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When I was in college, as it happens the same college Supreme Court Justice Samuel Alito was attending, and just beginning to get interested in American government and the Constitution, conservatives were up at arms over a series of Supreme Court decisions. They faulted what they branded an “activist” court for expanding on cases before them to consider issues not raised by the facts in dispute, for finding in the Constitution rights and powers not actually written in the text, and for in effect writing laws, a power assigned to Congress with the approval of the President.

They were talking about decisions like 1954’s Brown v. Board of Education, which reversed Plessy v. Ferguson, a ruling which allowed the segregation of black and white students into separate schools. Chief Justice Earl Warren, a former Republican governor of California, appointed by President Dwight Eisenhower, who called him a “liberal-conservative,” wrote Brown, effectively ending racial segregation in public schools.

Warren strongly believed that the highest purpose of the law was to “right wrongs” by applying equity and fairness. His Court expanded the constitutional rights of defendants, ensured equal representation in state legislatures, outlawed state-sponsored prayer in public schools, and paved the way for the civil rights and voting rights legislation of the 1960s and the legalization of abortion in 1973. Warren was also a consummate politician, and a hallmark of his leadership is the fact that Brown, Gideon v. Wainwright (right to counsel in criminal cases), and Cooper v. Aaron (states are bound by Supreme Court decisions) were all unanimous decisions. Engel v. Vitale (banning prayer in public schools) had only one dissent.

These landmark decisions on fundamental rights worked through the Fourteen Amendment’s due process clause.

The conservatives hated each and every decision, thought Warren was a traitor to his party, and Eisenhower’s greatest mistake. Republican Richard Nixon, who is the only President to resign his office in disgrace, feuded with Warren for thirty years.

Now comes the most dramatic expression so far of the conservative’s hatred. Alito’s opinion overturning Roe v. Wade takes from American women the right to an abortion, which had been guaranteed since Roe in 1973. In writing Dobbs v. Jackson Women’s Health Organization Alito literally screams, “Roe was egregiously wrong from the start.” Alito’s campaign to overturn Roe began at least as far back as 1985 when he was working in the Department of Justice.

The actions of the Dobbs majority are about as “activist” as you can get. Even Chief Justice John Roberts thinks they went too far. He concurred in upholding the Mississippi law but wrote he would not have overturned Roe, something Mississippi had not asked for. The Court traditionally does not go beyond what it requested in granting relief. But this Court is not concerned with tradition and this Chief is not in control of this Court.

In his sweeping opinion Alito attacks the use by the Roe majority of the Fourteen Amendment’s “Substantive Due Process” clause. We will avoid getting into the deep weeds of Constitutional Law. There are many, many, many sources on this issue if you are interested. The Legal Information Institute of Cornell Law School says:

Substantive due process is the principle that the Fifth and Fourteenth Amendments protect fundamental rights from government interference. Specifically, the Fifth and Fourteenth Amendments prohibit the government from depriving any person of “life, liberty, or property without due process of law.” The Fifth Amendment applies to federal action, and the Fourteenth applies to state action.

The Constitution is one of “enumerated rights,” the Tenth Amendment reserving rights not specifically listed to the States or the People. Just as the Fifth Amendment protects the people from the federal government, the due process clause of the Fourteenth Amendment, the Court has held, protects people from their state government.

Until Dobbs. Now the issue of abortion, which Alito notes is not to be found in the Constitution, is said to be a right that should be administered by each individual state. Just as a practical matter, in a nation where people and goods freely cross state lines, the idea is ridiculous. Alito branded Roe‘s reasoning “exceptionally weak.” Dobbs is weaker still. The right-wing of the Court threw the very lives of millions of Americans into the hands of state lawmakers just one day after they ruled those same lawmakers are not competent to decide the terms under which they issue concealed carry permits for guns in their own states.

Alito argues that abortion is different from other issues because a “potential life” is at stake. This is not a term to be found in the Constitution either. And if the Roe proposition that the viability of a fetus could be marked by trimesters was “weak,” the Dobbs proposition put forth by Alito and many state legislatures that life dates to the moment of conception is weaker still. The Constitution, for what it is worth, in the Fourteen Amendment, defines citizens as, “All persons born….” Not “conceived.”

The reason Alito cannot make a stronger argument for his irrational proposition is that there is none to be made. Neither law nor science can define when life begins. They couldn’t do it in 1973. They cannot do it today. If we could state with specificity when life begins, we could put forth a solution to what is a moral dilemma. Since we cannot, I opt to believe a women must be allowed to make the decision about what happens to her own body and that neither I nor the government should interfere.

Alito and those who support his position fail on at least two fronts. First, they are hypocritical because they claim to be striving to save a life. Yet they will not support universal health care to protect that life, or pre-natal care, or obstetric care, or pediatric care, or additional aid to public education, or school lunches, or any other of a lengthy list of things they could do to ensure a good life for every “person born….” They opposed supplemental aid which lifted millions of children above the poverty level during the pandemic. They can’t even ban assault rifles to keep kids from getting massacred in school. Even in a statement supporting the Dobbs decision, the Vatican makes this point.

Second, they fail because they are making what is at its core a religious argument. And their religion does not speak for every American. The belief that life begins at conception is a very Catholic belief. And Alito is very Catholic. So are Clarence Thomas, Brett Kavanaugh, Amy Coney Barrett, and Chief John Roberts. Neil Gorsuch was raised Catholic but is now a member of an Episcopalian church. Sonia Sotomayor, who usually votes with the left-wing and dissented from Dobbs, is also Catholic.

This is not reflective of the U.S. population. And more on point, the Roman Catholic doctrine of the majority is not reflective of a majority of those who hold religious beliefs.

Opinion on abortion is far from settled. More importantly, public views on abortion by religion reflect the difficulty most people have with the question of how and when life begins. While Roman Catholic doctrine is clear, there are different views held among the major religions. And among various denominations within religions.

For several religious, theological scholarship places the health of the mother in a paramount position under some circumstances. That, simply put, means many laws banning abortion will violate the religious beliefs of millions of Americans.

This is not hyperbole. A month after releasing his opinion, Alito took a victory lap in Rome. Delivering a July 21 keynote address at a gala dinner sponsored by the University of Notre Dame Law School’s Religious Liberty Initiative, Alito told the Catholic audience writing the ruling was an “honor.”

Attendance at the Religious Liberty Summit was by invitation only. Furthermore, according to the summit’s schedule on their website, Notre Dame Law School’s Religious Liberty Initiative did not include Alito among its list of speakers. The video of Alito’s keynote address was released on the official YouTube page of Notre Dame Law School July 28, more than a week after he delivered his remarks.

Alito also said that to “win the battle to protect religious freedom in an increasingly secular society, we will need more than positive law…. Religious liberty is under attack in many places because it is dangerous to those who want to hold complete power.”

It is an amazing statement emanating from some alternative universe where up is down and right is wrong. Religious freedom means the freedom to choose one’s own religion. Or, if one chooses, no religion at all.

In Alito’s universe, religious freedom is the freedom to impose one’s religion, his religion, on everyone, whether they agree or not. It is absurd. I have never seen a law that requires a woman to have an abortion. We now have, in the name of religious freedom, a law which denies a woman the right to make her own decisions about her own medical care.

With their opinion in Dobbs, The Court’s Catholic majority has established their religious views as the official dicta of the state. Try wrapping your First Amendment around that one.

And there is more to come.

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As expected, the Republican Supreme Court overturned Roe v. Wade, and for the first time in history took away a right the American people believed they had. The vote in the case, Dobbs v. Jackson Women’s Health Organization was six to three. The case challenged a Mississippi law that in effect changed the deadline for getting an abortion to 15 weeks. The standard set previously by decisions in Roe and Planned Parenthood v. Casey was 23 weeks.

The six voting to uphold the Mississippi law were the Republican appointees to the Court. Five of the six, Chief Justice John Roberts not going along, decided to go further than Mississippi asked. Ignoring the tradition of keeping their ruling as narrow as possible, the majority of five decided in addition to upholding the Mississippi law they would rule that the entire doctrine in Roe and Casey should be overturned as improperly decided in 1973. That strips American women of their right to control their own bodies and determine the course of their own health care.

The majority opinion, written by Justice Samuel Alito, did not deviate much from Alito’s original draft, circulated weeks ago in a dramatic leak from the Court. It is clear Alito relished his assignment, writing, “Roe was egregiously wrong from the start,” adding, the reasoning in Roe “was exceptionally weak.” The key points:

• The Constitution does not confer a right to abortion.
• Roe and Casey are overruled.
• The authority to regulate abortion is returned to the people and their elected representatives.

There is a lot to unpack here so let’s get on with it. First, there is no surprise. Decades ago, Republicans decided Evangelical Christians were an essential part of their base. They have been pandering to them ever since. This is the one issue at the top of the Evangelical’s wish list, and they are thrilled Roe has been overturned.

Senator Republican leader Mitch McConnell has made overturning Roe his life’s crusade. He calls the Dobbs decision, “courageous and correct.” McConnell, aided and abetted in the last chapter of the saga by Donald Trump, who praised Dobbs, got three right wing conservatives on the bench during Trump’s one and only, so far, term. He first deprived President Barack Obama of a nominee by refusing, for nearly a year, the longest delay in history, to consider Merrick Garland, Obama’s nominee to succeed Anton Scalia.

McConnell then hypocritically rammed through the Senate the nomination of Amy Coney Barrett, nominated by Trump to succeed Justice Ruth Bader Ginsburg just days before the 2020 election. While Democrats dicker and negotiate amongst themselves, Republicans believe the end justifies the means. They don’t care how hypocritical their position is or who they hurt. And they win.

If you think the Dobbs decision is correct. Then you can go ahead and celebrate. This column is for those who do not. If you want to assign blame, start by looking in the mirror. Every single voter who just couldn’t bring themselves to cast a ballot for Hillary Clinton in 2016 is to blame. You voted for a monster, or at least, by sitting on the sidelines, allowed a monster to occupy the Oval Office. We are still fighting the destruction Trump left in his wake.

And if you don’t think the Republicans appealed to those with racist motives, watch first-term Republican Representative Mary Miller of east-central Illinois thank Trump for “the historic victory for white life in the Supreme Court yesterday.” Later, a campaign aide said she meant to say, “right to life,” but misspoke. Just days after taking office in January 2021, Miller was facing calls for her resignation after she cited Adolf Hitler in a speech to a conservative women’s group in referring to the political indoctrination of youths.

You have to put some blame on the notorious Ginsburg herself. She should have resigned, giving a Democrat the opportunity to name her successor. It must be very painful for a justice of the Supreme Court to have to consider such things. But that is where we are today. Justice Stephen Breyer, who joined in the Dobbs dissent and wrote the dissent in the New York gun law case, has resigned effective at the almost upon us end of term.

Breyer will be succeeded by Ketanji Brown Jackson, a judge on the U.S. Court of Appeals for the D.C. Circuit. Breyer is in good health, but the 83-year-old resigned now rather than having to retire due to health reasons after the 2022 election, when the Democrats may well lose control of the Senate. For that Breyer is a hero. Ginzburg, who died at the age of eighty-seven while still on the bench, was a multiple cancer survivor who was obviously in poor health. She resisted many calls to step down. Her death allowed the conservative Republicans to gain their sixth seat and change the balance of the court, dooming Roe.

A special shout out in the blame game goes to Joe Manchin, the Senator from West Virginia who runs as a Democrat, votes as a Republican and in general acts as though he is the most important person in the country. Manchin has acted repeatedly since the start of President Joe Biden’s term in office to block the progressive legislation Biden promised and the American people, by a margin of more than seven million votes, said they wanted. In 2018, the last time he ran for election, Manchin won 290,510 votes. Only 586,034 people voted in the whole damn state of West Virginia.

Manchin was one of only three Democrats to vote to confirm Justice Neil Gorsuch, who stole Garland’s seat and the only Democrat who voted to confirm the incompetent drunk Brett Kavanaugh. Both voted to overturn Roe after testifying that they believed the case was settled legal precedent during their confirmation hearings.

Manchin tweeted he is “deeply disappointed” in the Court’s decision:

“I trusted Justice Gorsuch and Justice Kavanaugh when they testified under oath that they also believed Roe v. Wade was settled legal precedent and I am alarmed they chose to reject the stability the ruling has provided for two generations of Americans.”

While Manchin now says he would support legislation to codify the rights guaranteed by Roe into law, he voted last month against the Women’s Health Protection Act, which would have enshrined abortion protections into federal law, arguing the bill would have gone too far. You can get whiplash following Manchin around Washington.

But when it comes to mealy-mouthed wishy-washy oratory it is hard to beat the Senator from Maine, Susan Collins. The self-proclaimed moderate Republican, who always seems to vote the hard right line, is also upset. She also voted to confirm Trumps’s right-wing judges proclaiming to all who would listen, which means about every television camera in Washington, that she had gotten their support for a women’s right to choose.

Collins is in hiding someplace but her office has issued a statement on the Dobbs decision:

“The Supreme Court has abandoned a fifty-year precedent at a time that the country is desperate for stability. This ill-considered action will further divide the country at a moment when, more than ever in modern times, we need the Court to show both consistency and restraint. Throwing out a precedent overnight that the country has relied upon for half a century is not conservative. It is a sudden and radical jolt to the country that will lead to political chaos, anger, and a further loss of confidence in our government.

“This decision is inconsistent with what Justices Gorsuch and Kavanaugh said in their testimony and their meetings with me, where they both were insistent on the importance of supporting long-standing precedents that the country has relied upon.”

Fool me once, shame on me. Fool me over and over again, maybe I’d better admit that I’m the fool. When will the people of Maine stop sending us Senator Collins?

To be continued….

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