Back To A Shameful Past – Above the LawAbove the Law – Above the Law
We knew it was coming, at least those of us who didn’t hide under the covers and stick our fingers in our ears, saying “neener, neener.” The Supreme Court has now said “neener, neener” to all the women in this country who have believed in the right to choose whether to terminate a pregnancy. No more at least in those states that have restricted abortion and now are free to eliminate any right or need for a termination based on any reason whatsoever. Two generations of women who have grown up under the protection of Roe have that protection no longer.
Collateral consequences abound. What if continuing a pregnancy to term would endanger the life of the mother? What if complications during pregnancy result in a child so severely disabled that it won’t survive outside the womb for very long? (I know two couples placed in that heartbreaking situation.) What if a woman wants to terminate a pregnancy and travels to another state? Could she be prosecuted in her state of residence when she returns? Would that be a violation of the constitutional right to travel? What about pills to terminate pregnancy? These issues are not going away during my lifetime. Courts in at least two states have issued temporary stays against Dobbs enforcement.
I’m reminded of the Mad Magazine feature (and if you are too young to remember, you have missed out) called Spy vs. Spy. The meaning of the title is obvious. Will people in abortion-free states now be able to rat on their neighbors, doctors, and friends and collect a bounty for ratting on those who have abortions? Given the mentality of some of the states, I would not be surprised.
This decision may well revive calls for expanding the number of justices; it might also revive the call for term limits but calls and protests aren’t going to do diddly-squat. What’s going to be important going forward is getting out the vote for your chosen candidates, not sitting on the sidelines while people who may have the ability to make some changes get elected. Complacency sucks, and we are now seeing its results.
It’s not just back to the alley for women seeking to terminate pregnancies. I fear for other decisions that the Supreme Court will may well overturn in the future on the theory that the “fathers” and “one mother” on the court know what is best for the country, overturning gay marriage, sexual activity between consenting adults of the same sex, denial of benefits to gay couples, and the loss of other rights. These justices would like to snap their fingers and travel back in time to what society was like in a world that they so obviously favor. I am discouraged and disheartened, but glad that I have over the past 50 years enjoyed the benefits of a Supreme Court that looked at an evolving society without relying just on the text. I won’t see those days again in my lifetime. And hey, members of the LBGTQ+ community, you may well be next in this Court’s cross-hairs.
Those who were on the fence about confirmation of the Trump appointees were played, pure and simple. Maine’s Sen. Susan Collins is one unhappy camper — chagrined hardly describes it — betrayed might be a better adjective, but naïve is the best word to use. Remember the great scene in the movie “Casablanca” when the police officer played by Claude Rains is “shocked” that there is gambling at Rick’s Café? I wonder how many Americans now feel similarly, especially since the majority of Americans favor reproductive freedom.
There is no morning-after pill for the Dobbs decision. It’s back to barefoot and pregnant and women losing opportunities in the workplace due to pregnancy. And, of course, the Dobbs decision will fall most heavily on those who can least afford to travel, to carry the fetus to term, and to raise that child. Raising children takes time and money, and studies have shown that when women take time off to raise kids, many have difficulty in resuming careers on an equal footing as … wait for it … men.
Have you ever been in juvenile dependency court? If not, you are lucky. It’s the saddest place in the justice system, all the undesired children, moving from one foster care environment to another, often abused by the foster parents, some of whom are only in it for the money. These kids are rarely wanted, and it shows on their faces and in their behavior. How would you like to carry all your possessions from place to place in a trash bag, never knowing if the home you are going to is better (or worse) than the place you just left? I thought so.
I wonder what Justice Harry Blackmun would think about Dobbs; he wrote the majority opinion in Roe v. Wade. Linda Greenhouse authored an excellent book, “Becoming Justice Blackmun,” in which she details Blackmun’s thought process in writing the opinion. His thoughts about Roe had a personal angle.
Pre-Roe, one of his daughters, Sally, had become pregnant. She married her boyfriend and then had a miscarriage. She did “what so many young women of my era did. I quit college and married my 20-year-old college boyfriend. It was a decision that I might have made differently, had Roe v. Wade been around,” she said. It was, she added, one of the most difficult periods of her life. Her marriage did not last.
Precedent, schmecedent. It has no meaning anymore, so the next time you are told that an appellate case has precedential value, simply shrug, and say, “Eh, not so much anymore.” Will anyone dare to disagree? How can they?
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.