Was June 24, 2022, the day America returned to the laws of 1868?
That’s the question Jim Oleske has pondered in the week since the U.S. Supreme Court overturned the federal right to abortion, triggering the closure of clinics across the nation.
Oleske is well positioned to consider what that means. He teaches constitutional law at Lewis & Clark Law School in Portland. Before taking that job in 2011, he spent two years as chief of staff for the Office of Legislative Affairs in the Obama White House. He now specializes in religious freedom cases and has written on Christian objections to the legalization of same-sex marriage.
What Oleske found most troubling in the Dobbs v. Jackson ruling wasn’t that five justices found no constitutional right to an abortion. They also declared that the 14th Amendment, which forbids the government from taking Americans’ life, liberty or property without due process, wasn’t written with abortion in mind so it didn’t apply. In fact, argued Justice Clarence Thomas, the court should reconsider any due-process decision that wasn’t intended by the authors of the 14th Amendment in 1868. That means birth control and same-sex marriage are imperiled, too.
WW asked Oleske whether Americans would tolerate a trip back in time. But we started by asking him whether the right to abortion ever stood on solid legal footing.
WW: Was Roe v. Wade always an overreach by the court? Justice Ruth Bader Ginsburg famously said the court chose the weaker argument when making that decision.
Jim Oleske: That’s the subject of great disagreement. There are people who think it was rightly decided, but for the wrong reasons. The Roe decision did not rely, as Justice Ginsburg would have, on equality rights. It relied on liberty rights. To the extent her argument is that the right to abortion would’ve been on firmer ground if the court provided an equality rationale from the start for it: yes.
And one of the interesting things about the dissenting opinion [on Dobbs v. Jackson], co-written by Justices Breyer, Kagan and Sotomayor, is that it very explicitly grounds its rationale in equality, in addition to bodily integrity and personal autonomy. And the dissent in some ways is channeling Justice Ginsburg by relying very heavily on notions of full equality for women in American society.
The court’s decision on same-sex marriage drew not only on liberty rights, but also explicitly on equality rights.
Do you think it’s on stronger ground because it drew on equality rights?
Yes. At a very simplistic level, relying on two constitutional principles is better than one. So even if a court were to conclude, well, there isn’t a fundamental right as a matter of due process to same-sex marriage, nonetheless the court might conclude it’s discrimination on the basis of sexual orientation to prevent two people of the same sex from marrying. It is a matter of making sure you’re wearing a belt and suspenders.
How concerned should our readers be that the court is systematically dismantling much of the social progress of the past 50 years?
I think the reason the Dobbs decision is so important is not just the incredible importance of overturning the right to abortion specifically, but it represents a profound shift in the way the court goes about recognizing fundamental rights. So, you know, our Bill of Rights has a bunch of specific rights it mentions. But then, at the end, it says the fact that we’ve mentioned these rights doesn’t mean the Constitution should be interpreted not to protect additional rights. And the court has long found fundamental rights that are not listed in the Constitution. It has not in the past limited itself to things that were part of the history and tradition in 1868.
What’s so profound about Friday’s decision is, the court said that’s going to be the test: Was there a history and tradition in 1868 recognizing this right? And if not, well, it’s not protected.
If you use that same reasoning, well, there wouldn’t be a right to contraception. There wouldn’t be a right to same-sex marriage. The logic of the court’s opinion certainly calls all of those cases into doubt.
A lot of our readers look at these decisions and feel like we’re headed toward a theocracy—a Handmaid’s Tale sort of scenario. Is that reasonable?
I understand the concern, but the cautionary note I would give is this: To the extent the court is saying, “We’re looking to history and tradition,” it’s the history and tradition of either 1868 or 1789. That certainly looks dramatically different than today. But on the other hand, we don’t necessarily think about the United States having been resembling a theocracy in 1789 or 1868. In fact, we broke from Europe on the very idea that we weren’t a theocracy. And so it’s a dramatic difference from today, but I’d be cautious about overstating.
That might be cold comfort for women, who couldn’t vote in 1868, couldn’t own property in 1789. Is there reason to think we’re headed back to those legal standards?
It should be no comfort. Many societies that don’t meet the definition of a theocracy have subordinated women and invoked religious arguments to justify that subordination, and laws in the United States treated women as subordinate to men for most of our history. To give just one example: Until 1972, California law provided that “the husband is the head of the family” and “may choose any reasonable place or mode of living, and the wife must conform thereto.”
Although the right to vote is guaranteed to women by the 19th Amendment, it is fair to ask whether the test in Dobbs might permit states latitude to chip away at other rights to sex equality that the court has previously grounded in the 14th Amendment.
Does the court risk delegitimizing itself in the public eye if it appears to be pursuing an explicitly political or religious agenda?
Certainly, with the combination of adopting that approach and the speed with which it is doing it. On the one hand, what happened on Friday is not new. There were four votes to overturn Roe on exactly the same grounds in 1992. Chief Justice Rehnquist thought he had a majority to overturn Roe, but he lost it. He only had four votes. But he had four votes! And so, if you look at it that way, now we have a more conservative court and there are now five votes to do what the court almost did in 1992.
On the other hand, based on developments just since 2016: Judge Garland not getting a hearing for [appointment to] the court, President Trump getting three nominees to the court after pledging to appoint justices who would overturn Roe. Yes, you could imagine the public looking at this and saying: “It’s just political. When the Republicans get their justices, the court won’t recognize abortion rights. And when the Democrats get their justices, they will recognize abortion rights.”
What are the implications for American life if enough people decide the court is essentially illegitimate?
It’s untested. We don’t know. The closest we’ve come is if Al Gore hadn’t accepted the Supreme Court’s decision in Bush v. Gore. Then we would’ve had a test of that. But it would be a fundamental change to our republic.
Are there practical ways in which you can see that changing American life?
I’ll leave that to the sociologists.