More of This Justice Thurgood Marshall offers hope for the future of abortion
On Friday, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization rescinded the fundamental right to abortion, extended by the court in Roe v. Wade in 1973. As feminist legal scholars, activists and jurists reconfigure their thinking to meet this new moment, they might find a path forward in a surprising place — the work of Justice Thurgood Marshall.
Marshall, who served on the court from 1967 to 1991, is almost exclusively remembered for his pathbreaking work as a civil rights lawyer — especially arguing before the Supreme Court in Brown v. Board of Education. But after becoming a Supreme Court justice, Marshall focused on securing equality under the law in numerous areas. In fact, he wrote a crucial opinion in a case on gender equality that offers an alternative rationale for abortion rights at a time when the feminist legal movement needs all the help it can get to restore this fundamental right.
Marshall played an integral role in the right to abortion from the earliest stages. His biographer, Juan Williams, notes that he and Justice William Brennan were instrumental in convincing Justice Harry Blackmun, who wrote the majority decision in Roe v Wade, to extend the ruling’s protection to include the second trimester of pregnancy, a move that especially benefited poor women whose access to health care was often delayed. A few years later, Marshall was on the losing side of Maher v. Roe, a case about the constitutionality of using Medicaid to fund abortions. In his scathing dissent, he attacked the “ethical bankruptcy” of the decision, emphasizing that, “The enactments challenged here brutally coerce poor women to bear children whom society will scorn every day of their lives.”
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Less of This… Get ready for a wave of mass incarcerations
Picture a court of law, jury in place, set to determine the fate of a woman who has had a miscarriage. And she's been charged with murder.
This hypothetical is part of how the National Association of Criminal Defense Lawyers (NACDL) is training its members to prepare for a possible wave of criminal charges as the Supreme Court overturns Roe v. Wade.
Only it's not a hypothetical — this happened in 2019. After a California woman delivered a stillborn baby at 8 months, she tested positive for meth at the hospital and the staff called the police. The Kings County prosecutor charged her with the "murder of a human fetus" and she spent 16 months in jail before the charges were dismissed.
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Say it Louder SCOTUS has become an illegitimate institution
As of 24 June 2022, the US supreme court should officially be understood as an illegitimate institution – a tool of minority rule over the majority, and as part of a far-right ideological and authoritarian takeover that must be snuffed out if we want American democracy to survive.
On Friday, in Dobbs v Jackson Women’s Health, the supreme court overruled its nearly 50-year precedent of Roe v Wade, the 1973 case that legalized abortion nationwide. It is difficult to overstate just how devastating this is for pregnant people, for women as a class and for anyone with even a passing interest in individual freedom and equality.
But it’s also devastating for those of us who care quite a bit about American democratic traditions and the strength of our institutions. Because, with this ruling, the supreme court has just signaled its illegitimacy – and it throws much of the American project into question. Which means that Democrats and others who want to see America endure as a representative democracy need to act.
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Speaking Of… Clarence Thomas said the quiet part out loud
On Friday morning, the Supreme Court issued its opinion overturning Roe v. Wade and Planned Parenthood v. Casey—the two decades-old Supreme Court cases that together guaranteed abortion rights in America. The opinion, authored by Justice Samuel Alito, undoes the constitutional right to abortion and returns the right to regulate the procedure to individual states. The decision will likely lead to the criminalization of abortion, at all stages of pregnancy, in about half of the United States.
When news of this was revealed in a leaked opinion in May, advocates made clear that if Roe were to be overturned, it could lead to the decimation of other Supreme Court cases that depend on the same legal principle: these include Griswold, which guaranteed marital couples the right to use contraception; Lawrence, which undid sodomy prohibitions in the US: and Obergefell, which legalized same-sex marriage nationwide.
In their dissent, the three liberal justices make this same point. But in his opinion, Alito pinkie swears that this is not what is afoot here: “The dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell. But we have stated unequivocally that ‘[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.’ ”
On Friday morning, Alito’s conservative colleague on the court, Justice Clarence Thomas, disagreed with that. In his own individual opinion, Thomas wrote that, in fact, overturning Roe should only be the first step. “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” he writes. “Because any substantive due process decision is ‘demonstrably erroneous.’”
Read the Story on Mother Jones