Originalism, the Criminal Legal System, and the Overturning of Roe v. Wade

“Fear and anger can make us vindictive and abusive, unjust and unfair, until we all suffer from the absence of mercy and we condemn ourselves as much as we victimize others.” Bryan Stevenson, Just Mercy

“Closing our eyes to the suffering today’s decision will impose will not make that suffering disappear.” The Dissent by Justices Sotomayor, Kagan, and Breyer in Dobbs v. Jackson Women’s Health

Dear Readers,

This past week, I had planned to send out a newsletter about Chesa Boudin’s (the former progressive district attorney of San Francisco) recall election loss and the dangerous mainstream media narrative that both enabled the result and perpetuates misinformation about crime and the criminal legal system. I will send it out soon.

Today, I need to address the U.S. Supreme Court’s overruling of Roe v. Wade in Dobbs v. Jackson Women’s Health.¹ In the next two editions, I will be sharing a long-form essay I wrote in the spring of 2021 formatted as a letter. Even though this edition and the two upcoming editions are, in my mind, one long essay, I felt it was too long of a piece to send out at once.

So, here’s the first of three.

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The way in which SCOTUS overturned Roe, using a racist, colonialist, misogynist judicial philosophy called originalism, has become the majority judicial philosophy of this Court.² Indeed, this Court completely discarded the explicit intent behind the 13th and 14th Amendments, and all of the Reconstruction Amendments, to codify and protect the liberty, even if imperfectly, including bodily autonomy and self-determination of formerly enslaved persons.³ That is also why there has since been a systematic, persistent, and effective push to ensure that those rights are never fully realized — of which Dobbs is but a single example.

What is happening in our country now is not out of character but very much in character. What is happening now with the overturning of Roe and the proliferation around the nation of abortion bans and laws criminalizing pregnant people⁴, parents, doctors, journalists, and even Uber drivers is not new.

Black women, Indigenous women, people of color, poor women, formerly and currently incarcerated women, mentally ill women, immigrant women, differently abled women, single mothers, LGBTQIA people, and all of the intersections therein have, since our country’s inception, been

forcibly impregnated,

forcibly sterilized,

forced to give birth,

forcibly removed from their children,

had their children forcibly removed,

forcibly separated from their children and families,

denied necessary medical care,

criminalized and incarcerated,

and many other cruel variations through the state-sanctioned or government-mandated actions of individuals, mobs, legislatures, and other systems actors.⁵

There is so much to say about the ways in which the Dobbs decision codified into law the subjugation of women, or differently stated, removed the constitutional rights that were already in paper-form only for so, so many women, people, and families in this country.

For an important and informative discussion about this, please, please listen to Dahlia Lithwick’s conversation with legal scholar Dorothy Roberts on Amicus podcast. Or, pick up any and all of Dorothy Roberts’s books, as well as any of the people listed in footnotes below.

This topic and the upcoming essays are relevant to everything I have written in this newsletter about the criminal legal system, the Constitution, and the many issues that intersect with both.⁶

Many states have been surveilling and criminalizing women, pregnant people, and parents for 150 years (and before), and they are in the process of expanding those dragnets at a very rapid pace.⁷

Additionally, many criminal laws, beginning with the Black Codes (which were designed to continue to enslave, punish, and subjugate Black people), alongside the practice of the forcible apprenticeship of Black children, were created to maintain control over the formation of and procreation in Black families (again, see the work of Dorothy Roberts).⁸

The forcible removal of Indigenous children from their homes and tribes was an act of war by the U.S. Government on Indigenous peoples.⁹ No Indigenous peoples require my validation of this process, I will briefly share that I saw the profound intergenerational impact of U.S. Indigenous child removal policies and the impact of boarding schools on Indigenous communities and families in my work as a public defender in Alaska, as well as the ways in which so-called child welfare and criminal laws continue to wreak havoc on Indigenous communities.

While this newsletter as a whole focuses on the criminal legal system, I cannot separate reproductive justice and racial justice from mass criminalization, mass incarceration, the criminal legal system, and the prison industrial complex — indeed they are inextricably entwined.

A moment of truth

I am a white, cis-gendered woman. Despite not being at all surprised by the Dobbs decision, I have been experiencing intense feelings of despair, sadness, and fury (to name but a few). It’s a visceral feeling to know that my personhood, agency, human dignity, and right to bodily autonomy are in question, left in the hands of gerrymandered state legislatures, elected prosecutors, and just about anyone else besides me. And I now live in a world where my sexual and reproductive choices will be scrutinized and surveilled in ways I have never before experienced, even if I had contemplated them for years. This past week, I have been spending time honoring and attending to those feelings.

At the same time, I must hold another truth, and tend to it as mindfully as I do my own. While the rights Dobbs stripped and the feelings elicited are relatively new to me, the lack of assumed personhood, the right to bodily autonomy, and the feelings connected to those things have been the daily lived experiences of so many women and people with uteruses in this country since its inception. Each of these groups have for centuries experienced and are experiencing attacks on their right to exist, their right to self-determination, their right to bodily autonomy, and their right to familial autonomy.

Additionally, I know that white women, like myself, have long been part of the government and societal apparatuses that have done and continue to do profound harm through the social control, criminalization, incarceration, surveillance, and forcible separation of Black, brown, Indigenous, and poor children, women, non-binary people, and families. All we have to do is listen to Amy Coney Barrett’s commentary during the Dobbs arguments, or Alito’s infamous footnote regarding adoption in Dobbs to see the ways in which white women have been complicit in ensuring that the 14th Amendment and Roe have never applied to many people in this country.¹⁰

As such, I am reminding myself to be aware of the violence what EbonyJanice calls “the White Urgency Response System” (more on that in the next edition).¹¹ Of course it is okay for white women to have feelings about what is happening right now. I would be genuinely worried about you if you did not. It is okay to feel them, to tend to them, to take a pause to mourn, grieve, scream.

At the same time, white, cis-gendered women, as we seek to be part of the struggle for collective liberation, we must be mindful of how we respond and react. Thoughtful, intentional actions done with humility and integrity are necessary now. Listening to and following the lead of those (see above paragraph) who have been fighting this fight for many, many years —most especially Black-led, Indigenous-led, and Latinx-led organizations—is necessary now. Learning how to practice these things in all that we do is necessary now.¹²

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Next week, part one of my 2021 essay.

Thank you for reading!

Respectfully submitted,

Amy

1. In future newsletters, I will address some of the other cases that gutted habeas law and make access to justice that much more difficult for those whose rights were violated by law enforcement.

2. As of now, justices serve a life appointment. Nothing in the Constitution requires that justices serve life sentences or that there be nine members of the Court. In other words, changing the makeup or terms of the Court are not prohibited by the Constitution.

Article III of the Constitution establishes the federal judiciary. Article III, Section I states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Although the Constitution establishes the Supreme Court, it permits Congress to decide how to organize it. Congress first exercised this power in the Judiciary Act of 1789. This Act created a Supreme Court with six justices. It also established the lower federal court system.

3. For more on this issue, a number of amici briefs filed in Dobbs are good reads. These are briefs by “friends of the court,” usually scholars, governments agents, and/or advocacy groups who have an interest in the outcome of the case and feel that they can offer arguments, context, or otherwise influence the outcome of the case.

BRIEF OF EQUAL PROTECTION CONSTITUTIONAL LAW SCHOLARS SERENA MAYERI, MELISSA MURRAY, AND REVA SIEGEL AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

BRIEF OF CONSTITUTIONAL ACCOUNTABILITY CENTER

BRIEF OF AMICI CURIAE REPRODUCTIVE JUSTICE SCHOLARS

BRIEF FOR CONSTITUTIONAL LAW SCHOLARS LEE C. BOLLINGER, ERWIN CHEMERINSKY, SHERRY F. COLB, MICHAEL C. DORF, DANIEL FARBER, JOANNA L. GROSSMAN, LEAH LITMAN, MARTHA MINOW, JANE S. SCHACTER, SUZANNA SHERRY, GEOFFREY R. STONE, DAVID A. STRAUSS, AND LAURENCE H. TRIBE

4. “Pregnant people” is an inclusive term, including women, transgender men, and nonbinary people.

5. See the work of Dorothy Roberts — all of it.

Peggy Cooper Davis, all of it — but as an example “The Reconstruction amendments matter when considering abortion rights,” Washington Post, available at: https://www.washingtonpost.com/outlook/2022/05/03/reconstruction-amendments-matter-when-considering-abortion-rights/

Melissa Murray: “Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade,” Harvard Law Review, available at: https://harvardlawreview.org/2021/04/race-ing-roe/; Intercepted Podcast episode, also with Melissa Murray: https://theintercept.com/2022/05/18/intercepted-roe-wade-abortion-supreme-court/

Khiara M. Bridges, The Poverty o f Privacy Rights

Rebecca Nagle’s This Land podcast, particularly season 2

Indian Country Times, “Announcing the first comprehensive study on child removal in Native communities,” available at: https://indiancountrytoday.com/the-press-pool/announcing-the-first-comprehensive-study-on-child-removal-in-native-communities?redir=1

Indeed, the origins of modern American medicine, including gynecology and obstetrics, as accepted by large academic institutions, began with men who experimented on enslaved Black women and Irish immigrant women without the intent to heal or the aid of pain medication. Early forms of the birth control pill were tested on Puerto Rican women. Black men and women diagnosed with syphilis were left untreated so doctors and researchers could see how to disease progressed to better treat white and wealthy patients. And this is just the medical field!

Today, some pregnant people who are incarcerated are forced to birth while shackled to their hospital beds and without access to pain medicines. Many women have been forced to birth in their jail or prison cells because the facility’s agents did not move quickly enough to get the women the hospital.

6. If you can make the time, it’s worth a read of all the decisions. If you need to ease in, start with the dissent: https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.

You can also read all of the amici briefs (some linked above) here: https://www.scotusblog.com/case-files/cases/dobbs-v-jackson-womens-health-organization/

For interesting discussions about the decision itself and the judicial philosophy:

Strict Scrutiny, The Ezra Klein Show, and Amicus are three podcasts that have had some good discussions about originalism.

Jordan Smith’s article, “In Overturning Roe, Radical Supreme Court Declares War On The 14th Amendment,” The Intercept, available at: https://theintercept.com/2022/06/24/roe-wade-overturned-supreme-court-14th-amendment/

7. National Association of Criminal Defense Lawyers report, “Abortion in America: How Legislative Overreach Is Turning Reproductive Rights into Criminal Wrongs,” available at: https://www.nacdl.org/getattachment/ce0899a0-3588-42d0-b351-23b9790f3bb8/abortion-in-america-how-legislative-overreach-is-turning-reproductive-rights-into-criminal-wrongs.pdf

Michelle Goldberg, “Opinion: America’s Post-Roe Chaos Is Here,” The New York Times (July 1, 2022), available at: https://www.nytimes.com/2022/07/01/opinion/post-roe-chaos.html

8. Also see Slavery By Another Name and all of the Equal Justice Initiative’s work.

9. Dr. Nick Estes, “The U.S. stole generations of Indigenous children to open the West,” High Country News, available at: https://www.hcn.org/issues/51.17/indigenous-affairs-the-us-stole-generations-of-indigenous-children-to-open-the-west

10. There is so much to say here. Again, I urge you to listen to the resources in the footnotes above.

For more on Amy Coney Barrett’s comments in Dobbs arguments, see Slate’s Susan Mathews article: https://slate.com/news-and-politics/2021/12/amy-coney-barrett-abortion-adoption-comments.html. She also did an in-depth series on the history of Roe in the podcast Slow Burn.

About Alito’s footnote, here is Dahlia Lithwick’s article, also in Slate, https://slate.com/news-and-politics/2022/05/the-alarming-implications-of-alitos-domestic-supply-of-infants-footnote.html

11. Here is a good discussion between EbonyJanice and Thea Monyee (don’t be thrown by the website — the conversation is excellent): https://shopcuup.com/blogs/bodytalk/sustaining-joy-in-anti-racism-work-a-conversation-with-ebonyjanice-moore-thea-monyee

12. Again, see the article in FN 11.