General Discussion
In reply to the discussion: Reading through the Dobbs decision there are so many outrageous statements - but this one [View all]Tumbulu
(6,630 posts)Here is from the beautiful rebuttal :
From dissent: Casey itself understood this point, as will become clear. See infra, at 2324. It recollected with dismay a decision this Court issued just five years after the Fourteenth Amendments ratification, approving a States decision to deny a law license to a woman and suggesting as well that a woman had no legal status apart from her husband. See 505 U. S., at 896897 (majority opinion) (citing Bradwell v. State, 16 Wall. 130 (1873)). There was a time, Casey explained, when the Constitution did not protect men and women alike. 505 U. S., at 896. But times had changed. A womans place in society had changed, and constitutional law had changed along with it. The relegation of women to inferior status in either the public sphere or the family was no longer consistent with our understanding of the Constitution. Id., at 897. Now, [t]he Constitution protects all individuals, male or female, from the abuse of governmental power or unjustified state interference. Id., at 896, 898.
So how is it that, as Casey said, our Constitution, read now, grants rights to women, though it did not in 1868? How is it that our Constitution subjects discrimination against them to heightened judicial scrutiny? How is it that our Constitution, through the Fourteenth Amendments liberty clause, guarantees access to contraception (also not legally protected in 1868) so that women can decide for themselves whether and when to bear a child? How is it that until today, that same constitutional clause protected a womans right, in the event contraception failed, to end a pregnancy in its earlier stages?
The answer is that this Court has rejected the majoritys pinched view of how to read our Constitution. The Founders, we recently wrote, knew they were writing a document designed to apply to ever-changing circumstances over centuries. NLRB v. Noel Canning, 573 U. S. 513, 533534 (2014). Or in the words of the great Chief Justice John Marshall, our Constitution is intended to endure for ages to come, and must adapt itself to a future seen dimly, if at all. McCulloch v. Maryland, 4 Wheat. 316, 415 (1819). That is indeed why our Constitution is written as it is. The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers invitation. It has kept true to the Framers principles by applying them in new ways, responsive to new societal un- derstandings and conditions.
Nowhere has that approach been more prevalent than
Consider first, then, the line of this Courts cases protecting bodily integrity. Casey, 505 U. S., at 849. No right, in this Courts time-honored view, is held more sacred, or is more carefully guarded, than the right of every individual to the possession and control of his own person. Union Pacific R. Co. v. Botsford, 141 U. S. 250, 251 (1891); see Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 269 (1990) (Every adult has a right to determine what shall be done with his own body). Or to put it more simply: Everyone, including women, owns their own bodies. So the Court has restricted the power of government to interfere with a persons medical decisions or compel her to undergo medical procedures or treatments. See, e.g., Winston v. Lee, 470 U. S. 753, 766767 (1985) (forced surgery); Rochin v. Cali- fornia, 342 U. S. 165, 166, 173174 (1952) (forced stomach pumping); Washington v. Harper, 494 U. S. 210, 229, 236 (1990) (forced administration of antipsychotic drugs).
As a matter of constitutional substance, the majoritys opinion has all the flaws its method would suggest. Because laws in 1868 deprived women of any control over their bodies, the majority approves States doing so today. Because those laws prevented women from charting the course of their own lives, the majority says States can do the same again. Because in 1868, the government could tell a pregnant womaneven in the first days of her pregnancythat she could do nothing but bear a child, it can once more impose that command. Todays decision strips women of agency over what even the majority agrees is a contested and contestable moral issue. It forces her to carry out the States will, whatever the circumstances and whatever the harm it will wreak on her and her family. In the Fourteenth Amendments terms, it takes away her liberty. Even before we get to stare decisis, we dissent.