ATLANTA -- It’s funny how our brains work. Have you ever known that something bad was about to happen — I mean you knew it for a fact — but when it actually happened, you still felt a sense of shock or disappointment? It’s a confusing mental space to be in. You’re sitting there wondering why you feel the way that you feel. This thing was not a surprise. It was expected. You called this. So what gives?
It’s almost as if your mind was never completely willing to give up hope. Your conscious mind told you that you were 100% certain that this terrible event was coming. But your subconscious mind still set aside 0.1%; hoping against hope that your prediction would not become a reality. So when that foretold event arrives, the silent destruction of that 0.1% -- that infinitesimal hope reserve — still manages to generate measurable sorrow.
We knew this was coming. We learned on May 2 that the United States Supreme Court was going to throw away 50 years of legal precedent and strip American women of their constitutional right to an abortion. POLITICO leaked the opinion. Chief Justice John Roberts confirmed that, indeed, it was a working draft. Each and every person on either side of this issue knew that this decision was coming.
Still, when it was released, I felt a little incredulous. I felt a lot of disappointment. And more than that, I felt sorrow.
As a lawyer, I felt sorrow for the loss of respect for the institution of the United States Supreme Court that this decision will generate. I felt sorrow for the loss of respect for the role of the judiciary in our government. Most importantly, I felt sorrow for the inevitable resulting loss of respect for the law.
We lawyers, and judges in particular, often frame the law as something separate and distinct from ourselves. We speak of the law as if it is not shaped, molded, and bended by our own personal belief systems, frames of reference, and end goals. We assert to our fellow citizens that the law is simply a set of rules to be applied to a set of facts. And that is the role of judges, to apply rules to the facts.
But this Dobbs decision reminds some, and enlightens others, to the fact that the law does not really exist outside of ourselves. Yes, it is a set of rules, but those “rules” do not exist in a vacuum. The “rules” are just words that judges interpret. And a judge’s personal experiences, closely held beliefs, conscious and unconscious biases, prejudices, and desires all play a role in that process of interpretation.
True, judges are not politicians. But that does not mean that they are free from the influence of their own politics. This confluence of personal politics and the law reveals itself when one judge’s “established precedent” is another judge’s “wrongly decided” law which does not require deference. And what follows from that revelation is a public which cares less about what the law says and more about who the judge is.
As an American, I felt sorrow for what this decision will do to our country. “Divided” is a word often cited in conversations surrounding the current state of the United States. There is truth to that diagnosis, but I’m not sure there ever was a time when this country wasn’t divided. I must have missed that chapter in history class.
When the colonists “united” against the British and began the American Revolution, some of them — called “Tories” or “Loyalists” — supported the British cause. Is that not division? When the Framers declared that “all men are created equal,” 40% of the population of the Southern colonies were living in chains. Is that not division? Roughly a century later, 2.5% of the American population died in a war over the constitutional right of Southern slaveholders to own people who looked like me. Is that not division? In 1900, roughly half of the country’s population (women) were organizing, petitioning, and picketing for the right to vote. Is that not division?
When this country “united” around entering World War II after the bombing of Pearl Harbor, approximately 120,000 Japanese Americans were forced to go to internment camps, and Jim Crow laws all over the country legalized racial segregation. Is that not division? When this country “united” after the destruction of the World Trade Center on 9/11, Muslim Americans all over the nation were subjected to increased and unwarranted persecution and hate. Is that not division?
America, since before its inception, has been forged in the fires of division. It has always been “divided” in the sense that, depending upon who you are, what you look like, where you live, and who you know, the version of America that you see and experience is vastly different. That is part of what makes this country so great. It is also part of what makes this country so frustrating.
A diversity of experiences is beneficial only when we acknowledge and honor those differences. Doing so can provide us with a uniquely American strength. But far too often in the American story, we do so only when forced, either by a spectacle of devastation and bloodshed which causes us to question our very survival, or by an unyielding moral movement with the patience to last generations.
The Dobbs decision, while arguably the product of a patient and unyielding “moral” movement, does not compel us to acknowledge and honor our differences as fellow Americans. Instead, on an issue with equally passionate and opposing opinions, it chooses to honor one opinion, and refuses to acknowledge the other. Said another way, this decision in no way serves to bring us together. It only serves to tear us further apart.
I will concede that such a lofty ideal arguably has no place in the interpretation of the law. However, as I noted earlier, the magic is gone. We have peeked behind the curtain. The public now knows that the law can, and often is, shaped by end goals. What better personal politics is there for a judge to have — a judge who is a public servant, mind you — than a desire to inspire unity rather than division with his or her interpretation of the law? I can think of no better one.
Lastly, as a man, I felt sorrow for what my gender has been, and still is, putting women through. Yes, Justice Amy Coney Barrett, a woman, endorsed this decision. But the endorsement does not mean that all or most American women endorsed this decision, as well. Remember that the two other women on the court, Justices Elena Kagan and Sonia Sotomayor, dissented to this decision.
Regardless, what struck me about the court’s legal analysis surrounding the constitutional right to abortion is its reliance on the lack of laws acknowledging such a right historically, when the practical reality is that women historically have had little to no involvement in the legislative process. It’s a bit of circular reasoning.
Said another way, the court held that there is no constitutional right to obtain an abortion because there is no history in this country of laws recognizing such a right. However, of course there would be no history of such laws in this country, as such laws would be rooted in the recognition of the fundamental agency and authority that women have over their own bodies; and sadly, such a recognition of this natural law becomes reflected in manmade law only when women are made a part of the lawmaking process. And as we all know, women have not been a part of that process over much of the history of this nation.
This court should know well what happens when women are brought into the decision-making process. Justice Sandra Day O’Connor was the decisive fifth vote in Planned Parenthood v. Casey, which struck down a Pennsylvania law which required a woman seeking an abortion to first notify her husband before undergoing the procedure. The late Justice Ruth Bader Ginsburg wrote the majority opinion in United States v. Virginia, where the court held that Virginia’s exclusion of women from the Virginia Military Institute violated the Equal Protection Clause of the 14th Amendment. When you let women in, as it has gone with men, their end goals will also influence the outcome of that process of interpretation, oftentimes resulting in the elevation of women’s issues.
As recently as 1980, just under 11% of state legislators were women. As of this year, they comprise 31%. Call me crazy, but I imagine that if, over the last century, 70% to 100% of state legislators were women, there would be a history of laws recognizing a woman’s right to choose whether or not she wants to carry a baby to term. I just think that kind of thing would have come up.
Thirty-seven percent of U.S. adults are rejoicing at the Dobbs decision. Per a Pew Research poll conducted in March of this year, that is the percentage of U.S. adults who think abortion should be illegal in all or most cases. I know they are all celebrating the preservation of the unborn child’s “right to life.” I see that position. I don’t agree, but I get it. They believe that lives have been saved.
I imagine that the remaining 63% of U.S. adults might be feeling what I felt: incredulousness, disappointment, and a whole lot of sorrow. To that 63%, I want to encourage you not to drown in that sorrow. As Dobbs shows, the law is subject to change. Rights can be taken away, but they can also be given back. Now it is your turn to show that 37% what an unyielding moral movement with patience really looks like.
I believe that God is on your side.
Eric Foster, a community member of the editorial board, is a columnist for The Plain Dealer and cleveland.com. Foster is a lawyer in private practice. The views expressed are his own.
To reach Eric Foster: ericfosterpd@gmail.com
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