Thread by @CWSmith_Law

After reading the Dobbs opinion, here are some thoughts on what the future might hold:

First, much has been made, rightly, of the Thomas concurrence, which basically invites test case challenges to the rights of contraception, same-sex marriage, and bedroom privacy.

As the dissent observes, there is no principled reason those issues would end up any differently based on the majority's analysis. If the men of 1868 didn't believe in abortion rights, they also didn't believe in contraceptive rights or LGBT rights of any kind.

Thomas's concurrence is a clarion call to the conservative Christian Legal movement, Federalist Society, Blackstone, etc, to tee these cases up and get them to his desk ASAP. They hear him, and they will.

Second, to my mind the essence of the dissent is its frontal attack on originalism as both extremist, radical, and, most pointedly, sexist.

In a way, I believe Sotomayor may be setting the groundwork for challenges to abortion bans based not on substantive due process, but on the equal protection clause.

How is a law that forces a woman--but not a man--to carry the full burdens of pregnancy anything but discrimination on the basis of sex? How is defining women's rights based on the views of the men of 1868, who did not believe women should vote, anything but a sexist inquiry?

Simply put, any law governing pregnancy is a law based on sex because only women can get pregnant. Such laws should invite traditional balancing tests weighing a woman's individual liberty interest against the State's interest in protecting fetal life.

As Sotomayor observes, the majority basically views a woman's liberty interest at zero--completely nullified. Would the analysis be different in challenges alleging sex discrimination?

Third, and somewhat surprisingly, Kavanaugh's dissent makes an extremely important observation. Abortion bans that contain no exception for the life of the mother may be unconstitutional. This is huge.

Kavanaugh relies on Rehnquist's dissent from Roe for this point. Kavanaugh also openly says that bans on interstate travel will also violate the constitution.

But, Fourth, let's not forget that nothing in the majority opinion prevents the United States Congress from enacting an abortion ban (presumably with a life of the mother exception).

So the fight at the federal level is officially on, and abortion will become a galvanizing political issue in national politics for years to come. The majority / Kavanaugh are delusional for thinking they are somehow *fixing* that problem.

Which brings us, Fifth, to the Roberts concurrence. Roberts call this decision "a serious jolt to the legal system." He would have upheld the core right to an abortion but would have destroyed the viability line and upheld the Mississippi law.

Stare decisis, in his view, required upholding Roe's core holding. Here, Roberts makes swift work of the majority's radical approach to overruling precedent. Roberts dismisses any comparison to Plessy / Brown, noting the opinion in Brown was both unanimous and 11 pages long:

The Dobbs opinion marks the loss of Robert's power on the Court as a force of moderation. The Court is beyond his control, and the extremists hold the sway of the majority.

This presents a massive structural failure in American democracy, the total erosion of public support in the institution of the judiciary, and the imposition of tyrannical, and theocratic, minority rule.

I suspect that voices like mine, advocating for substantial court reform, will grow louder. Court expansion and congressional limitations on federal court jurisdiction are two areas specifically we may be hearing more about at the national level.

In the very short term, proposals like FDA medication abortions by mail, which presumably states cannot stop, and the leasing of federal lands to abortion clinics may be measures the Biden administration can pursue.

Advocacy groups will also implement a modern day underground railroad, helping women travel to "free states" so to speak to obtain abortions there.

The problem with these short term workarounds, though, is that they can be revoked at a moment's notice, and will be, if the Republicans wrest back control of the national government.

My proposal:

1. Codify Roe at federal level
2. Include jurisdiction stripping provision limiting district court challenge of the law.
3. Expand Supreme Court.

#SupremeCourt #Dobbs #RoevWade #CodifyRoe #ExpandSCOTUS #SCOTUS