“I am no longer a person”.
“I cried for hours this morning.”
“I don’t know what it is to be American.”
These were the reactions of several women friends I talked to about to the radical, dangerous Dobbs decision by the U.S. Supreme Court last Friday. In overturning 50 years of settled law, the Court did two kinds of grievous harm: first, to every woman in our country and second, to its own legitimacy.
The first harm is obvious. By throwing out long-standing law that the U.S. Constitution protects abortion rights, Dobbs instead subjects women to the whims of politicians in state legislatures, some of whom are even more radical and dangerous than the Court’s decision itself. “Trigger” bans are already going into effect, extremist laws have recently been passed in states like Oklahoma, and vigilant enforcement mechanisms have been passed in states like Texas. These are not laws that women should be subjected to in any free society.
It is important to note that abortion remains legal, available and safe in Colorado. Fortunately, this is the case in some other states as well, states whose laws respect women’s autonomy.
But Dobbs means that a woman’s right to control her own body and life now depends on what state she lives in. The radical justices who overturned Roe may believe their decision will reduce abortions. However, their decision will mostly make access to abortion less equal.
Women with means living in restrictive states will travel to other states to exercise their right to bodily autonomy. Women with lesser means may rely on financial support from abortion funds, which have attracted much new notice for precisely this reason, or may have to self- manage an abortion without support from a medical professional. Even in the least trying of circumstances, women in restrictive states will pay for the Court’s decision in time away from home and work and certainly in emotional turmoil for being put through such travails by their own government.
That travail and turmoil is the basis of the second grievous harm of the Court’s decision – to its own legitimacy. We’ve been here before, and the injuries have been very slow to recover from. The 1857 Dred Scott case helped precipitate the Civil War. The 1896 Plessy case upheld the Jim Crow-era “separate but equal” doctrine. Numerous early 20th century cases exemplified by the Lochner decision struck down worker protection laws during a period of rapid industrialization and dangerous working conditions. During World War II, Korematsu upheld internment of Japanese Americans in camps, some of which were here in Colorado. More recently, Bowers v. Hardwick upheld criminalization of consensual sexual activities between adults.
Dobbs now joins this shameful history of cases that have departed from our nation’s core principles.
Americans’ opinions about abortion rights vary, but very few people would agree with the idea that the U.S. Constitution should offer zero protection at all, leaving the matter entirely to the whims of radical state politicians who could criminalize medical providers, those who assist women in obtaining abortions, or even pregnant women themselves. Yet in substituting their own feelings about abortion rights for decades of settled law, that is exactly what the Court majority has done.
A Court that acts in this way cannot be counted on to safeguard other rights that Americans enjoy. For example, last week, days before Dobbs, the Court’s Vega decision weakened the landmark, decades-old, Miranda case concerning the right against self-incrimination. The most radical members of the Court are, at least, not hiding the ball. In a concurring opinion, Justice Thomas explicitly urged reconsideration of cases affirming the Constitutional rights to use contraception, to consensual sexual activities between adults, and to marriage equality.
In the face of a Court bent on eliminating Constitutional rights, state legislatures matter more than ever. In Colorado, our legislature acted this year to protect abortion rights in state law, and I was proud to support this. In Colorado today, women still have sovereignty over their own bodies and lives. Tragically, this is not true in all other states.
In the face of decisions like Dobbs, I’m sure my friend isn’t the only one struggling with “what it is to be American” right now. She added, “my heart is in pain” due to the decision.
Mine is too. But as a man who believes women are his equals under the law, as an attorney, and as a state legislator, I will find resolve in that pain for the struggles that now lie ahead.
State Rep. Mike Weissman, D-Aurora, represents House District 36.