WASHINGTON, DC – Following the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, Constitutional Accountability Center President Elizabeth Wydra issued the following reaction:

As feared following the leak of Justice Alito’s opinion last month, the Court’s conservatives get the Constitution outrageously, dangerously wrong.

The five-Justice majority says that the “Constitution makes no express reference to a right to obtain an abortion,” but does not meaningfully engage with what the Constitution does say: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The right to abortion is rooted in this broad and sweeping language in the Fourteenth Amendment.

These explicit protections for equality and liberty were written into our national charter at a time when the question of what it truly meant to be free, as a matter of law, was urgent and pressing. After the brutality of enslavement, true freedom, human dignity, and equal citizenship demanded an irreducible minimum of liberty that included the right to decide for one’s own self whether, when, and with whom to form a family. The Fourteenth Amendment provided this measure of equality and more. The Court’s conservative majority—which claims to follow text and history where it leads—instead turns a blind eye to these central precepts at the heart of the Fourteenth Amendment.

Most Americans understand the plain truth reflected in these protections: a person cannot truly be free, and is not truly an equal member of society, if they do not get to decide for themselves this most basic question of bodily autonomy. And yet five justices now unabashedly rip this freedom away, relying on a breathtakingly flawed reading of the Constitution.

Indeed, nowhere does Alito’s majority opinion grapple with this fundamental constitutional truth. It frighteningly bulldozes past the Constitution to achieve a long-desired ideological agenda. And the opinion provides the foundation for taking away other fundamental rights the Court has long protected. Abortion rights might be the unenumerated rights that fall in this particular opinion, but other essential rights—including the right to marry or to access birth control—hang by a thread as well. As the joint dissent by Justices Breyer, Kagan, and Sotomayor says, “no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone.”

At the conclusion of this earthshaking Term, there is no denying that the Court’s decisions are pointing toward a dramatic remaking of American society.

The Court has overturned a fundamental right to liberty and equality—the right to choose abortion and decide for oneself basic questions of health and destiny—with a reading of the Constitution that is so narrow and so wrong that it threatens even more rights of privacy, autonomy, and dignity. In addition to this repudiation of the constitutional guarantee of equal protection and liberty, the Court has hamstrung efforts to protect against gun violence, another urgent challenge of our time.

The backward and cramped constitutional vision presented by the conservative majority on the Court bears alarmingly little relation to our actual Constitution, which generations of activists amended over time to protect the rights of individuals to thrive as equal and free Americans and the ability of government to act for the public good.

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Resources:

CAC case page in Dobbs v. Jackson Women’s Health Organization: https://www.theusconstitution.org/litigation/dobbs-v-jackson-womens-health-organization/

“Reproductive Originalism: Why the Fourteenth Amendment’s Original Meaning Protects the Right to Abortion,” David Gans, SMU Law Review Forum, March 24, 2022: https://scholar.smu.edu/smulrforum/vol75/iss1/5/

“The Through Line From ‘Brown’ to ‘Dobbs’,” David Gans, The American Prospect, May 23, 2022: https://prospect.org/justice/throughline-from-brown-to-dobbs/

“The Framers Were Big Fans of Liberty, Unlike Samuel Alito,” David Gans, May 18, 2022: https://slate.com/news-and-politics/2022/05/framers-liberty-unenumerated-rights-samuel-alito-dobbs-roe.html

“No, Really, the Right to an Abortion Is Supported by the Text and History of the Constitution,” David Gans, The Atlantic, November 4, 2021: https://www.theatlantic.com/ideas/archive/2021/11/roe-was-originalist-reading-constitution/620600/

“The Mississippi Abortion Case Threatens the Right to Use Birth Control, Marry, and Even Make Choices About Sex,” Slate, David Gans, October 12, 2021: https://slate.com/news-and-politics/2021/10/mississippi-abortion-birth-control-lgbtq-scotus.html

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Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit CAC’s website at www.theusconstitution.org.

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