Timely links to external news and articles, usually valuation related, with occasional commentary.
The most basic argument of the Dobbs decision is that, in 1868, states did not consider abortion a fundamental right. That is accurate, as the magisterial dissent, co-authored by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, acknowledges.
But in 1868, there was also no clearly established right to contraception. There were no Miranda rights to protect arrestees. There was no right to choose your own sexual partner, let alone to marry the person you love. And there is no definitive historical evidence that the people who ratified the 14th Amendment thought that doing so prohibited segregation. If you take Dobbs’s logic seriously, all the landmark decisions establishing these rights are wrong.
Will the court now undertake a major effort to revisit these core rights?
Alito’s majority opinion, which is not significantly different from his leaked draft, tries to suggest the court will not do that. Its only basis for that suggestion is to say that abortion is “unique” because it involves life. Justice Clarence Thomas, in a separate concurrence, called openly for revisiting rights to sexual freedom and gay marriage. The dissenters argued cogently that it is now open season on those and similar basic rights.