The Supreme Court’s Draft Abortion Decision: It’s Even Worse Than You Think, But Voting is Our Check and Balance

This post is authored by Professor Kari Hong. Kari Hong has been a scholar, law professor, and practicing attorney for the past twenty years.  Her expertise is in equality and due process for immigrants, those convicted of crimes, and marginalized groups, including the LGBTQ+ community.  Her scholarship has been cited hundreds of times.  Her legal commentary has appeared in the Boston Globe, Washington Post, New York Times, and CNN.  Her federal court work has resulted in dozens of published cases in the Ninth Circuit.  This essay was given as a speech at the May 8, 2022 Bans Off Our Bodies rally in Missoula, MT.

On May 3, 2022, someone leaked a draft of the Supreme Court’s decision in Dobbs v. State of Mississippi, which overturns Roe v. Wade.[1]  I’m going to answer three questions: One, How could this happen?  Two, What is next?  And Three: What are we going to do about it?  I’ll give away the ending—a lot.  We are going to do a lot.

First Question: How Did This Happen?

Starting with the first question, how on earth could a Supreme Court in 2022 overturn Roe v. Wade, precedent that is often described as “super precedent.”[2] To answer that question, we need start with what life in America was like before Roe v. Wade existed.[3]

Life Before Roe v. Wade

Up until the 1960s, states had the right to ban and criminalize all sex that was outside of marriage and all sex that did not lead to procreation. 

  • If you were married and had an affair, that was the crime of adultery.[4]
  • If you just had sex without being married, that was the crime of fornication.[5]
  • If you lived with someone from a different race, that was assumed to involve sex, so that was the crime of cohabitation.[6]
  • If you married someone from a different race, that was the crime of miscegenation.  And a felony.  That was state law, until 1967, when the Supreme Court decided Loving v. Virginia.[7]
  • If you had sex with someone of the same gender, that was the crime of sodomy.  And a felony.  That was state law, until 2003, when the Supreme Court decided Lawrence v. Texas.[8]

Because this criminal scheme was not enough to deter a woman from having sex outside of marriage, some states did even more.  In some states, children born to an unmarried women had the word “bastard” on their birth certificate where the name of the father was supposed to be.[9] In many states, a “bastard” could not inherit property or money.[10]  A “bastard” could not bequeath money or property to their own child. [11] And a “bastard” was barred from running for public office and testifying in court.[12] States could deny burials to “bastards.”[13] If murdered, they were killers faced lighter sentences than if they had killed someone born in wedlock. These were state laws until 1968, when the Supreme Court decided Levy v. Louisiana.[14] 

And married women were not off the hook.  If a married couple asked for information about contraception, the doctor who answered their questions would be committing a felony.  That was the law until 1965, when the Supreme Court decided the Griswold v. Connecticut.[15]

And if a doctor who gave contraception to an unmarried person was guilty of a felony.  That was state law, until 1972, when the Supreme Court decided the Baird v. Eisenstadt case.[16]

Then in 1973, the Supreme Court decided Roe v. Wade, which struck down a state law that had punished a doctor who performed an abortion with a two to five year prison term.[17]

The Constitutional Foundation for Our Modern World

What was the reason?  The Supreme Court began to recognize that there was something more fundamental in how we lived.

The justices back then were not Originalists.  They were not Textualists.[18] 

The justices looked at the Fourteenth Amendment—one of three amendments that passed after a Civil War was needed to declare Black people, full persons.[19]

As law professor Peggy Cooper Davis noted, the Fourteenth Amendment was drafted to break from a history that had literally denied  personhood to too many.[20]

Under the Fourteenth Amendment, our very personhood was no longer limited by history and tradition.  It was not limited by words.  It was not limited by the Founders’ own blind-spots.

Rather, the Fourteenth amendment created equality and personal liberty. This often is called a right to privacy.  But it is so much more.

The Fourteenth Amendment created our family values[21]

There is no doubt that for the past 100 years, in the United States, there is a recognition that we all have a right to choose to our family.  This is not a narrow right to have an abortion.

The right to have children—or not.

This is the right to marry—or not.

This is right to our life. 

This is a right to shape our own destiny.

In the 1950s and 1960s, the Supreme Court, under Chief Justice Warren, was very active in recognizing foundational civil rights and these family formation rights.[22]

The critics accused them of judicial activism.  But the Supreme Court interpreted the constitution to reflect our values, not limit them.  And this wasn’t activism.  The majority of Americans prefer this modern world.[23]

The Successful Fifty-Year Campaign to Change The Supreme Court

But a minority of Americans did not like it, and to their credit, undertook a dedicated fifty-year campaign to change the institution that started it all—the Supreme Court. 

In the past eighty years, most of the justices appointed to the Supreme Court were appointed by Republican Presidents.  But the men—and they were all men—who were picked were thoughtful men whose views changed over time. 

Justice William Brennan—”the lion of liberalism”—started out a Republican, appointed by President Eisenhower.[24]  

Justice Harry Blackmun, who ended up championing gay rights and calling for the end of the death penalty, was appointed by President Nixon.[25] 

Justice Souter, who eloquently defended the separation of church and state and wrote the 1992 Planned Parenthood v. Casey decision[26] that affirmed Roe v. Wade, was appointed by George H.W. Bush.[27]

Some Republican politicians were mad about this.[28]  They felt entitled to have a justice be faithful to the small politics of the president instead of being a thinker, and evolving as the law and facts so demanded.  So, they made changes.

What type of lawyer then will be the best judge to follow party politics above a fidelity to the institution?  It could not be a lawyer who has worked with real people as clients, who knew the heartbreak of loss and understood how critical the Court’s legitimacy was forged in creating a fair fight.  The ideal lawyer who could serve a political agenda was one whose job was to do just that.  This is why, we got Clarence Thomas, whose prior legal work was for the Reagan administration and Republican senators.[29]  We got Samuel Alito, who worked for the Reagan administration.[30]  We got Neil Gorsuch, who had worked for the Bush administration.[31]  We got Brent Kavanaugh, who worked for the Bush administration[32]. We got Amy Coney Barrett, openly and publicly called for overturning Roe v. Wade[33] and whose legal writings as a law professor argued religious views (actually, her religious views) should triumph over legal ones.[34]

See a pattern?

John Roberts also had worked for the Reagan, Bush I, and Bush II administrations.[35]  And in 1992, he had joined Justice Antonin Scalia’s concurrence in Planned Parenthood v. Casey, arguing to overturn Roe.[36]  But as Chief Justice, he evolved.  He understands that the Court’s legitimacy is a precarious one.  It will be lost if it is just another arm of the Republican party.

That is why, at critical times, Chief Justice Roberts breaks from his personal views to follow a nobler value.[37]

But we have a problem.  The other former government attorneys did not leave their politics when they put on black robes.

And now, on abortion rights and on too many other issues, we know the votes before we even have a case.

And, this is not me being cynical.  In September 2021, Mike Pence went to Hungary.  He gave a speech praising Donald Trump for picking three justices who would overturn Roe v. Wade.[38] 

The Unusual Path in The Court Hand-Picking A Case to Create A Challenge to Roe v. Wade

The states controlled by Republican legislators knew this too.  Starting with the addition of Justice Kavanaugh Republican states passed laws—in clear violation of Roe v. Wade—to regulate abortion before the twenty-four week period that Roe said could not be policed.

In March 2018, Mississippi passed a law prohibiting all abortions after fifteen weeks.  In May 2019, the federal district court struck it down, citing to Roe v. Wade, and starting the decision with “Here we go again. Mississippi has passed another law banning abortions prior to viability.”[39]

In December 2019, on appeal, the Fifth Circuit also struck down this law, explaining “In an unbroken line dating back to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability.”[40]

In March 2020, as it has the right to do, Mississippi appealed this case to the Supreme Court, which is known as Dobbs v. Jackson Women’s Health Organization.[41]  In its June 2020 petition for writ of certiorari, it argued, “To be clear, the questions presented in this petition do not require the Court to overturn Roe and Casey.”[42]

But on September 18, 2020, Ruth Bader Ginsburg died.[43]  On October 26, 2020, Donald Trump appointed Amy Coney Barrett to the Supreme Court.[44]

On May 17, 2021, the Supreme Court accepted the case for consideration.[45]

It did not have to do this.  The Court only selects 75 to 85 of the 10,000 cases presented to it each year.[46]  There was no conflict, and no unsettled law in the case. 

But on July 22, 2021, recognizing the opening it had been given, Mississippi filed a new brief, saying that the only issue for the Court to address is whether “it will overrule” Roe and Casey.[47]

For those who are not lawyers.  That is highly unusual for parties to change positions like that in briefing while the case is winding its way through the courts. 

But nothing about this case is usual.

We have a situation where the Republican party hand-picked five justices to overturn Roe v. Wade.  These five justices then hand-picked a case to overturn Roe v. Wade.  And the state of Mississippi even changed its legal argument from the time when Justice Ginsburg was alive to when Justice Coney Barrett replaced her.

As Justice Sonia Sotomayor asked in oral argument, “will the Supreme Court survive the stench” if the reason to overturn Roe v. Wade—is not a change in society, but a change in who is on the Court.[48]

So, that’s how we got here. It was a well-planned campaign that started in the 1980s.  And we know what the most likely result will now be.

Second Question: What Happens Next?

In the draft opinion, Justice Alito “overrules” Roe v. Wade and Casey because he says, the word “abortion” is not in the constitution and there is no basis to protect, what he calls, this misguided right that defines a person’s “concept of existence” in this world.[49]

In doing this, we are no longer looking to how the Fourteenth Amendment changed our definition of equality and liberty so that we look to the future.  Instead, we have a Court looking to limit rights through history and tradition. 

Looking to the past, is going to repeat it.

What’s going to happen when this decision comes out? 

On abortion, twenty-six states will ban abortion immediately.[50] 

Montana cannot—but only because our state constitution is a living constitution that protects a right to privacy.[51] 

But—pay attention—Republican leaders in Montana are calling for a constitutional convention to take that out.[52]  The Republican party is two votes shy in the Montana legislature to make that happen.[53]

On the state level, states will return to criminalizing abortion.  And this time, they are not just going after doctors.  They are going after the women.

Louisiana[54] already has drafted bills that criminalizes abortions, including ectopic pregnancies, and punish them as the crime of murder.  This is more extreme than the pre-Roe v. Wade days.

When a woman miscarries, there will be a police investigation to determine if she committed murder.  Women will have to prove in court that their miscarriage was accidental and not intentional.

I’m not exaggerating.  In April 9, 2022, the police in Texas arrested a 26-year-old woman who sought medical care after a miscarriage and charged her with murder.[55]  The district attorney dismissed the charges in couple of days.  But not for long.

On the federal level, Senator Joni Ernst, a Republican from Iowa, is among a group of Senators ready to introduce a bill that would ban all abortions that occur after six weeks.[56]

Already, Senator Mitch McConnell has said that in 2025, if the Republicans win the house, win the Senate, and win the presidency, they will pass a federal law to outlaw all abortions by statute.[57]  And we know his principled claim for the Democrats not to end the Filibuster will magically be made into a new “Merrick Garland rule” when it serves his ends.[58]

But What Else Is Gone?  Contraception, Same-Sex Marriage, Interracial Marriage, Right to Educate Children Is Next 

Just as you cannot take out the third story of a building and leave the rest intact, if Roe v. Wade is overturned, there also is no federal right to protect all decisions about when and how to form a family.  Re-read that sentence.  It is important.  When Roe v. Wade is overturned, there will no longer be a federal constitutional right to protect when, how, and if to form a family.

Some states will ban and even criminalize contraception.  In this past week, Republican leaders in Idaho[59] and Louisiana[60] promised to criminalize IUDs and other forms of contraception.

In the 2014 Hobby Lobby case, the employer opposed providing health care to their employees who wanted contraception.  The employers argued contraception aborts a fetus.  The Supreme Court agreed.[61]  This Court will let contraception be criminalized again.

The 2015 Obergefell case is based on the right to form your own family.  The 2003 Lawrence v. Texas case ended states’ ability to arrest and prosecute LGBT people for being who they are. in. The Texas Right to Life, and a former Attorney General in Texas, have called for both Obergefell and Lawrence v. Texas to be overturned.  In September 2021, their words explained, “These ‘rights,’ like the right to abortion from Roe, are judicial concoctions. . . and there is no other source of law that can be invoked to salvage their existence.”[62]

In 2017, Arkansas passed a law saying it will not list both lesbian parents as the parent to their child.  The Supreme Court struck it down, citing to Obergefell.[63] 

But Justices Thomas, Alito, and Gorsuch dissented, arguing that the state has the right to define families by biology and that Obergefell went too far.[64]

We now have Justice Kavanaugh and Justice Barrett to protect same-sex couples. We know how that’s going to end.

But here’s the reality.  When we no longer have a federal right for a person to marry someone of the same sex, we no longer have a federal right for a person to marry someone of a different race.  Loving v. Virginia is gone.  States can return to criminalizing and banning interracial marriages.

But also, the conservatives really should understand what they are doing.

The foundational protections for family formation in modern life started in the 1920s.  As part of anti-immigrant sentiment, in 1923, Nebraska passed a law prohibiting schools from teaching the German language to children because “the Legislature had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear their children in the language of their native land.”[65]  In Meyer v. Nebraska, the Supreme Court declared that the state cannot ban the teaching of a foreign language because the Constitution forbids it from exercising the power to “foster a homogenous people.”[66]

In 1925, Oregon passed a law closing private schools that promoted the Catholic religion, the religion of immigrants, to instead promote public education for all. 

In Pierce v. The Society of Sisters of the Holy Names of Jesus and Marry, the Supreme Court disagreed, arguing that there is a fundamental right for parents to educate their children. “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”[67]

So, guess what else is gone—the right for the parents to educate their children.

When the draft opinion comes out, it will be huge.  The rights to contraception, abortion, marriage, and how you raise your child will no longer be guaranteed.  

Some states will recognize the modern world we grew up with.  Other states with Republican-controlled legislatures will not.  They will criminalize the choices we hold dear.

So when this decision comes out, it will be a start of a dark chapter.  But, it’s not the end of the world. 

It is only the beginning.  It is only the first day when you become part of the democracy around us. 

Third Question:  How Can We Best Respond?

If we are going back to the Constitution, let’s start with a moment of awe for what the Founders did. 

They had the gall to declare a right to govern ourselves.  Instead of letting the King decide, they said “We the People,” should be the ones to set our own course, our own destiny. 

In the Constitution, the words “We the People” are not just in there.  They are the first words in the constitution. [68]

Thomas Jefferson made clear that, there is nothing special about the Founders.  He said it was a group of men—and again, it was all men—who shaped the world they wanted. 

But Jefferson said that Democracy would only survive if each generation wrote the constitution to recreate the world as it meant to them.  He suggested a constitutional convention every twenty years “for periodical correction.”[69]

So, here’s the deal.  The Supreme Court is going to end the federal right to privacy and personal liberty.  As a way I explained this to my children, this is Book Five in the Harry Potter Series.  There are two more books, and we are the ones that will write the ending.

The Founders waited to form the Courts in Article III—the last of the three branches because it was supposed to be the weakest one.[70]

The Founders formed Congress first, in Article I.[71]

Up until Mitch McConnell’s attack on President Obama, after every Supreme Court term, Congress would simply enact new laws that overturned or changed the decisions.[72]

That’s how it was supposed to work.  The last time that happened was 2009—when Obama ran on the promise to overturn the Supreme Court’s Ledbetter decision that said women who got less pay than men had no standing to go to sue.[73]

In response, in 2009, Congress passed the Lily Ledbetter Act said, no, the new law is that women can sue when they get less pay for the same job.[74]

Congress has been functionally shut down since then.  The Filibuster stops the Senate. 

Do you know what word is not in the Constitution?  The Filibuster. 

And it is a word that means “pirate” in Dutch.  In 1917, the Senate codified this rule.[75] Mitch McConnell now invokes it for every single bill so nothing passes based on simple majority.

And as Senator McConnell suggested, the Republicans are planning to end it when he gets power back—why don’t we just do it now.

And how do we do that?

“We the People” will vote and will make sure everyone we know votes too.  Who is registered to vote?  Who voted in the presidential election in 2020?  Who voted this past week for school board elections?  Who is planning to vote for in June 7 primary for Congress? Who is planning to vote in the midterms on November 8?

In 2020, America had the highest voter turnout for President in over 100 years.  But it was only 66% of the eligible voters.[76]  In Sweden, Australia, Iceland, Japan, and Denmark, it’s more than 80% of voters.  Most of Europe is higher than 70%.[77]

We are supposed to lead the world in democracy.  We need to vote.  And, in response to the largest voter turnout in 2020, nineteen states—including Montana—made it harder for people to vote.[78]

We the People will vote.  And We the People, will organize and register as many people as we can.

But Why Vote, The Candidates Are The Same (Spoiler: Not True)

People tell me they do not vote because it won’t make the difference.  The parties are the same.

Do you know who perfected that nonsense?  Richard Nixon made this message a core of voter suppression.

When Nixon realized he could not win the young, the Black community, the cities, he stopped campaigning there—he wanted to ignore them to tell them, you do not matter.  We do not matter.[79]

They told them, don’t bother voting, JFK and I are the same.  The Republican and Democratic parties are essentially the same.  Only small differences exist, so please stay home.[80]

When you think your vote does not matter, it very much does.

If your vote didn’t matter, why would nineteen states change their laws out of fear you would use it?

If your vote didn’t matter, why would the Republican party promote cynicism by saying there’s no difference between the parties?

That’s not true.

In Montana, we have Republicans running for state offices on the promise to rewrite the constitution and end the right of privacy.

In Congress, we have Republicans promising to pass a federal law banning all abortions after six weeks.  

It matters who is in office.

We have elections on June 7 and again in November 8, 2022.

Go to the websites of candidates running for Congress, and running for Montana house and Senate.

Did they put abortion rights on the list of issues they will fight for?  If so, those are the candidates you vote for, you work for, and you help get elected.

But Why Vote, It’s Futile (Spoiler: Not True)

I also hear people say they don’t vote because it’s futile.  They voted in 2020, and looked what happened. Nothing.

Look, social justice takes more than one election.

Look how long those who opposed Roe v. Wade worked to get the victory they wanted.

And here’s the thing.  70% of Americans support abortion rights.[81]  But the people who consistently vote are in the 30%.  So, people, if you support our constitutional right to form our own families, get to the polls.

Martin Luther King, Jr. spoke eloquently about how “the arc of the universe bends towards justice.”  I’m not a fan of that quote, because I think it is misunderstood.  It’s a problem if people assume that justice will happen and they don’t have to work for it. 

Susan B. Anthony spent her life working for women’s right to vote.  She died in 1906.  She did not live to see the 19th Amendment pass in 1920.[82]

Martin Luther King, Jr. was assassinated as he worked for racial justice.  He was killed in April 1968.  In July 1968, Congress finally passed the Civil Rights Act, the first promise to fulfill his dream.[83]

Susan B. Anthony and Martin Luther King did not give up after one election cycle.

And neither can you.

For democracy to work, it’s going to have be a verb.  It’s going to have to be something we work for in every single election for the rest of our lives.

But Why Vote, One Vote Doesn’t Make A Difference (Spoiler: Not True)

I lastly hear people say they don’t vote, because what’s the point.  It’s one vote.  It’s one of hundreds at the local level, one of thousands at the state level, one of millions at the federal level. 

I have clients who were born in countries without the right to vote in a fair and free election.  My clients from Russia, Cuba, Haiti, Venezuela, El Salvador, Guatemala, Nigeria, Ghana, Kenya, Cameroon, China, Tibet, Iran, Iraq, Syria, Myanmar disagree with their government.  When they peacefully protested, they were arrested and beaten.  When they cast a vote, their vote was not secret and they were arrested and beaten for not voting he right way.  The right to vote was so important to them, they had to flee.  For them, their one vote was worth the price of losing their home, their family ties, their country.  

When people do not have the right to vote, they know how essential the vote is to control our own life.

That is the same right we want protected by the federal right to personal liberty and the right to form our family.

My father has a saying.   He always told me, that acts of kindness, may seem small.  Like drops of rain.  They fall from the sky.  They are soft. They are unobtrusive. 

But it is a mistake to think that they do not make a difference.

Because, when these soft drops of water combine, water is the only force that can level mountains and carve up valleys.

That is also the force of the vote. 

One vote may seem small, but when, We, the 70% who believe in Roe v Wade, combine our vote; 

When, We the People, combine our votes and we vote in every election for every candidate who stands up for Roe v. Wade, encourage our friends, family, and neighbors to vote in every election for every candidate who stands up for Roe v. Wade, and in volunteer to register voters so they can vote for those who stand up for Roe v. Wade

We will absolutely see a difference.

So, yes, the Supreme Court is dropping a decision that will end modern life as we know it.  States will ban and criminalize decisions that we need to form our families, and form our own life.

But that is not the end.  That is not the end.  If we vote, we get to shape our future.  If we vote, we get to shape our world.

So, register, organize, and vote!

-Kari Hong

[1][1] Josh Gerstein and Alexander Ward, Supreme Court Has Voted to Overturn Roe v. Wade, Draft Opinion Shows, Politico (May 3, 2022),

[2] Michael J. Gerhardt, Super Precedent, 90 Minn. L. Rev 1204,1205–06 (2006) (“Super precedents are those constitutional decisions in which public institutions have heavily invested, repeatedly relied, and consistently supported over a significant period of time. Super precedents are deeply embedded into our law and lives through the subsequent activities of the other branches. Super precedents seep into the public consciousness, and become a fixture of the legal framework.Super precedents are the clearest instances in which the institutional values promoted by fidelity to precedent—consistency, stability, predictability, and social reliance—have become irredeemably compelling.  Thus, super precedents take on a special status in constitutional law as landmark opinions, so encrusted and deeply embedded in constitutional law that they have become practically immune to reconsideration and reversal.”).

[3] Roe v. Wade, 410 U.S. 113 (1973).

[4] Hopgood v. State, 76 Ga. App. 240, 241, 45 S.E.2d 715, 716 (1947) (reversing a conviction for adultery because there was insufficient evidence that both parties were married). Not all states have decriminalized, repealed, or struck down adultery, fornication, and consensual same-sex sodomy crimes. See Christina Oehler, 16 States Where You Can Get that Cheating Jerk Thrown in Jail,Woman’s Day (June 23, 2015),

[5] See State v. Saunders, 381 A.2d 333, 346 (N.J. 1977) (Schreiber, J., concurring) (discussing the origins of fornication law, including its inclusion in the law called “An Act for the Punishment of Crimes (Revision of 1898)” and commenting that “there is no evidence that this statute was intended as anything but an attempt to regulate private morality”).

[6]  RANDALL KENNEDY, INTERRACIAL INTIMACIES: SEX, MARRIAGE, IDENTITY, AND ADOPTION 70-91 (Pantheon Books 2003) (discussing various laws and cases criminalizing interracial relationships from 1876 to the 1950s); see also Matthew J. Smith, The Wages of Living in Sin: Discrimination in Housing Against Unmarried Couples, 25 U.C. Davis L. Rev. 1055, 1058 (1992)  ( “One of the most significant changes has occurred in the criminal law. Historically, most states criminalized cohabitation. Today, most states have repealed these criminal statutes. In addition, many states have decriminalized fornication.”).

[7] Loving v. Virginia, 388 U.S. 1, 2 (1967) (striking down crime of interracial marriage).

[8] Lawrence v. Texas, 539 U.S. 558, 578–79 (2003) (striking down state sodomy laws that only targeted conduct involving intimacy shared by same-sex couples).

[9] Nancy D. Polikoff, A Mother Should Not Have to Adopt Her Own Child: Parentage Laws for Children of Lesbian Couples in the Twenty-First Century, 5 Stan. J. Civ. Rts. & Civ. Liberties 201, 267 n.21 (2009) (“For centuries such children had been filius nullius, the child of no one, meaning they had no legally recognized relationship with, including no right to support from, their mother or father.. . . Women who kept their children, including the black women who were excluded from most of the unwed-mother homes, faced harsh state policies, including denial of public assistance and eviction from public housing. Doctors sometimes sterilized them without their knowledge or consent. Their children’s birth certificates were sometimes stamped ‘bastard.’”).

[10] 24 A.L.R. 570 (Originally published in 1923) (“Except in Connecticut, a bastard cannot, in the absence of legislative provision, inherit from his ancestors or collateral relatives. As a bastard’s descendants, who seek to inherit from his ancestors or collateral relatives, claim by representation, they stand on the same footing as the bastard himself. The result is that if at the time of his death the bastard is incapable of inheriting a particular estate, his descendants, who claim through him, cannot inherit that estate.”).

[11] Id.

[12] Harry D. Krause, Equal Protection for the Illegitimate, 65 Mich. L. Rev. 477 (1967).

[13] Id.

[14] Levy v. Louisiana, 391 U.S. 68, 70 (1968) (striking down a state law that prohibited child born out of wedlock from prevailing in a wrongful death action against their mother.  “We start from the premise that illegitimate children are not ‘nonpersons.’ They are humans, live, and have their being.  They are clearly ‘persons’ within the meaning of the Equal Protection Clause of the Fourteenth Amendment.”).

[15] Griswold v. Connecticut, 381 U.S. 479 (1965) (this decision first recognized a penumbra of federal privacy rights, which stitched together a shield against the general police powers of the states to criminalize intimacy).

[16] Eisenstadt v. Baird, 405 U.S. 438, 443 (1972) (striking down criminalization of providing contraception to unmarried persons).

[17] Roe v. Wade, 410 U.S. 113 (1973).

[18] “The full meaning of the Constitution’s text often eludes textualists.  By viewing the document’s clauses in splendid isolation from each other—by reducing a single text to a jumble of disconnected clauses—readers may miss the significance of larger patterns of meaning at work.”  Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 748 (1999).

[19] “A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a ‘citizen’ within the meaning of the Constitution of the United States.” Dred Scott v. Sandford, 60 U.S. 393, 15 L. Ed. 691 (1857), superseded (1868); see also BRUCE ACKERMAN, WE THE PEOPLE 40-50 (1991) (arguing that the Constitution was twice reformed, first by Reconstruction and then by the New Deal).

[20] “The history and tradition most pertinent to an understanding of the Fourteenth Amendment’s due process protection of liberty is the story of why and how the Amendment came to be—a story of conflict, war, and reconstruction. Although the conflict and war had multiple causes,27 the words spoken in support of the Reconstruction Amendments make clear that the Amendments were inspired by rejection and repudiation of slavery.28 The rejection and repudiation of slavery were, in turn, the product of a successful political movement led by slaves, former slaves, and other abolitionists. The movement was grounded in human rights traditions that had been enshrined in the nation’s founding documents and stood in increasingly explicit challenge to the commodification of human beings. The Fourteenth Amendment is, then, illuminated by the history of slavery, antislavery, war, and Reconstruction; by repudiation of the traditions of slavery; and by the human rights traditions that drove antislavery and Reconstruction.” Peggy Cooper Davis, Contested Images of Family Values: The Role of the State, 107 Harv. L. Rev. 1348, 1353 (1994).

[21] “To think of family liberty as a guarantee offered in response to slavery’s denials of natal connection is to understand it, not as an end in itself, but as a means to full personhood. People are not meant to be socialized to uniform, externally imposed values. People are to be able to form families and other intimate communities within which children might be differently socialized and from which adults would bring different values to the democratic process. This reconstructed Constitution gives coherence and legitimacy to the themes of autonomy and social function sounded in Meyer, Pierce, Skinner, Barnette, and Prince. The idea of civil freedom that grows out of the history of slavery, antislavery, and Reconstruction entails more than the right to continue one’s genetic kind in private. It also entails a right of family that derives from a human right of intellectual and moral autonomy. It entails the right of every individual to affect the culture and embrace, act upon, and advocate privately chosen values. For parents and other guardians, civil freedom brings a right to choose and propagate values.  For children, civil freedom brings nothing less than the right to grow to moral autonomy, because the child-citizen, like the child-slave, flowers to moral independence only under authority that is flexible in ways that states and masters cannot manage, and temporary in ways that states and masters cannot tolerate.” Davis, supra n.20, at 1371–72.

[22] Among some of its decisions, the Warren Court decided Brown v. Board of Education, 347 U.S. 483 (1954) (racial segregation in schools is unconstitutional); Gideon v. Wainwright, 372 U.S. 335 (1963) (establishing a right to counsel in criminal trial); New York Times v. Sullivan, 376 U.S. 254 (1964) (protecting freedom of the press from libel suits); Griswold v. Connecticut, 381 U.S. 479 (1965) (this decision first recognized a penumbra of federal privacy rights, which stitched together a shield against the general police powers of the states to criminalize intimacy); Miranda v. Arizona, 384 U.S. 436 (1966) (excluding statements made to police in interrogations without the advising the defendant of their constitutional rights); Loving v. Virginia, 388 U.S. 1, 2 (1967) (striking down crime of interracial marriage).  The Warren Court “was the most progressive United States Supreme Court in our Nation’s history.  For those of us who see ourselves as civil libertarians, it was a bright and exciting moment in our Nation’s history in terms of protecting free speech, press freedom, separation of Church and State, civil rights. and criminal justice reform.”  Joshua Dressler, Reflections on the Warren Court’s Criminal Justice Legacy, Fifty Years Later: What the Wings of A Butterfly and A Yiddish Proverb Teach Me, 51 U. Pac. L. Rev 727, 727–28 (2020). 

[23] Gino Spocchia, Almost 70 percent of Americans Back Abortion Rights, Polling Finds, Amid Fears Supreme Court Will Vote Down Roe vs. Wade, Independent (May 3, 2022)

[24] Laurence H. Tribe, Lion of Liberalism, Time (Aug. 4, 1997),,33009,986810,00.html (“If John Marshall was the chief architect of a powerful national government, then Brennan was the principal architect of the nation’s system for protecting individual rights. Intellect alone could never have achieved so much, though Brennan’s intellectual brilliance was indispensable. What animated him was passion and compassion, insight and empathy, and a vision of a Constitution of, by and for the people.”).

[25] Joan Biskupic, Justice Blackmun Dies, Leaves Legacy of Rights, Wash Post (Mar. 5, 1999) (“Blackmun was appointed both to an appeals court and to the Supreme Court by Republican presidents. But by the time he retired, he was the most liberal member of the bench. His ideological odyssey intrigued political Washington but was also a measure of the court’s transformation from the progressive post-Earl Warren era of the ’70s to the conservatism of the ’90s.”).

[26] Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 866 (1992).

[27] Huma Khan, David Souter: A Classic Yankee Republican, ABC News (May 2, 2009), (“Though a Republican, Souter deviated from other conservatives on many issues. His opinions on controversial topics like abortion and school prayer irritated some Republicans, many of whom think his nomination was one of the biggest presidential blunders in modern history.  But some who knew him say he did not come in with an agenda and did not care to push decisions in a particular direction. Instead, he came in with an open mind and looked to past cases and the existing law to come to his decision.”).

[28] See supra notes 25 & 26.

[29] Clarence Thomas, Oyez

[30] Samuel A. Alito, Jr., Oyez

[31] Neil Gorsuch, Oyez

[32] Brent Kavanaugh, Oyez

[33] Rebecca R. Ruiz, Amy Coney Barrett Signed An Ad in 2006 Urging Overturning The ‘Barbaric Legacy’ of Roe v. Wade, N.Y. Times (Oct. 1, 2020) (“But with news on Thursday that Judge Barrett had signed the open letter, which was also signed by her husband, Jesse Barrett, a fellow lawyer and former federal prosecutor, the nominee’s view on the ruling became clear. Though the judge’s participation in other groups had indicated her personal opposition to abortion, her stance on the court decision specifically had not been widely known.”).

[34] “This puts Catholic judges in a bind. They are obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty. They are also obliged to adhere to their church’s teaching on moral matters.” John H. Garvey & Amy V. Coney, Catholic Judges in Capital Cases, 81 Marq. L. Rev. 303, 303 (1998).

[35] John G. Roberts, Jr., Oyez

[36] Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 979 (1992) (Scalia, J.,, concurrence in part) (“The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”). More pointedly, the decision explains “the emptiness of the ‘reasoned judgment’ that produced Roe is displayed in plain view by the fact that, after more than 19 years of effort by some of the brightest (and most determined) legal minds in the country, after more than 10 cases upholding abortion rights in this Court, and after dozens upon dozens of amicus briefs submitted in these and other cases, the best the Court can do to explain how it is that the word “liberty” must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice.”  Id. at 683 (Scalia, J., concurring in part).

[37] In a 5-4 decision, Chief Justice Roberts authored the decision that upheld the law known as Obamacare.  See Nat’l Fed. Of Independent Businesses v. Sebelius, 567 U.S. 519 (2012).

[38] Zoe Strozewski, Mike Pence Praises Hungarian Leader’s Conservative Polices, Hopes SCOTUS Bans Abortion, Newsweek (Sep. 23, 2021) (“Recognizing Hungary’s own success in decreasing abortions, Pence expressed hope that the U.S. could do the same, especially in light of the conservative majority instated in the U.S. Supreme Court by the administration he served in with former President Donald Trump. He also spoke of the 300 conservative judges appointed to federal courts during the administration, including three Supreme Court justices, the AP reported.  ‘We may well have a fresh start in the cause of life in America.’ Pence said. ‘It is our hope and our prayer that in the coming days, a new conservative majority on the Supreme Court of the United States will take action to restore the sanctity of life at the center of American law.’”).

[39] Jackson Women’s Health Org. v. Dobbs, 379 F. Supp. 3d 549, 551 (S.D. Miss. 2019), aff’d, 951 F.3d 246 (5th Cir. 2020).

[40] “In an unbroken line dating to Roe v. Wade, States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions. The law at issue is a ban. Thus, we affirm the district court’s invalidation of the law, as well as its discovery rulings and its award of permanent injunctive relief.”  Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 269 (5th Cir. 2019).

[41] Dobbs v. Jackson Women’s Health Org., 19A1027, Docket #1 (Mar. 16, 2020),

[42] Petitioner’s Writ of Petition for Certiorari at 5, 19A1027, (Jun. 15, 2020),

[43] Nina Totenberg, Justice Ruth Bader Ginsburg, Champion of Gender Equality, Dies at 87, NPR (Sep. 18, 2020),

[44] Barbara Sprunt, Amy Coney Barrett Confirmed to Supreme Court, Takes Constitutional Oath, NPR (Oct. 26, 2020),

[45] Petition Granted 19A1027, (May 17, 2021),

[46]The U.S. Supreme Court, Judicial Learning Center

[47]Brief for Petitioners at 1, 19A1027 (Jul. 22, 2022) ) (“Roe and Casey are thus at odds with the straight- forward, constitutionally grounded answer to the question presented. So the question becomes whether this Court should overrule those decisions. It should.“).

[48] Oral Argument, Dobbs v. Jackson Women’s Health Organization at 14–15, 19-1392 (Dec. 1, 2021) (“Now sponsors of this bill, the House bill, in Mississippi, said we’re doing it because we have new justices.  The newest ban that Mississippi has put in place, the six-week ban, the State sponsors said we’re doing it because we have new justices on the Supreme Court.  Will this Court survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”).

[49] Dobbs v. Jackson Women’s Health Organization, Opinion, First Draft (Feb 10, 2022) at 5; id. at 9  (“The Constitution makes no express refence to a right to obtain an abortion. . . .” The decision criticizes Roe v. Wade because “the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.”).  The draft opinion argues that “attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much.”  Id. at 32.

[50] Jessica Glenza, ‘It Will Be Chaos’: 26 States in US Will Ban Abortion if Supreme Court Ruling Stands Guardian (May 3, 2022)

[51] “In truth, that the Convention delegates deliberately drafted a broad and undefined right of ‘individual’ privacy was more a testament to and culmination of Montanans’ continuous and zealous protection of a core sphere of personal autonomy and dignity than it was an attempt to create a greater right than that which already existed by historical precedent. 

Armstrong v. State, 1999 MT 261, ¶ 36 (1999) (Nelson, J.) (citing William C. Rava, Toward a Historical Understanding of Montana’s Privacy Provisions, 61 Alb. L. Rev. 1681, 1716–17 (1998). (striking down law that prohibited physician assistants from performing abortion as a violation of Article II, Section 10 of the Montana Constitution).  “As noted, Article II, Section 10 of the Montana Constitution was intended by the delegates to protect citizens from illegal private action and from legislation and governmental practices that interfere with the autonomy of each individual to make decisions in matters generally considered private.”  Id. at ¶ 35.

[52] Eric Dietrich, Prominent Republican Says Montana Should ‘Throw Out’ State Constitution Montana Free Press (Nov. 18, 2021)

[53] Arren Kimbel-Sannit, Election Lookahead: A Possible GOP Supermajority, A Midterm Environment, Looking U.S. House Races Daily Montanan (Feb. 20, 2022) (“A bicameral supermajority is a powerful tool in state politics, and the possibility of Republicans winning two-thirds majorities in the next session looms large over the 2022 election. The party already holds such a majority in the state House and is just two seats shy in the state Senate.”).

[54] Nadine El-Bawab, Proposed Louisiana Bill Seeks to Criminalized Abortion, Charge Women With Murder ABC News (May 12, 2022),

[55] Ed Pilkington, Murder Charges Dropped Against Texas Woman for ‘Self-Induced Abortion,’ Guardian (Apr. 10,2 2022)

[56] Caroline Kitchener, The Next Frontier for The Antiabortion Movement: A Nationwide Ban, Wash Post (May 2, 2022) (“A group of Republican senators has discussed at multiple meetings the possibility of banning abortion at around six weeks, said Sen. James Lankford (Okla.), who was in attendance and said he would support the legislation. Sen. Joni Ernst (R-Iowa) will introduce the legislation in the Senate, according to an antiabortion advocate with knowledge of the discussions who spoke on the condition of anonymity to discuss internal strategy.”).

[57] Lexi Lonas, McConnell Says National Abortion Ban Possible, The Hill (May 7, 2022),

[58] Jonathan Chait, Will Social Conservates Make Mitch McConnell Kill the Filibuster, New York  (May 11, 2022)  (“Many Democratic critics of the filibuster say McConnell is lying [about not abolishing the rule]. ‘When the opportunity presents itself, there’s no doubt in my mind that they’ll change the rules to pass a bill criminalizing abortion federally,’ says Senator Chris Murphy.”).

[59] Ian Max Stevenson, After Roe Decision, Idaho Lawmakers May Consider Restricting Some Contraception, Idaho Statesman (May 10, 2022)

[60] Editorial Board, Louisiana Reveals The War on Rights That Is Coming If Roe Is Overturned, Wash Post (May 10, 2022)

(discussing proposed bill that “appears to declare the use of in-vitro fertilization, intrauterine devices and emergency contraception to be homicide, too.”).

[61] Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 701, 134 S. Ct. 2751, 2765, 189 L. Ed. 2d 675 (2014) (upholding religious exemption for a business owner who seek to be “excluded from the group-health-insurance plan they offer to their employees certain [which covers] contraceptive methods that they consider to be abortifacients”) (emphasis added).

[62] Nico Lang, The Architect of Texas’ Abortion Ban Wants to Make Gay Sex Illegal Again, Them (Sept 20, 2021)

[63] Pavan v. Smith, 137 S. Ct. 2075, 2077, 198 L. Ed. 2d 636 (2017) (“Because that differential treatment infringes Obergefell ‘s commitment to provide same-sex couples “the constellation of benefits that the States have linked to marriage,” id., 135 S. Ct., at 2601” the Court struck down a court order that had prevented both lesbian mothers to be on their child’s birth certificate).

[64] Pavan v. Smith, 137 S. Ct. at 2079 (Gorsuch, J., dissenting) (“Neither does anything in today’s opinion purport to identify any constitutional problem with a biology based birth registration regime.”).

[65] Meyer v. Nebraska, 262 U.S. 390, 401 (1923) (“It is said the purpose of the legislation was to promote civic development by inhibiting training and education of the immature in foreign tongues and ideals before they could learn English and acquire American ideals, and ‘that the English language should be and become the mother tongue of all children reared in this state.”).

[66] Id. at 402.

[67] “We think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”  Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534–35 (1925).

[68] U.S. Const., Preamble

[69] Robert J. Martin, The Case for Convening A Constitutional Convention, N.J. Law., 6/97, at 39, 42 n.6 (1997)  (nothing that Thomas Jefferson called for “a constitutional constitution be convened every 20 years ‘for periodical repairs,’ thereby affording each generation the ‘right to choose for itself the form of government it believes most promotive of its own person.’”) (citing Letter from Thomas Jefferson to Samuel Kercheval (July 12, 1816) (cited in Merrill Peterson, Mr. Jefferson’s Sovereignty of the Living Generation, 52 Va. Q .Rev. 437, 443-47 (1976)).

[70] U.S. Const, Art. III; see Alexander Hamilton, Federalist Paper No. 78 (“the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.  This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.”).

[71] U.S. Const, Art. I.

[72] In Geduldig v. Aeillo, 417 U.S. 484, 497 n.21 (1974) and again in General Electric Co. v. Gilbert,, 429 U.S. 125 (1976), the majority opinions notoriously claimed that discrimination towards pregnant women is not based on gender because the employer may hire all “pregnant persons,” which is not based on sex.  “[T]he exclusion of pregnancy from coverage under California’s disability-benefits plan was not in itself discrimination based on sex.” 429 U.S. at 135.  In response, and in overturning both decisions, in 1978, Congress passed the Pregnancy Discrimination Act of 1978.  See Reva B. Siegel, You’ve Come A Long Way, Baby: Rehnquist’s New Approach to Pregnancy Discrimination in Hibbs, 58 Stan. L. Rev. 1871, 1878 (2006).

[73] Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 628 (2007), overturned due to legislative action (Jan. 29, 2009).

 [74] Pub. L. No. 111-2 (Jan 29, 2009); Sheryl Gay Stolberg, Obama Signs Equal-Pay Legislation, N.Y. Times (Jan. 29, 2009)

[75] Filibuster, U.S. Senate,

[76] Drew Desilver, Turnout Soared in 2020 As Nearly Two-Thirds of Eligible U.S. Voters Cast Ballots for President, Pew Research Center (Jan. 28, 2021)

[77] Drew Desilver, In Past Elections, U.S. Trailed Most Developed Countries in Voter Turnout Pew Research Center (Nov. 3, 2020),

[78]Voting Laws Roundup: October 2021, Brennan Center (Oct. 4, 2021)

[79] See generally Gloria Steinem, In Your Heart You Know He’s Nixon, N.Y Mag (Oct. 28, 1968),; James Boyd, Nixon’s Southern Strategy, N.Y. Times (May 17, 1970),

[80] Kennedy-Nixon Presidential Debate Transcript, Commission on Presidential Debates (Sept. 26, 1960),  (“The things that Senator Kennedy has said many of us can agree with. “).

[81] Gino Spocchia, Almost 70 percent of Americans Back Abortion Rights, Polling Finds, Amid Fears Supreme Court Will Vote Down Roe vs. Wade, Independent (May 3, 2022)

[82] Editors, Susan B. Anthony, History (Feb. 25, 2022)’s%20Death-,Susan%20B.,have%20the%20right%20to%20vote.

[83] Amy Sherman, Tracing Civil Rights Legislation Before and After Martin Luther King Jr.’s Death, Politifact (Jun. 8, 2020)

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