Welcome to 1868!
So, it has happened. There is no longer a constitutional right to terminate a pregnancy (for any reason), or a right to anything else that didn’t exist in 1868. We wanted to give a quick summary of the opinion for the non-lawyers and to share how this community can play a critical role in how this country moves forward from here. Spoiler: make loads of money.
On Friday, the Supreme Court issued a decision in Dobbs v. Jackson Women’s Health Organization. The decision, authored by Justice Alito and signed onto by Thomas, Gorsuch, ACB, and Brett, states that the Constitution does not grant women autonomy over their own bodies. For those of us who believe strongly that having the right to decide whether to terminate a pregnancy is necessary for women to participate equally and fully in this “democracy,” those of us who have had an abortion or know someone close to us who has (that’s pretty much everyone), and those of us who may in the future become pregnant (intentionally or not), this is excruciating. Women’s lives are already being put at risk by state laws that haven’t made clear whether there is an exception even when a woman’s life is at stake. Because who cares about women’s lives anyway?
What is equally horrifying, though, is the reasoning on which the majority based its decision. In short, Roe was based on the Due Process Clause of the Fourteenth Amendment, which guarantees that no state can “deprive any person of life, liberty, or property, without due process of law.” This is the same provision that supposedly provides all citizens equal protection under the laws of these United States. The Fourteenth Amendment was ratified in 1868. As we learned from the Supreme Court—for the first time in decades—apparently the only rights guaranteed by the Fourteenth Amendment are those that existed . . . in 1868 . . . before women had the right to vote.
You know what was legal in 1868? Criminalizing same-sex relationships. Outlawing interracial marriage. Outlawing contraception. Not allowing women the right to vote. Effectively denying men of color the right to vote (this was later addressed in part by the Fifteenth Amendment—which said you couldn’t use discriminatory voting on account of race—discriminating on gender was still fine). Marital rape. Preventing women from holding property. In short, in 1868 women were not considered full citizens. Justices Barrett, Kagan, and Sotomayor (and soon to be Justice Jackson) certainly would not be on the Court. Justice Thomas would not be married to Ginni Thomas. With those underpinnings the Court’s decision is entirely consistent.
The repercussions of this reasoning, however, are devastating. First, the Supreme Court has decreed that we are not full citizens. Not that we didn’t know it already, but great. Second, the Supreme Court has wiped away decades of law based on an entirely different reading of these provisions—a reading that assumed the Constitution was a “living and breathing” document that evolved as this country evolved. The idea that every right had to specifically be enumerated to be protected is absurd. The Constitution (with amendments) is probably shorter than even the shortest piece of federal legislation. Absurd. For all those people who made the (at the time, somewhat reasonable) argument that the Equal Rights Amendment was not necessary because we were already covered by the Equal Protection clause, joke’s on you! Decades of Supreme Court precedent could not be trusted. Finally, this same argument can be used to remove many, many other rights that the Court previously held to be guaranteed by the Constitution, but which were not guaranteed in 1868. I take no solace in the platitudes from Justice Kavanaugh or Alito. “Don’t worry, children, it’s just abortion we’re taking away because abortion is just different.” How is it different? I don’t see anything in the Constitution supporting that distinction. Although maybe next they’ll decide that, in 1868, fetuses were considered full citizens. Well, male fetuses.
It’s hard also not to see the deep, deep hypocrisy in their decisions in Dobbs and New York Rifle & Pistol Association v. Bruen, the case striking down New York State’s restrictions on concealed carry licenses. In 1791, when the Second Amendment (which grants only the right for there to be well-regulated militias to ensure the securities of the States—not individuals, but whatever) was ratified, we didn’t even have handguns, or bullets. The Framers were using muskets. So as long as we allow people to use muskets, we should be all set then, right?
We sometimes fall into this false lull that elected officials, or CEOs, or Supreme Court Justices are somehow going to be more self-aware, more empathetic, and more objective than the average person. But that is not the case. They are human beings with their own arrogance and own biases and own blinders to life experiences that are not their own. In this case, they are also just not that bright. This reasoning is ridiculous—the requirement of explicit enumeration of every right in the Constitution (could we rename it “reproductive liberty”? would that do the trick?) and the interpretation of guaranteed rights as being directly tied to the date of ratification. It’s so, so incredibly dumb.
Now, trying to breathe all of that out, what’s next? What can we do? And why are we even talking about this in a blogpost directed at entrepreneurs and asset managers? While it may seem bloodless and inadequate at the moment, one of the most powerful things you can do to shape how this country proceeds is this: make more money. Use that money to directly support the causes you believe in (here is where I donated), and then use some more to support candidates who are aligned with your values. Federal judges are appointed by elected officials, who (for now) are elected in a way that allows for the very heavy influence of financial resources. Note also that crying and making money are not mutually exclusive activities (as all of us already know). So go cry, feel low, complain, rage, be silent, hit some inanimate objects. Then go make some more money. If we want something different out of this country, we are going to have to make it happen ourselves.