This commentary is by Joseph Ronan, a resident of Sharon and an attorney admitted to practice in Vermont, New York, Pennsylvania and the District of Columbia.
With the dramatic reversal of Roe v. Wade, it is now abundantly clear that the Trump Supreme Court is coming after your rights.
Chief Justice Roberts, a conservative traditionalist who has tried to work an incrementalist approach, has been swept aside by the radical five Justices of Thomas (whose extreme views have been shocking for years), Alito (a Catholic partisan), and the new kids on the block — Gorsuch, Kavanaugh and Barrett (at least two of whom openly fibbed under oath to Congress that Roe is “settled law,” without mentioning plans to “unsettle” it).
These radical five are attempting to reshape — and, in a very brief time frame, have broadly succeeded in reshaping — American constitutional law back to a fabled and fictional “traditional” America where men carried guns and women had no rights. (I’m not the first to point out that the Constitution does not contain the words “woman” or “she.”)
Make no mistake, this is no joke. Protected rights, they now proclaim, must be “deeply rooted in history,” a history that started with slave-owning, male anti-democratic plutocrats setting forth what turned out to be an enlightened view that, over two centuries of evolution, led us to imagine what our country could be.
One can perhaps snigger at claims about Jewish space lasers or Rudy’s sweat-running hair dye, but these five extremists are now the majority of the Supreme Court and have shown that they care not a whit for “precedent” that does not coincide with their partisan and religious views. As has been said, justice and/or the law (and there is a difference) is what these five people say it is, based on their partisan and religious views. If that doesn’t scare you, you aren’t paying attention.
The two recent and retrograde decisions of the court, overruling Roe and overturning New York’s century-old restrictions on carrying a gun, have one common outcome: More people will die, most likely disproportionately people of color and low-income people.
Let me say that again: More people will die in the name of “traditional” American values.
What happened to the rationale of when guns are outlawed, only outlaws will have guns? The new version of this is: When abortions are outlawed, disproportionately poor women and women of color will die. The debutante from Houston will fly to New York City for the weekend to attend to her problems.
Justice Alito’s decision in the case reversing Roe (Dobbs v. Jackson Women’s Health Organization) consists of over 70 pages of invective on the theme of how egregiously wrong the prior decisions were (Roe and later cases), how Justice Roberts’ proposed incrementalist approach (which would have upheld the Mississippi law but left Roe otherwise intact) was not good enough, and attacking the dissenters for being overly committed to precedent.
As Jim Morrison put it back in the day and nicely summarizes the attitude of the Trump Supreme Court: We want the world and we want it now.
Round 1 goes to the Trump Supreme Court, with three members apparently handpicked because they would reverse Roe and revere the Second Amendment above what should be a common-sense right not to be shot. That round is over. Justice Alito tells us that “the Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
The rest of the battle will involve several further rounds. One round will focus on the issue of exactly who it is who now has the authority to address women’s reproductive rights. A quick read would suggest that Justice Alito means that the various states can set their own rules. But then he muddies the waters by saying that the authority is returned to “the people and their elected representatives,” perhaps suggesting the federal authority may be flexed here.
Would a congressional ban on abortions signed by President Trump or DeSantis in 2025 be constitutional? And the potential incoming Speaker of the House seems to like this idea. Justice Alito’s seemingly positive comments on this point are likely what lawyers call dictum (i.e., superfluous to the actual legal question addressed in the decision), so there may be much more to come on this issue, pending seeing the outcome of this upcoming election (and potentially every upcoming election thereafter).
The other round facing us is how far the Trump Supreme Court will go in rolling back protected rights not just back to the Ozzie and Harriet years, but all the way back to an America where LGBTQ rights and contraceptive rights were not only not “deeply rooted” in American society but were nonexistent.
As has been emphasized already by various commentators, Justice Thomas, not content merely to have won Round 1, skips to Round 3 and opens up in his concurrence an attack on a variety of other personal rights: “in future cases, we should reconsider all of this Court’s substantive due process precedents, including (those addressing same-sex marriage and contraception). Because any substantive due process decision is ‘demonstrably erroneous,’ … we have a duty to ‘correct the error’ established in those precedents.” Justice Thomas (and, we assume, his wife Ginni) want to win now.
The majority offers some initially comforting words on this point: “We have stated unequivocally that ‘(n)othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.’” Justice Alito goes on to say that his opinion has also explained why that is so: Rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter uniquely involves what prior cases termed “potential life.” So far, so good.
But he then gilds the lily by saying that “even putting aside that these cases (on same-sex marriage and contraception) are distinguishable, there is a further point. … Each precedent is subject to its own stare decisis (i.e., precedent) analysis, and the factors that our doctrine instructs us to consider like reliance and workability are different for these cases than for our abortion jurisprudence.” And, to be fair, there are a variety of arguments (largely equal protection) to support these rights even if abortion rights are not protected.
But, wait, aren’t you the Trump Supreme Court who’s made clear that precedent is less important than being doctrinally right and reverting America to righteous historical tradition? So, why should we feel better about things? Yes, of course, Dobbs does not directly support undermining various important individual rights (contraception, same-sex marriage etc.). Those rights were not at issue in that case, but they will be in future cases and soon. And the decision takes us on that path, led by Justice Thomas (and Ginni, who texted Mark Meadows that “the Left is attempting the greatest Heist of our History,” a statement the Wall Street Journal finds embarrassing but not particularly troubling).
I am fortunate enough to have a daughter in her 30s who is in a same-sex marriage with a remarkable young woman. At the risk of sounding like an overly proud dad, they are wonderful people just trying to live their lives in peace. They currently live in New England, a generally amiable place with many well-intentioned people.
My daughter has now asked me several times whether her rights are in danger as a result of this decision — will her marriage be dissolved? She is a young physician — what will happen to her patients? Will she be prosecuted if some fervid politician wants to get on the news?
I have tried to assure her that things will be OK: The arc of the moral universe is long but it bends toward justice. This is the death throes of arthritic reactionary America and in 20 years, things will be different. But the three young turks of the Trump Supreme Court are … young. Then she asks me whether she should move now to Canada or Europe.
I then revert to my failsafe argument: Move to Vermont, you’ll be safe here, people are open and friendly here. Your sister already lives here. That is why I want our Legislature to take the Trump Supreme Court at its word: It represents a doctrinal view that is akin to a Western Taliban, where rights exist only if the state grants them to you (and can be undone at any time) and Christianity is privileged (see the recent decision on the football coach’s right to pray at games).
A well-known TV commentator used the term “fascism” today to describe the notion of requiring a 13-year-old raped by a family member to give birth to the child, and this will happen under the Trump Supreme Court’s decision.
So, let’s explicitly grant these broader rights (women’s reproductive rights, same-sex marriage, contraception, etc.) and make them hard to take away. I suggest that we expand the current proposed Reproductive Liberty Amendment to Vermont’s Constitution (which now addresses only women’s reproductive rights) to include same-sex marriage, contraceptive rights and the other rights now in Thomas’s range-finder.
This amendment would add language to the Vermont Constitution stating that “an individual’s right to personal reproductive autonomy is central to the liberty and dignity to determine one’s own life course.” The ballot measure would prohibit the constitutional right from being denied or infringed unless there is a compelling state interest, which would need to be achieved using the least restrictive means.
I won’t wordsmith the language here but it would be easy to broaden the provision and to add the “substantive due process” rights Thomas so strenuously objects to and is aiming to take away. My understanding is that Michigan is working on a similar approach.
Do it now; don’t dawdle. Let’s act before we lose Rounds 2 and 3.
It’s appropriate to close with two quotes from Philip Roth’s “The Plot Against America,” a story that seemed to me overblown when originally published but now disturbingly on point:
- “… Nor had I understood till then how the shameless vanity of utter fools can so strongly determine the fate of others.”
- “And how long will the American people stand for this treachery perpetrated by their elected president? How long will Americans remain asleep while their cherished Constitution is torn to shreds?”