I have not posted in many months to this blog that I have been writing for over 15 years. This is for two reasons: First, I have been busy helping to grow two start-ups and a venture fund among other pursuits; and second, I have felt less of a need to add my voice to most of the debates of the day. The US Supreme Court’s decision in Dobbs v. Jackson (overturning the reproductive health protections enjoyed by American women for the last 50 years under the Roe precedent) has rocked me out of my lethargy.
To begin, let me make very clear that I regard a woman’s right to choose whether or not to seek an abortion (or to make other health decisions concerning her own body) to be a fundamental human right that should be the law of the land in the US as it is in most advanced nations across the world. As a matter of US law, I would not have overturned Roe although its constitutional foundation is not the strongest. My basis for support is twofold: First, the deference prior decisions of the Supreme Court are entitled under the doctrine of stare decisis; and second, the argument that a woman’s right to choose is one of the fundamental liberties of all Americans protected under the 14th Amendment to the Constitution.
This is not the place to revisit in depth the legal debate over whether the Constitution protects the rights of American women to choose what happens to their bodies — this endeavor took the Dobbs court 203 pages. However, I have a hard time reading the plain words of the 14th Amendment without concluding that a state that tells a woman she must carry an unwanted pregnancy to term has deprived her of her liberty. The notion that the word abortion does not occur in the text of the Constitution nor was the procedure available to the founders generation carries little weight with me. I note in this regard that the Second Amendment similarly does not mention AR-15 attack rifles while these same originalist Justices have no trouble striking down state bans on semiautomatic weapons. Some commitment to the sanctity of life!
As much as I believe this Supreme Court did not need to overreach and reverse 50 years of established precedent, I also believe that the entire US judiciary has been put in the unfair position of being asked to decide the most fractious controversies of our day because members of Congress refuse to stand up and be counted. While not as durable as a constitutionally enshrined right, a simple act of Congress signed by the President could guarantee all American women the right to choose, subject to whatever limits these legislators elected to impose (e.g, no abortions during last trimester, etc.). Legislators regularly balance such interests in adopting new laws; courts struggle to reach political compromises in the guise of interpreting the intent of the framers of the Constitution (including the always contentious issue as to whether they intended it to be a living document or a reflection of 18th Century norms).
There is little doubt that the US Supreme Court has been overly politicized by Trump’s selection of three conservative Federalist Society judges. The opportunity to name the latest Justice, Amy Coney Barrett, only arose thanks to the hardball political treachery of the former Senate Majority leader (denying President Obama’s effort to appoint Merrick Garland early during his last year in office and confirming Trump’s appointment of Justice Barrett in the final days of the 2020 campaign). However, the solution to this lies not in further politicizing the Court by packing it with another three liberal Justices while President Biden holds office. Rather the solution is for Congress to do its job and adopt laws favored by those who elected them.
It would be naive to imagine that in this divided nation we can go back to Justices being confirmed by 80%+ majorities. However, it is not naive but merely hopeful to expect that our elected representatives adopt non-misogynist reproductive health laws that are favored by 60 to 70% of Americans.
Section 1 of the 14th Amendment to the US Constitution
“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.”