I heard a few moments of oral arguments in Dobbs v. Jackson Women’s Health while they were underway. I didn’t, however, get the chance to dig into it until about a week later, when Michael Moore ran the full audio feed on his podcast, Rumble. You can also read the transcript posted on the Supreme Court’s web site, if you prefer.

Either way you access it, it’s pretty ugly, but that’s not surprising. The fact is, we’ve been seeing this slow-motion train wreck coming for decades, and many, many of us chose to do nothing to stop it. But before I get into that familiar diatribe, I want to comment briefly on some of what was said during these oral arguments – specifically, a few reactionary hot takes as analyzed by someone who is not a Con Law expert.

Being neutral on a speeding train

If you listen to the entire proceedings, you will hear Justice Kavanaugh dive into a discussion of precedent. Kavanaugh cited cases like Brown v. Board of Education as fodder for his argument that sometimes it’s appropriate to overturn decisions that are wrongly decided. Legal experts have pointed out that most if not all of his examples were cases that expanded rights, whereas overturning Roe would take rights away from Americans. But he also contended that the court should be “scrupulously neutral” on the question of abortion because, he claims, the Constitution is neutral on abortion.

Kavanaugh affects to consider Plessy v. Furguson as wrongly decided – fair enough. But wasn’t Plessy effectively the court’s way of saying that they were neutral on “separate but equal” Jim Crow laws? After all, the majority wasn’t forcing all states to adopt these laws. If a state wanted to do so, it was up to them. In light of that, what was Plessy, then, if not “scrupulous neutralism”? How can he describe this kind of neutralism as being a positive thing?

Fetishizing enumerated rights

Both Justice Thomas and Justice Kavanaugh appeared to agree with Mississippi’s Solicitor General that abortion was not a right explicitly laid out in our 18th Century constitution. If they mean the word does not appear in the text, they are correct. However, it seems more than unreasonable to expect that the only human rights we should honor must be spelled out in our founding documents.

For instance, is there anything in the Constitution about a right to breathe? How about walking across the street – is that buried somewhere in Article II? Reactionary Supreme Court Justices play this little game all the time. Now, I’m not even just an old country lawyer, but I’ll say this much. It seems to me that what happens under your skin should be your own damn business. That strikes me as the closest thing to a natural right as anything I’ve ever heard.

Ladies choice, please

I have a suggestion for the Justices. Your honors, take this as you will. If you are considering a decision that will relegate women to second-class citizenship, it seems only fair that the decision should be made by those amongst you who are best situated to understand the full ramifications. I’m speaking of the women currently seated on the Court. Let’s let them decide how to move forward on Dobbs v. Jackson Women’s Health. You boys just wait in the cloak room until they work it out.

Hey – if you don’t have a uterus, you should have a say in this. Simple as that.

luv u,

jp