Conservative Justices Show Contempt for Women’s Rights in Dobbs v. Jackson Hearings

(Jordan Uhl / Flickr)

This week, all eyes were on the Supreme Court as it heard arguments in Dobbs v. Jackson Women’s Health Organization (JWHO)—a case that could fundamentally change the state of abortion access across the U.S. As Julie Rikelman, the attorney representing JWHO, laid out in her opening statement, the Mississippi law at issue in this case which bans abortion two months before viability is “flatly unconstitutional under decades of precedent” and is “a fundamental deprivation of [women’s] liberty” that, if upheld, “will propel women backwards.”

Yet, throughout nearly two hours of arguments, the Court’s conservative majority seemed willing to ignore the precedent established in Roe and confirmed in the Casey decision. Justice Brett Kavanaugh attempted to justify reversing Roe, reciting a list of cases in which the Court reversed its earlier decisions and saying that some of the “most consequential cases” in the Court’s history had overturned precedent.

But as Justice Sonia Sotomayor emphasized in her questioning of Solicitor General Elizabeth Prelogar (who appeared in support of JWHO), the cases Kavanaugh listed, “involved [the Court] recognizing and overturning state control over issues that we said belong to individuals,” and “stopping the government from intruding in … liberties” guaranteed by the Constitution. Prelogar agreed, responding that in reversing Roe, “the Court would be doing the opposite.”

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Supreme Court Justice Sonia Sotomayor swears Vice President Kamala Harris into office during the 59th presidential inauguration in Washington, Jan. 20, 2021. (Department of Defense / Carlos M. Vazquez II)

The conservative majority seemed oblivious to the damage to the Court’s legitimacy should they overturn Roe. The Court’s more liberal justices noted that the only thing that had changed since Roe and Casey were decided is the composition of the Court. Justice Sotomayor pointedly asked “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

But it was the majority’s apparent contempt for women’s fundamental rights and disregard for the impact that abortion bans would have on women’s lives that I found most shocking. What’s more, the Court has still not issued its decision on the unconstitutional Texas abortion ban, which for more than three months, has cut off virtually all access to abortion in that state.

I was heartened by both Prelogar’s and Rikleman’s forceful explanations about how essential abortion is to women’s equality. If women are “not able to make this decision, if states can take control of women’s bodies and force them to endure months of pregnancy and childbirth, then they will never have equal status under the Constitution,” argued Rikelman.

It’s true: women still do not have full equal status under the law. As we reckon with the likelihood that Roe will be overturned when the Court issues its decision expected next June, we must fight even harder for passage of the Women’s Health Protection Act that would ensure access to abortion and for final action on the Equal Rights Amendment. Both are now held hostage in the Senate by the cruel reality of Republican filibuster.

In the weeks and months ahead, as we always have, Ms. will bring you the information you’ll need to join this fight for equality. We will never give up—and neither should you.

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Katherine Spillar is the executive director of Feminist Majority Foundation and executive editor of Ms., where she oversees editorial content and the Ms. in the Classroom program.