David Cole, national legal director of the American Civil Liberties Union and a professor at Georgetown University Law Center, wrote in the Washington Post.
In his leaked draft opinion for the Supreme Court
overturning Roe v. Wade, Justice Samuel A. Alito Jr. points to Brown
v. Board of Education, one of the
Court’s most celebrated decisions, as support for his reasoning. Brown, after
all, overturned Plessy v. Ferguson’s “separate but equal” doctrine,
and marked the beginning of the end of the Jim Crow era.
But the difference between Brown and what
the court appears poised to do in Dobbs v. Jackson Women’s Health
Organization could not be more basic. In Brown, the court extended fundamental
rights, as it has done in virtually all its decisions overturning
constitutional precedents. A decision overturning Roe, by
contrast, would eliminate the constitutional right to abortion
altogether. The proper analogy is not Brown overruling Plessy,
but a decision reviving Plessy, reversing Brown, and
relegating Black people to enforced segregation after nearly 70 years of equal
protection.
The doctrine of stare decisis acknowledges
the importance of respecting settled expectations — and especially of not
taking away rights that people have come to rely on. It holds that, absent
extraordinary circumstances, the court must abide by its prior decisions, even
and especially when the court’s roster changes. It’s what ensures that
constitutional law is a rule of law, not a rule of nine individual jurists.
Of course, rights change over time, and
modifications are inevitable as the court applies settled rules to new
circumstances. Rights often expand or contract at the edges of constitutional
law.
But outright reversals of precedent are few and far
between, and reversals that deprive people entirely of constitutional rights
are rarer still. Alito cites about 30 decisions in which the court overturned
prior precedents, but fails to note that virtually every one involved expanding
rights.
Just imagine, for example, if the court were to
overrule Loving
v. Virginia and announce that interracial couples no longer have a
right to marry, or reverse Gideon v. Wainwright and deprive indigent criminal
defendants of a lawyer. Yet, as Solicitor General Elizabeth B. Prelogar told
the Supreme Court when it heard oral arguments in Dobbs, reversing Roe
“would be telling the women of America that … the ability to control their
bodies and perhaps the most important decision they can make about whether to
bring a child into this world is not part of their protected liberty.”
Americans today enjoy rights to speech, to vote, to
choose who they live with and marry, to exercise religion, to hold property, to
privacy, and to equal protection that are far more generous than those recognized
at the framing of the Constitution. While the court has whittled away at some
of these rights, none of those prior decisions comes close to the tectonic
shift that reversing Roe v. Wade would cause.
Alito cites West Coast Hotel v. Parrish, a
1937 decision that reversed course on a line of decisions
ruling that business owners’ “liberty of contract” invalidated federal and
state laws protecting workers and consumers. Parrish took away some
rights of business owners, but its real effect was to expand rights protections
for millions of Americans subject to exploitation by powerful corporations.
Overturning Roe would strip from every
American woman one of the most important rights she enjoys — controlling how
and when she has a child. It is a right that 1 in 4 American women has
exercised by obtaining an abortion, and that virtually all women have relied
on to plan their lives, families and careers. It would also depart
radically from U.S. public opinion; poll after poll shows
that Americans overwhelmingly oppose overruling Roe.
If the court follows through on its apparent intent,
pending antiabortion laws in many states will take immediate effect and the
consequences will be dire. People throughout the country will be hurt, none
more so than those who already face challenges in accessing abortion because of
low income, geographical isolation or difficult family situations. To compare
that result with Brown v. Board of Education is an insult to
Americans’ intelligence.
What is to be done? History teaches that the
American people, not nine justices, ultimately determine our collective
constitutional fate. If all those who care about this fundamental right stand
up, organize, and vote, we can and will win back the right that the court
stands poised to revoke. Civil rights activists did not take Plessy sitting down;
nor should anyone treat Dobbs as the last word.
If the court overturns Roe, it should
expect that the fallout, like the decision, will be unprecedented.
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