—all part of the fabric of our constitutional law, and because that is so, of our lives.”

In other words: rights like same-sex marriage, privacy in same-sex relationships and access to contraception are next on the chopping block.

When the majority roots nullification of abortion rights in the country’s earliest history and the fact the word “abortion” isn’t in the Constitution, it’s difficult to see how those other rights survive. “Same-sex marriage” certainly wasn’t accepted in colonial days; the word “contraception” appears nowhere in the Constitution; those who wrote the 14th Amendment wouldn’t have accepted interracial marriage.

“Faced with all these connections between Roe/Casey and judicial decisions recognizing other constitutional rights, the majority tells everyone not to worry. It can (so it says) neatly extract the right to choose from the constitutional edifice without affecting any associated rights. (Think of someone telling you that the Jenga tower simply will not collapse.)”

They also sound the alarm on the dire things to come on the topic of abortion itself. Red states, they predict, will not content themselves with run-of-the-mill restrictions, or weeks-long gestational bans. Many will immediately ban the procedure outright.

“Under the majority’s ruling, though, another State’s law could do so after ten weeks, or five or three or one—or, again, from the moment of fertilization. States have already passed such laws, in anticipation of today’s ruling. More will follow.”

The idea that the country will peaceably settle into a patchwork of anti-abortion states comfortably side-by-side with those protecting access is folly, they argue. Anti-abortion activists have always aimed to ban the procedure everywhere — and this decision only opens the floodgates for them to do so.

“Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest.”

Alito, writing for the majority, permeated his writing with support for fetal personhood, the banner under which anti-abortion activists argue that the procedure should be outlawed.

In the meantime, they predict, “interstate restrictions will also soon be in the offing.” A state legislator in Missouri has already introduced a bill that would criminalize traveling to Illinois or elsewhere to obtain an abortion. More like this are sure to follow.

Blue states are responding by shoring up their laws to protect the obtaining and performing of abortions within their borders, setting up what the three justices call “interjurisdictional abortion wars” where there is very little precedent and history on which to rely.

Several major corporations in the past ten days have taken steps to modify their health plans to cover travel and other expenses incurred by an employee in obtaining an abortion. Start thinking of the “culture wars” that come from the Far Right going after these “woke” corporations for doing this. What DeSantis has done with Disney will happen across the country.

The dissent is clear-eyed in what this decision means for the country: a whole flotilla of constitutional rights associated with bodily autonomy and privacy in personal relationships under threat — and in the meantime, women being forced to carry to term pregnancies that result from rape or incest, or that threaten their lives, or that they simply don’t want.

“Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”

Abraham Lincoln famously said that the country could not exist “half slave and half free.” We have returned to that condition today.

This is the first time in my life that I really do see the very serious possibility of the United States becoming two nations in fact, not just in hyperbole.

The civil war of one part of the country attempting to impose its will on the other has begun. This day is as momentous as was April 12, 1861: the day the traitors fired on Fort Sumter.

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