June 25, 2022

High Court Time Travelers Reach Way Back to the Future: GOP Supremes Kill Roe.

by Hal Gershowitz

Comments Below

Five conservative Justices of the Supreme Court, three of whom were appointed by former President Trump, are like time travelers who have journeyed backward a half-century essentially to embrace laws that will now criminalize a woman’s right to discontinue an early, unwanted pregnancy, even one that has resulted from rape or incest or even a pregnancy in which a fetus has been determined, early in gestation, to be hopelessly and fatally impaired. While Chief Justice Roberts voted to uphold a Mississippi law that criminalizes abortion after fifteen weeks, he voted with the minority against overturning Roe.

In-vitro fertilization is now in question. Intrauterine devices (IUDs), and other forms of birth control such as the Plan B pill that inhibits a fertilized egg cell from attaching to a uterus are at risk as a result of the Supreme Court’s ruling. Presumably, young at-risk couples who today can, and do, screen pregnancies for serious genetic anomalies, may also be compromised because the option of terminating a fatally flawed pregnancy has, indeed, been compromised by the Supreme Court’s decision.

In the interest of full disclosure, I and my late first wife lost a young son to an awful, uniformly fatal, genetic degenerative disease that condemned our child to a frequently tortured life until his death at age three-and-a-half. Because of advances in genetic medicine and the ability to monitor subsequent pregnancies we were able to go on to have another child, a healthy son, and he and his wife have, in turn, produced our three wonderful grandsons. Similarly, our family is blessed with two extraordinary granddaughters, because my daughter was able to plan her pregnancies with the benefit of genetic screening. Genetic screening, which is routine today, may be in question because the decision to terminate a seriously diseased pregnancy is now in question.

There are today thousands of healthy children (and adults as well) who are here because their parents were able to avail themselves of advances in genetic medicine that allowed them, if necessary, to terminate fatally flawed pregnancies, while going on to have healthy pregnancies free of the horrible genetic anomalies for which they were at risk.  

New York gun-carry limitations were also gutted by Court.

Simultaneously, the six conservative Justices— Alito, Barrett, Gorsuch, Kavanaugh, Thomas, and Chief Justice Roberts, struck down a New York law that restricted the right to carry a concealed handgun to those who could claim a legitimate cause or need to carry such a weapon. Thus, the Supreme Court of the United States has codified the right of anyone at least twenty-one years of age to carry a concealed weapon pretty much anywhere they choose. While high-population-density, gun-free safe areas might be allowable, it is yet to be determined whether that would apply at universities and colleges with students aged twenty-one or older.

Allowing guns on campuses is not a new phenomenon. A U.S. News survey determined a short time ago, that 103 colleges and universities allow students to carry firearms in some capacity. Forty schools allow eligible students to possess concealed handguns across campus. The other schools have more restrictive policies

Ironically, this Supreme Court gun decision was handed down the same day both houses of Congress passed gun legislation following the Buffalo, New York, and the Uvalde, Texas massacres. The gun bill, which President Biden signed into law yesterday, provides a number of worthwhile measures such as the elimination of the so-called “boy-friend” domestic-violence loophole, some money for mental health assistance, and background checks for teenage semi-automatic rifle buyers. Unfortunately, the new law still gives a green light for teenagers, eighteen and nineteen-year-old kids, to purchase AR-15 and AK 17 semi-automatic rifles.

The conservative Supreme Court Justices are just getting started.

Simultaneously, the longest-serving of the Justices, Clarence Thomas, has called for Supreme Court reconsideration of three prior landmark Supreme Court decisions; Griswold v Connecticut, Lawrence v Texas, and Obergefell v Hodges. Griswold is a 1965 Supreme Court decision that established the right for married couples to buy and use contraceptives. Because of Griswold all couples, today, have the right to buy contraceptives in America. Because of the 2003 Lawrence decision consenting adults have the right to engage in same-sex intimacy, and Obergefell established the right in 2015 for same-sex couples to be married. In other words, Americans today have a reasonable right to privacy in their personal lives that may soon be under attack by the conservative Supremes.

Justice Thomas was unambiguous. “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents,” Thomas wrote.

“In future cases, we should follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away,” he continued. “Substantive due process conflicts with that textual command and has harmed our country in many ways. “Accordingly,” he added, “we should eliminate it (substantive due process) from our jurisprudence at the earliest opportunity.”

Substantive due process is a principle in United States constitutional law that allows courts to establish and protect certain fundamental rights from government interference, even if procedural protections are present or the rights are unenumerated (not specifically mentioned) elsewhere in the US Constitution.

Of course, the Ninth Amendment makes clear that not all rights are specifically enumerated in the constitution, such as a reasonable right to privacy. But who cares about that? Certainly not Justice Thomas.

Welcome back, way back, to a potentially dark future.

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20 responses to “High Court Time Travelers Reach Way Back to the Future: GOP Supremes Kill Roe.”

  1. susan duman says:

    Hal, you addressed it all in your usual dignified manner.

    • Ray Galante says:

      The very dangerous Supreme Court right wing slant is a abominable. Thomas and wifey are trouble for our democracy. Be on guard, folks. Huge voter turnout can’t erase Thomas.

  2. Jean Broday says:


  3. Rick Gordon says:

    I appreciate your thoughtful essay. I don’t believe it is the court’s role to make law but only to interpret established law. I believe that the 1970s court should have pushed back to Congress at that time and made them enact a ‘reasonable’ approach to abortion – ie., at least the first trimester and in cases of rape, incest, or danger to the woman. They did not do so – which has led to our 50 year argument – all unnecessary if addressed earlier.

  4. richard says:

    Clarence Thomas is a tainted associate justice of the SCOTUS. Anita Hill’s testimony should have sunk him back in October 1981. Clarence “is that a pubic hair in the drink” Thomas is himself a serial sexual harasser — four other women accuser were NOT permitted to testify when the Senate committee re-opened hearings on his candidacy due to reports of his inappropriate behavior. And to think that he took over from Thurgood Marshall, an upright man who gave us Brown v. Bd of Ed of Topeka in 1954– a case Clarence wants overturned, along with Plessy v. Ferguson. Is the Dredd Scott decision next, along with the ghost of Roger Taney? Frat boy Kavanaugh is another reprobate who sits as High Judge and Executioner. Gorsuch is a Manchurian candidate, and Coney Barrett is simply…well, simple and unqualified. I wonder if Scalia is doing pirouettes in his grave; this is NOT what the SCOTUS should look like, packed and stacked with political appointees of dubious character and background. I am disgusted.

    • Sadly, fervently agree. What do we do now? Can an amendment be written and passed by the people on term limits or overturn based on egregious -ness? Executive branch does not have much power over judiciary, right? What can we do while Thomas thinks we’re all more concerned with phones than the constitution?

      • Sheila says:

        I heard on the news yesterday that a couple of attorneys-general from impacted states will simply refuse to prosecute abortion cases or any cases that involve personal medical decisions. My guess is that many organizations will set up foundations that provide funding for women to cross state lines for legal abortions.

        There will probably be a huge black market in contraceptives.

        None of this addresses the same sex marriage issue or other critical privacy or personal choice issues— or the root of the problem— a Supreme Court that seems hellbent on taking our county back to the norms of a century ago.

        Could be that expansion of the SC is the only choice at this point.

  5. Peggy says:

    I have observed over the past 50 years a freer humanistic democracy. To a woman’s right to her own body choices or parents in distress where a complicated pregnancy can cause untold damage to the mother or the unborn child.
    —-when we were not obsessed by gun ownership
    —-when men or women became free to love and marry anyone of their choosing.
    We have made wonderful progress in the last 50 years. WE CANNOT GO BACKWARDS. and the LEGISLATION is the answer, not our SUPREME COURT.

  6. Pat says:

    If Clarence Thomas would like to revisit past laws, and wants to change them, he just needs to look inward. He would not be able to be married to the woman he is today. Hypocrisy to the nth degree

  7. Paul Silverstein says:

    Hal, although I greatly appreciate your thoughts which undoubtedly have to be influenced by the tragic death of your young child by a hereditary disease, I must caution you and your readers to read the full text of the Supreme Court judges who voted down Roe and consider these additional facts before making your final opinion. Jonathan Turley, the well-recognized legal scholar, spoke to this issue in a recent USA Today editorial stating that much of the coverage on this issue is misrepresented and false, including that it bans abortion in the United States. The decision returns the issue to the people and their elected representatives in the States to decide, rather than making it a protected right of the Constitution.
    There is absolutely nothing in these Justice’s opinion suggesting that this decision will in any way take away any other previously granted rights. The opinions of Justice Thomas are strictly his alone and in no way were they even suggested in this opinion by the court. To suggest otherwise is wrongheaded and inflammatory.
    Likewise, to suggest that there was a ruling about banning the use of contraceptives or home-administered self-managed abortion pills is false and blatantly fear-mongering and smacks of petty politicization.
    One further cautionary note. Mixing the Justices’ opinions about guns and abortion is totally wrongheaded and inflammatory and should be condemned rather than even commented upon.

    • Hal Gershowitz says:

      Response to Paul Silverstein: While I presume most readers understand that the Court’s decision consigns laws related to abortion decisions back to the various states, about half the states have already moved to prohibit or greatly restrict abortion rights. The unequal right to abortion that, as a result, now prevails will result in substantial hardship for millions of American women.
      To suggest, as Paul Silverstein does, that quoting Justice Thomas’s formal position explaining his vote is “wrongheaded and inflammatory,” is, well, wrong-headed and inflammatory.
      Furthermore, I did not suggest that there was a Supreme Court ruling banning the use of contraceptives or home-administered, self-administered abortion pills. I suggested that the Supreme Court ruling can place in jeopardy in-vitro fertilization, as well as the use of IUD’s and certain other birth control measures. Indeed, that has already happened in Oklahoma. In Oklahoma Gov. Kevin Stitt had already signed an abortion ban modeled after the one in Texas which banned abortions once a fetal heartbeat is detected. But since then, Oklahoma has also enacted additional legislation and signed into law House Bill 4327 which defines an unborn child as a “human fetus or embryo in any stage of gestation from fertilization until birth.” That could, indeed, eliminate in-vitro fertilization, in which fertilized, but disease-compromised eggs are discarded, and other birth-control measures that keep fertilized eggs from attaching to the wall of the uterus. From “fertilization until birth” sounds pretty unambiguous to me.
      Finally, to suggest that my column which focused on Friday’s announced Supreme Court decisions dealing with abortion and gun legislation was somehow “Mixing the Justices’ opinions about guns and abortion and totally wrongheaded and inflammatory and should be condemned rather than even commented upon, is, to me, a bit incongruous.
      Those were the measures on which the Court handed down judgments, and those were the measures on which I commented.
      There was nothing wrongheaded, inflammatory and worthy of condemnation about my commenting on both decisions, given that both decisions were handed down simultaneously.

      • Larry Whitlock says:

        I totally agree with your perception of the decision of the supreme Court on both issues; the abortion and gun issues. Anyone who is not looking at the relevance of both is not looking at the big picture.

    • Mr. Silverstein, maybe you don’t think a judges private remarks should be commented on. I believe if those remarks give you insight as to how his mind is working they are free game. If you have been listening to the remarks of many leaders of the Right to life movement next target is a national ban on abortion of any type including day after pills and many types of contraceptives. The final goal for them is abstinence being the only acceptable way to stop pregnancy. I am not sure how it works for a married couple where the wife’s life would be in danger if she got pregnant. My fear is that we now have a court that is so conservative that they do not wish to even be reasonable about a mother’s right to life.

    • Rey and Carolyn says:

      Thank you for your reasoned response. The earlier decision that gave us Roe was clearly flawed. Why does the left so often respond with destruction and violence when things don’t go their way?

  8. Alex James says:

    Hal, There is no more powerful description of the fact that elections matter, than your essay today. For all your readers who hated Hillary enough to abstain from voting in 2016, or who threw your vote to the other guy just for spite, congratulations! This is what your defiance has come to. Welcome to 1950s (and earlier) America for women and girls, who faced disfigurement, sterility or even death from quack doctors or coat hanger abortions. As Hal has mentioned, welcome to what Thomas has promised will be further infringement on personal choice and privacy. And now, welcome to the wild west, and a country in which walking into any public place will pose a danger of being shot up by a lunatic carrying a concealed weapon. New York, undoubtedly is just the start.

    So, the lesson to be learned here, is vote! This coming November and 2024 will be crucial turning points for our country. Unless there is an unmistakable, overwhelming majority in favor of a democratic republic, we will lose the promise of our Constitution and all the freedoms that America has represented.

  9. Chuck Anderson says:

    This essay may be the best essay you have ever penned. I hope the support shown you in today’s replies will be reflected in the upcoming election by voting out of office most if not all right wing candidates who would support the actions of this reactionary SOTUS ‘tribe of six’ who are taking an unwilling majority of voters back in time.

  10. Jed Somit says:

    You should also comment on the school voucher decision. It may make it impossible for local and state government to insist that contractors, as a requirement of receiving contracts from the entity, do not discriminate on the basis of race, gender, sex, religion, nationality, citizenship, etc., so long as the contractor claims the discrimination is part of its exercise of religion.

  11. Iyablans says:

    Hal, maybe “giving Trump a chance” was t such a good idea after all.

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