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Dobbs: Its bad, but not all bad

By Hubert Plummer posted 08-07-2022 02:11 PM

  

This blog offers a space for Committee members to express their feelings or comment on areas of the law they find important.  Our nation is particularly divided now, and what I see as the erosion of individual civil rights is very important to me.  So, all my posts, this one included, are my opinion only and not that of the Committee or its other members. 

In June, the Supreme Court issued its decision in Dobbs v. Jackson,[i] where they overturned Roe v. Wade.[ii]  Roe, of course, is the case from 1973 that held that the Constitution guarantees a woman’s right to an abortion.  I wrote about it briefly in a prior blog post.[iii]  I won’t go into too much detail, but the justification for the Roe decision was based on something the Court called a penumbra of privacy rights.  While the Constitution does not say anything about a right to privacy, the Court traced a history of cases going back to 1891 providing privacy rights, as well as the language of the Bill of Rights and the 14th Amendment.  The Court held that all these factors together created a penumbra[iv] of rights that embodies liberty and personal privacy. 

The penumbra concept was formulated in the Griswold v Connecticut[v] case in 1965. 

…specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. ….  Various guarantees create zones of privacy.

The Dobbs case overturned Roe.  One of the Court’s rationales was that there was no historical right to an abortion in 1973.    Justice Alito felt therefore that such a right should not be protected by the Constitution.  That right had been the law of the land for 50 years, but it was fine to rip it out of women’s hands now.  There may not have been such a right in 1973, but there has certainly been one for fifty years now.

In his concurring opinion, Justice Thomas referred to the “facial absurdity of Griswold’s penumbral argument”.  Many conservatives and “originalists” object to the expansion of human rights that are not explicitly enumerated in the Constitution.  They feel that the Founding Fathers and drafters of the Constitution were absolutists and if they wanted a right in there, they would have put it in there.  Since this decision, Thomas has stated, that he thinks many of these prior decisions should be revisited. He has specifically identified Griswold, which protects rights to contraception, Lawrence[vi] which protects homosexual relations and Obergefell[vii] which protects same sex marriage.

The Court has recently been considering the balance between people’s individual rights and religious rights.  When one person’s individual rights bump up against another person’s freedom of religion, who wins?  Let’s remind ourselves of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[viii]

That’s it.  That is the entire First Amendment to the US Constitution.

  1. Congress cannot regulate the establishment of a religion. There can be no state religion.
  2. Congress cannot prohibit the free exercise of religion.
  3. Congress cannot abridge freedom of speech.
  4. Congress cannot abridge freedom of the Press.
  5. Congress cannot prevent people from peacefully assembling.
  6. Congress cannot restrict the right of people to petition the Government for redress of grievances.

That one sentence holds a lot of power.  It is the reason that we can speak freely, protest our government, and go to the church we choose, or not at all.  But looking at that sentence, is one right more important than another?

Courts have long held that public schools are run by the government and therefore cannot support a religion.  That is why prayer in school is prohibited.  You might think, wait a minute, that infringes on my freedom of speech and my right to practice my religion.  Well, it doesn’t.  You are free to pray while in school, privately.  But, the school cannot sponsor a prayer, because that would show the government supporting one religion over another. But what about an ecumenical prayer, that encompasses everyone?  Nope, freedom of religion also means freedom from religion.

The government cannot get involved in deciding what is and what isn’t a religion, and this presents problems. The IRS has regulations about what they consider a religion.[ix]  Since religious organizations enjoy tax free status, they need a test, but the government can’t decide what constitutes a valid religion.  That is why we have so many organizations calling themselves religions.  I won’t name names, but there are some shady groups out there posing as religions to gain tax free status.  TV host John Oliver demonstrated the hypocrisy of the system by creating his own church and getting tax free status on his show.[x]

I digress, what happens when rights collide?  We get the famous Masterpiece Cake Shop case[xi] where a Colorado baker refused to design a cake for a gay wedding.  The Supreme Court ruled, in a 7-2 decision, on a very narrow issue, that the Colorado Civil Rights Commission did not apply neutral and fair analysis in their decision against the bakery.  They didn’t actually decide whose rights were superior.

Also recently, in Kennedy v. Bremerton School District[xii], a high school football coach was fired because he prayed on the field after games.  It has long been held that a school official cannot lead a prayer in school.  But what about a school official making public expression of his religion during a school event? In a 5-3 decision, the Court held that coach Kennedy’s payer was fine, and the school district violated his rights to free expression of his religion. As Justice Sotomayor said in her dissent, the majority is,

...paying almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion.

I believe that the Court’s decision is very misguided and plain wrong.  A high school football coach has a lot of power in a town.  The kids on the team want to make or stay on the team, they will certainly be influenced by the actions of the coach, and may feel that they must express the same religious zeal as the coach.

Along with the Dobbs decision, it signals the direction the Court is taking towards the conservative, Christian right.  This most definitely hurts some very vulnerable groups.

Leading up to the 2020 election I wrote a lot about election law, and attempts by the right to suppress minority voting and prevent Democrats from voting.  Those efforts are still going strong and the upcoming election is again, vitally important.

But, the thing that motivated me to pull out the old quill and inkwell is the despair felt by so many at the hateful rhetoric going around the country.  I want to highlight a few bright spots out there that maybe we can hold on to and have hope for the future.

A big one just happened in Kansas. In 2019, the Kansas Supreme Court, in a 6-1 decision held that the Kansas Constitution protected abortion rights.[xiii] Republicans immediately went to work seeking a way to overturn this.  They came up with a proposed amendment to the Kansas Constitution that would state that nothing in the state constitution creates a right to abortion or requires government funding for abortion and state that the legislature has the authority to pass laws regarding abortion. [xiv]  The put this on the ballot of an election that traditionally has low turnout and hoped to sneak it past the electorate.

Many States constitutions contain a right to privacy, that thing that isn’t explicitly mentioned in the US Constitution.  That right of privacy is generally considered to protect a woman’s right to decide for herself.

Kansas is a majority Republican state[xv].  The only Democrat they supported for President in recent memory was Lyndon B Johnson.  Yet, last week Kansans came out in droves and voted overwhelmingly to reject the amendment and keep abortion rights legal in Kansas.[xvi]

It is important to remember, despite the gains made by Republicans recently, that a large majority of Americans support abortion rights.[xvii]  These changes are not representative of the feelings of the country.

In another positive story, just a few weeks ago, a Federal Judge in Indiana ruled that a 10 year old transgender girl can rejoin her school softball team.[xviii]  Indiana had passed a law prohibiting transgender students from participating in public school sports.

I wrote about transgender discrimination at length and sometimes it seems overwhelming, but there are strong advocates out there working to stem the tide of ignorance. We should remember that 32 states, plus DC and 5 territories do not restrict transgender students from playing sports.[xix]  18 states banning it are too many, but the bigots are facing increasing resistance.

Abortion has been legal in Wyoming since 1977 but this year the legislature passed a law banning it.  It was due to go into effect last week, and a Judge issued a temporary restraining order to determine the legality of the new law.[xx]

Some of the country’s biggest businesses, including JPMorgan Chase, AT&T and the Walt Disney Company, have already announced they would take steps to help employees who need abortion access but cannot obtain it in their home states. There have not yet been major announcements about companies canceling expansions or relocating offices out of jurisdictions where abortion is now banned.[xxi]

Apple is also joining the fight to protect LGBTQ rights.  They are lobbying and joining lawsuits all in opposition to the anti-LGBTQ laws being proposed.[xxii]

Another show of support came from medical students at The University of Michigan Medical School.  During the incoming first year medical students’ White Coat Ceremony, where medical students are ceremonially dressed with their first white lab coat, dozens of students walked out on keynote speaker Dr. Kristin Collier.  Dr. Collier is an assistant professor of internal medicine at the university.  She had previously publicly expressed anti-abortion sentiments, and the incoming students petitioned the school to replace her as the speaker.[xxiii]

So, for those of us feeling overwhelmed with what seems to be going on, remember that the majority of Americans supports these civil rights.  Democracy works, but only if everyone participates.  That means voting, speaking out, and helping others who may have difficulty voting get to the polls, too.

 

[i] https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

[ii] https://en.wikisource.org/wiki/Roe_v._Wade/Opinion_of_the_Court

[iii] https://communities.nysba.org/blogs/hubert-g-plummer-esq/2020/10/27/attacks-on-the-constitution-and-civil-rights

[iv] https://www.merriam-webster.com/dictionary/penumbra

[v] https://supreme.justia.com/cases/federal/us/381/479/

[vi] https://www.oyez.org/cases/2002/02-102

[vii] https://www.oyez.org/cases/2014/14-556

[viii] https://constitution.congress.gov/constitution/amendment-1/

[ix] https://www.irs.gov/charities-non-profits/churches-religious-organizations

[x] https://en.wikipedia.org/wiki/Our_Lady_of_Perpetual_Exemption

[xi] https://en.wikipedia.org/wiki/Masterpiece_Cakeshop_v._Colorado_Civil_Rights_Commission

[xii] https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf

[xiii] https://www.kscourts.org/Cases-Opinions/Opinions/Published/Hodes-Nauser,-MDs-v-Schmidt-(Supreme-Cour

[xiv] https://ballotpedia.org/Kansas_No_State_Constitutional_Right_to_Abortion_and_Legislative_Power_to_Regulate_Abortion_Amendment_(August_2022)

[xv] Kansas is an interesting case study on Conservative political strategy.  The book What’s The Matter With Kansas by Thomas Frank has an interesting analysis of how and why Kansas went from blue to red.

[xvi] https://www.nytimes.com/interactive/2022/08/02/us/elections/results-kansas-abortion-amendment.html

[xvii] https://www.pewresearch.org/politics/2022/07/06/majority-of-public-disapproves-of-supreme-courts-decision-to-overturn-roe-v-wade/

[xviii] https://www.indystar.com/story/news/education/2022/07/26/indiana-transgender-sports-ban-judge-says-girl-can-rejoin-softball/65383081007/

[xix] https://www.lgbtmap.org/equality-maps/sports_participation_bans

[xx] https://www.wyomingnewsnow.tv/2022/07/27/teton-county-district-judge-grants-temporary-restraining-order-wyoming-abortion-ban/

[xxi] https://www.nytimes.com/2022/07/11/us/politics/abortion-ban-states-businesses.html ; https://www.hrc.org/press-releases/200-major-u-s-companies-oppose-anti-lgbtq-state-legislation

[xxii] https://www.politico.com/news/2022/04/01/apple-lobbying-anti-lgbtq-laws-00022127

[xxiii] https://www.cnn.com/2022/07/26/us/medical-student-abortion-protest-university-of-michigan/index.html

The author[s] is solely responsible for this blog submission.  It does not represent the position of the New York State Bar Association or its Committee.

* 8/8/22 Edited for typos.

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10-28-2022 02:12 PM

I view Dobbs as much worse than "bad."  Our nation was created to ensure liberty, a term that means nothing if not autonomy over one's own body. The SCOTUS majority allows the minority to defeat the liberty rights of the majority.  In this, it disregards not only precedent but also principle, and the core national value of individual liberty. 

That said, the NYSBA Civil Rights Committee welcome new members, and also welcomes discussion and debate considering opposing points of view.  In my opinion, even on "culture wars" issues, most Americans can find common ground, and would prefer our elected leaders to compromise when possible for the sake of the "general welfare."  For example, Hubert references transgender rights and athletics. This is a topic that requires civil debate, and science-based evidence, to best determine what is best for everyone potentially affected. 

Fact-based civil discussion may lead to consensus and compromise on America's culture wars issues, whereas political or ideological hyper-partisanship most certainly will not.

Again, the Civil Rights Committee invites your input and participation. We plan to put on informational programs (and perhaps CLEs) of interest to the NYSBA membership.  Feel free to contact me directly.

08-08-2022 03:14 PM

Thanks Hubert. Your essay was reasonably optimistic.  The US Supreme Court may not always be the last word on everything. 

Ellen