Zero. Zilch. None:
SCOTUS Scoring Card for Women’s Bodily Freedom Rights

Zero. Zilch. None:
SCOTUS Scoring Card for Women’s Bodily Freedom Rights

A Commentary on Justice Alito’s Draft Overturning Roe V Wade

By Thomas Coffin

In his draft opinion on Dobbs v. Jackson Women’s Health Organization, which is joined by four other conservative members of the Supreme Court, Justice Alito begins by observing that abortion presents a profound moral issue on which Americans hold sharply conflicting views. As he presents it, “some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as fervently that any regulation of abortion invades a woman’s right to control her own body.”

The profound “moral issue”, we learn later in the opinion, is to be resolved however the 50 States decide through their legislatures, as such a right to abortion is not to be found in the Constitution, our history, nor tradition in any search he or the concurring justices have consulted. Thus the current Court overrules the former Court and consigns Roe v Wade to the graveyard of bad law that never should have seen the light of day.

A question immediately comes to mind—what is the source that is to guide the States and the American people? The opinion never lays down that card, but the answer is clear to anyone paying attention to current events and related rhetoric on government and the controversy over the list of basic human rights—the guiding source will be Christian patriarchal nationalism, which is at the root of multiple laws seeking to limit or deny rights which offend a variety of religious doctrines.

As an example, a doctrine of Catholicism, one of the major Christian religions, is that life begins at conception, a tenet that is not universally accepted by all Americans. Furthermore, a complementary Catholic doctrine mandates that all States must enforce Church doctrine on life beginning at conception by enacting appropriate penal sanctions to enforce it.

Other major Christian religions may or may not hold the same exact views, but the five Justices signing onto the Alito draft are all affiliated with the Catholic religion. It is reasonable to be troubled by the connection and to wonder whether a mandatory religious doctrine of imposing penal sanctions had an effect on their decision. In a prior essay—The Temptation of Theocracy— I raised the issue of the First Amendment and Jefferson’s wall between Church and State in the anti-establishment clause, and it is difficult to posit a more obvious breach of that wall than a doctrine promulgated by a Church which mandates its enforcement by the State.

Putting that concern aside, as I noted previously, the majority of the Justices find no basis in the Constitution nor our Nation’s history and tradition of a woman’s right to control her own body. Alito parenthetically notes that it wasn’t until the 20th Century that such a right was even articulated.

But their research is blinded to reality and faithful instead to misogyny. Women were not even allowed to vote in the United States until the year 1920. It took an amendment to the Constitution for women to achieve the recognition of even a voice in government. If it took 131 years for the white male population to confer that measure of equality to women in the fundamental right to vote in elections, is it any wonder that prior history and tradition is barren of any recognition of other rights they were entitled to as well? And, really, did it take the 19th Amendment for the boys to grudgingly concede the point to the girls? That it did is not proof of the lack of the right, but rather of the prejudice and discrimination endemic to the supposed sacrosanct tradition and history that is the beginning and end of Alito’s analysis.

It is quite telling that one source of common law not recognizing any right of women to a liberty interest in her body is Sir Matthew Hale, a 17^th century English jurist. Our research (I say “our” because I have enlisted my daughters’ help in plumbing history, always a good idea when talking women’s rights) discloses that Hale was a misogynist who considered women to be the property of their fathers and husbands and who presided over several “witch” trials where the punishment was execution for the accused. Far from making the case for Alito, Hale epitomizes the absurdity and shallowness of his reasoning. It is hardly shocking or conclusive proof of the absence of women’s rights to peek at white patriarchal history and tradition and find that none were recognized.

Such logic reminds one of the reasoning of Chief Justice Roger Taney, who wrote the opinion in the infamous Dred Scott case, in which he pontificated that (African- Americans) “had no rights which the white man was bound to respect.”

Dred Scott was decided in 1857. That case is part of the landscape of the history and tradition the majority is looking to for guidance today as it prepares to jettison Roe v Wade.

Alito et al reject the idea that there is any ”liberty interest” in the 14th Amendment which confers a right or freedom for a woman to control her own body. I wish to frame that issue with a realistic hypothetical: If a woman is impregnated by a rapist, does she have no liberty interest in protecting her bodily and mental health from the effects of a violently forced pregnancy and nine months of carrying to full term the involuntary consequence of that crime? The Court’s answer in Dobbs is a resounding to “No”. Alito puts it more emphatically—“Zero. Zilch. None.”

I want to contrast that outcome with a prior Alito decision in the 2014 case of Hobby Lobby, wherein the Court found that a “corporation” owned by a family was entitled under the Religious Freedom Restoration Act to assert a right of religious freedom to be exempted from paying for health care coverage which included coverage for contraception under the Affordable Care Act (aka, Obamacare).

I have dealt with many corporations over my career. I have yet to meet one with a soul or conscience. Corporations are fictitious “persons” under the law, enabling them to engage in business transactions and limiting any personal liability of its shareholders. Never have I seen a corporation in the pew.

Are not women more entitled to “freedom” in their bodies than a corporation has in paying for insurance for its employees to obtain coverage for (horrors!) contraception?

I conclude with this observation: Alito et al promise in their draft opinion that their ruling does not mean that other rights, such as contraception, same sex marriages, etc., which have been recognized in prior court decisions, are at risk. That rings completely hollow and is contradicted by the reasoning of Dobbs in the draft opinion. Everything Alito says in Dobbs about a right not being found expressly in the Constitution, tradition, or history is applicable to these other precedents which we are told not to fret about. But this train of overruling precedents has no brakes that I can see, nor do the religious zealots driving the train. Already they are strategizing the cancellation of a lengthy list of civil rights from a Court that is signaling its door is wide open for their stamp of approval. Do not be surprised if even Brown v Board of Education is on the agenda. Why not? After all, States can resolve that profound moral issue with the same ideological viewpoints brought to all the rest. Dust off the cobwebs and resurrect the ghost of Chief Justice Taney.

Author’s Disclosure: As a member of the Catholic Church, I do not dispute its doctrine on when life begins nor the right of any religion to promulgate a doctrine as to when life begins, but rather any religion's attempt to mandate such a doctrine on the State and people through the enactment of penal sanctions, i.e., imprisoning those who act in a manner contrary to its doctrine.

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Thomas Coffin was the keynote speaker at the Blackberry Pie Society’s Political Party in February, 2020.

He is a retired federal magistrate judge for the U.S. District Court for the District of Oregon and a former professor at the UO Law School.
Thomas retired in 2016 after 24 years on the bench, prior to which he had a career as a federal prosecutor spanning 21 years. He is married with 7 children.
The Blackberry Pie Society is pleased to include a collection of his essays on our website. We will post them as they become available.

Posted 5.12.2022