The far-right U.S. Supreme Court’s originalist ideology threatens citizens' basic human rights
The 1973 Supreme Court case Roe v. Wade ruled that the Constitution protects a woman’s right to an abortion on the grounds that the 14th Amendment’s Due Process Clause grants women the privacy to have an abortion.
However, there has always been a debate about whether abortion rights are grounded in privacy rights or gender equality.
The 14th Amendment’s Equal Protection Clause declares that no individual or collective entity shall be deprived of the protection provided by the law, a protection that is also enjoyed by comparable individuals or groups. Stated differently, individuals or groups in similar circumstances must be treated equally under the law.
The original intent of this clause was to safeguard Black individuals from experiencing discriminatory treatment, however, the broad language employed has resulted in the Supreme Court asserting that any form of racial discrimination is constitutionally suspect.
A “suspect classification” pertains to a group of individuals who, throughout history, have been subjected to systematic discrimination. The Supreme Court regards race, national origin, religion, and alienage as categories falling under this classification.
The Court does not include women (or LGBTQ individuals) as a suspect class, but many argue they should be included. Constitutional law scholars use the term “quasi-suspect classification” when considering gender.
This is important since it determines which of the three levels of judicial scrutiny (standards of Constitutional review) the court uses to evaluate cases.
Here is a quick political science/law lesson on the various standards of Constitutional review:
Rational Basis Review
Rational basis review pertains to the application of a level of scrutiny used by courts in the determination of cases that pose constitutional questions, especially those that encompass the Due Process and/or Equal Protection Clauses. Rational basis is the lowest level of scrutiny that a court exercises when undertaking the process of judicial review. The rational basis review examines whether a governmental action serves as a reasonable method toward an objective that the government may legitimately pursue. This examination necessitates that the governmental action is “rationally related” to a “legitimate” government interest. The governmental action under evaluation shall be presumed constitutional, and the responsibility of proving otherwise rests on the party challenging it.
Intermediate Scrutiny
Intermediate scrutiny is employed to evaluate laws or governmental actions that encroach upon rights that are considered “quasi-fundamental” and/or establish classifications that are deemed “quasi-suspect.” It is the second most rigorous level for deciding issues during judicial review. The court has designated categories such as sex, illegitimacy, and illegal alienage as quasi-suspect. To meet the requirements of the intermediate scrutiny test, it is necessary to demonstrate that the challenged law or policy advances a significant government interest in a manner that is substantially connected to that interest.
Strict Scrutiny
Strict scrutiny is the most rigorous standard of judicial review employed by federal courts in the U.S. It arises in two primary circumstances: firstly, when a constitutional right that is considered “fundamental” is violated, especially those explicitly listed in the Bill of Rights and those that the courts determine to be protected by the liberty provision of the Due Process Clauses, and secondly, when the government action involves the utilization of a “suspect classification,” such as race or national origin, which raises concerns under the Equal Protection Clause.
In Roe v. Wade, the Court correctly applied Strict Scrutiny as the standard of review since they classified the right to abortion as “fundamental.” In the following years before the 2022 Supreme Court case Dobbs v. Jackson Women’s Health Organization, individual justices made arguments analyzing the constitutionality of abortion restrictions based on the Equal Protection Clause.
The spectrum of equality arguments on the right to abortion is extensive, yet they all converge on certain fundamental anxieties.
Sex equality arguments inquire as to whether the restrictions on abortion are solely influenced by the state’s concern for safeguarding potential life or if these laws also embody constitutionally questionable judgments about women. To illustrate, does the state consistently take action to safeguard potential life beyond the context of abortion, such as providing prenatal care and job protections to women desiring to become mothers?
Alternatively, does the state selectively protect potential life? In this case, could it be possible that the restrictions on abortion reflect traditional gender stereotypes pertaining to sex, caregiving, or decision-making in relation to motherhood?
Arguments for sex equality are also concerned with the impact of abortion restrictions on gender. These arguments note that abortion restrictions deny women control over the timing of motherhood, thereby exacerbating the inequalities in education, the economy, and politics that are influenced by childbirth and child-rearing.
Sex equality arguments also inquire whether the state, in protecting the unborn, has made efforts to alleviate the effects of forced motherhood on women, or if the state has proceeded without consideration for the impact of its actions on women.
Many equality arguments are founded upon the notion that limitations on abortion might involve both women and the unborn. Rather than presuming that restrictions on abortion are entirely harmless or entirely discriminatory, the analysis of equality considers the possibility that gender stereotypes could influence how the government pursues objectives that would otherwise be deemed harmless. The government might safeguard the lives of the unborn in ways that it would not, were it not for stereotypical assumptions about women’s sexual or maternal roles.
Nonetheless, there are many variants of the gender equality argument for abortion rights. Yet, the general notion among all equality arguments tends to be that women can be seen as a suspect class given only women can become pregnant. Thus restrictions on abortion discriminate against women, hence, the Equal Protection Clause should apply to abortion rights.
The Court could have originally argued that women are a suspect class in Roe v. Wade, which would have also allowed the Court to apply strict scrutiny as well. However, the Court chose to assert that abortion was a fundamental right and argued abortion rights should be protected based on privacy rights.
The best approach regarding the justification for the protection of abortion rights in terms of privacy or equality is still debated among scholars today.
Yet, the legal argument in Roe v. Wade no longer matters given in 2022 the Dobbs ruling disregarded precedent and overturned Roe by eliminating the right to abortion that was rooted in personal liberty.
The 6–3 majority vote in Dobbs was determined by the Republican-appointed Justices Samuel Alito, Clarence Thomas, Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh, as well as Chief Justice John Roberts.
Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, all appointed by Democrats, dissented.
The majority in the Dobbs ruling used the rational basis test, which is the lowest level of scrutiny that a court can exercise when undertaking the process of judicial review. The Court rejected the notion that the Equal Protection Clause applies to abortion.
“A State’s regulation of abortion is not a sex-based classification,” wrote the Dobbs majority, citing the 1974 Geduldig v. Aiello Supreme Court ruling — that many constitutional law scholars believe no longer holds legal relevance.
In Geduldig v. Aiello, the Court contended that a policy that excludes pregnancy from a disability insurance program did not constitute sex discrimination in violation of the Equal Protection Clause. The Court argued that this is because the insurance program did not differentiate between men and women, but solely between individuals who are pregnant and those who are not.
Subsequent cases, particularly the 1996 ruling in U.S. v. Virginia authored by Justice Ruth Bader Ginsburg, broadened the scope of constitutional equality for women by invalidating laws rooted in stereotypical notions about women.
Yet, in Dobbs, the majority vote ignored long-standing precedent and interpreted the Constitution in accordance with the globally unpopular ideology of originalism.
Originalism is a method employed for the interpretation of constitutional and statutory provisions. Proponents of originalism (originalists) contend that the Constitution should be interpreted in accordance with the Framer's original meaning at the time of its adoption.
Originalists disagree with the notion of substantial legal transformation being propelled by judges within a common law framework and instead advocate for alterations to laws through the Legislature or via Constitutional amendments.
This perspective stands in stark contrast to the theory of “living constitutionalism,” which posits that the Constitution is living and can adapt alongside society, resulting in a shifting interpretation of constitutional texts over time.
This originalist interpretation in Dobbs could be deployed by Republican-appointed justices to eliminate the application of the Equal Protection Clause for women altogether. It can also be used to bar LGBTQ individuals from being protected under this clause.
Originalism essentially argues that the 14th Amendment only protects rights explicitly written in the Constitution. Originalists also contend that the 14th Amendment applies to whatever rights the Framers intended to safeguard when creating the amendment in 1886, as well as the rights “deeply rooted in the Nation’s history and traditions.”
Yet, the Constitution does not explicitly specify that originalism is the correct method for constitutional interpretation. It appears evident that the Framers intentionally invited forthcoming generations to interpret the Constitution according to their time period. Had they intended for the Constitution to be understood in the precise way they comprehended it, they would have taken measures to ensure that the meanings of phrases and words used were self-evident and explained.
Many scholars have argued that the general language throughout the Constitution indicates it was meant to evolve via judicial interpretation.
The 8th Amendment of the Constitution prohibits the government from imposing “cruel and unusual punishments” on criminal defendants.
Who is to say what constitutes “cruel and unusual” punishment? Clearly, with such general language, the answer will vary depending on the time period or culture.
There are countless other instances of vague language in the Constitution, such as the notion that no one shall be “deprived of life, liberty or property without due process of law,” which is written in the 5th and 14th Amendments.
What exactly constitutes “due process”?
Originalists claim to be opposed to “judicial activism,” yet they employ originalism inconsistently and sometimes interpret the Constitution as if it were a living document. In theory, originalists would contend that the original meaning of the Second Amendment only applied to militias, yet they interpret it as the right for all citizens to bear arms.
The Supreme Court has established unenumerated (implied) powers given the Constitution was never meant to explicitly state every law. If originalist ideology was strictly applied, individuals would not have the right to travel, vote, have privacy, and more.
It is well known that judges do not simply recite what is directly written in the Constitution, rather they interpret it based on history, precedent, and the contemporary era.
The Dobbs ruling has eroded gender equality under the law. Dobbs will not be reversed with the current Republican-appointed majority on the Supreme Court.
Democrats must secure a majority in both chambers of Congress once again and successfully enact an Equal Rights Amendment. This proposed amendment seeks to incorporate a clear and unequivocal assurance of sex equality into the U.S. Constitution. It aims to safeguard the fundamental right to abortion as well as the comprehensive spectrum of reproductive healthcare services.
Democrats should make another exception for the Senate filibuster to pass this amendment in the future if necessary or abolish it altogether.
President Joe Biden should also strongly consider attempting to expand the Supreme Court to ensure that this Republican-appointed majority cannot continue to chip away at basic human rights.
As long as this Republican-appointed majority that adheres to originalism is on the bench, every right not explicitly written in the Constitution is at risk, such as same-sex marriage interracial marriage, the right to contraception, the right to privacy, and so much more.
Image edited by author | Republican-appointed majority | Clarence Thomas (bottom left) by Steve Petteway, Samuel Alito (second bottom from left) by Josh Ellie, Amy Coney Barrett (second bottom from right) by Rachel Malehorn, Brett Kavanaugh (bottom right) by Fred Schilling, John Roberts (top left), Neil Gorsuch (top right), both by Franz Jantzen | Background photo: 2017 Women's March | Creative Common
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