The Mississippi abortion case threatens birth control and sexual rights. - 0 views
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The constitutional right to abortion is under concerted attack by a deeply conservative Supreme Court. Last month, the Supreme Court permitted Texas’ ban on abortion at six weeks to go into effect in a one-paragraph ruling decided without full briefing and oral argument,
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On Dec. 1, the court will consider the constitutionality of Mississippi’s ban on abortion after 15 weeks of pregnancy in Dobbs v. Jackson Women’s Health Organization. In Dobbs, Mississippi is urging the Supreme Court to overrule Roe v. Wade and take away from millions of Americans the fundamental right to control their bodies, choose whether and when to start a family, determine their life course, and participate as equals in American life.
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destabilize a central part of the court’s jurisprudence protecting fundamental constitutional rights. As a result, Dobbs also threatens the fundamental rights to use birth control, marry a loved one, and make decisions about sexual intimacy.
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the right to abortion cannot be a constitutional right because states restricted abortion in 1868 at the time of the ratification of the 14th Amendment. Mississippi argues that the public in 1868 would have understood the 14th Amendment to permit state restrictions on abortion to continue.
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This is not a new argument—it formed the basis of then-Justice William Rehnquist’s dissent in Roe and was made repeatedly by Justice Antonin Scalia over the course of his career on the bench, including in his dissent in Casey
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Chief Justice John Roberts recognized in his confirmation testimony, it is “completely circular,” using state practice to interpret the constraints the 14th Amendment was written to impose on the states.
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the text and history of the 14th Amendment provide no support for the idea that the courts should look to state practice in 1868 to define the scope of the amendment’s protections.
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For good reason, state practice in 1868 has never been a measure of what fundamental, personal rights are guaranteed against state infringement by the 14th Amendment. This is illustrated not only by Roe and Casey—which explicitly rejected the idea that the state practice in 1868 fixes the fundamental rights for all future generations—but also by many other landmark Supreme Court rulings vindicating the 14th Amendment’s promise of liberty for all.
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In 1965, in Griswold v. Connecticut, the Supreme Court struck down a restriction on the use of birth control dating back to 1879, holding that it infringed on the right of a married couple to choose whether to start a family and bear children.
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In 2003, in Lawrence v. Texas, the Supreme Court held that the 14th Amendment protected a right to sexual intimacy by LGBTQ adults, despite a very long history of laws that prohibited same-sex intimacy and sexual conduct. In Obergefell v. Hodges in 2015, the Supreme Court held that the 14th Amendment guaranteed the right to marry a loved one of the same sex, even though marriage had historically been limited to a union of a man and a woman. Both decisions drew on Loving to safeguard bedrock rights to love, marry, and form a family, ensuring equal dignity to LGBTQ persons.
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If the fundamental rights protected by the 14th Amendment are determined by looking to state practice in 1868—as Mississippi and its allies urge—Loving’s holding protecting the right to marry as a fundamental right would be in doubt, as would many other landmark precedents, including Lawrence and Obergefell.
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It explicitly rejects Loving’s reasoning, arguing that the Supreme Court was wrong to recognize a fundamental right to marry in that case. It claims that Lawrence and Obergefell are “lawless” rulings and urges the Supreme Court in Dobbs to leave “those decisions hanging by a thread.”