On Dobbs v Jackson Women’s Health Organization

It has taken me a while to digest the Dobbs decision by the U.S. Supreme Court. With the judgment, the court overturned its previous decision in Roe v. Wade (1973), its most famous landmark case in recent history. And now the newly empowered conservative majority in the court seems dedicated to roll back all the gains and victories of all progressives and the civil liberties movement in the previous decades.

Although this is a very American matter, I am a bit concerned that the decision may mark also a shift in the way people think more broadly – perhaps even ‘globally’ – about where this whole freedom and civil liberties thing is going. So, let’s say something about it. For starters, I’ll recap some history.

The famous civil rights movement in the U.S. began in 1954 with the Supreme Court decision on Brown v. Board of Education of Topeka and concluded in 1968 with the Civil Rights Act in the wake of the assassination of Martin Luther King.

The roots of this movement were in the American civil war. To those not familiar with the background of that war, I’ll only give the brief summary: it really was fought over the question of slavery and the legislation relating to it. After the war, Lincoln’s wartime emancipation proclamation and the 13th Amendment (abolition of slavery) were brought into reality during a short period of reconstruction; however, barely some ten years after the war, individual States especially in the South began to drift back towards institutionalised segregation. The infamous ‘Jim Crow laws’ referred to “separate but equal” type of legislation in public spaces, like the bus where Rosa Parks sat on a seat reserved for whites (or the whole Apartheid regime in South Africa).

In the 1896 precedent of Plessy v. Ferguson, the Court infamously ascertained the constitutionality of such Jim Crow laws grounding segregation at the level of states. The justices essentially agreed that as long as it’s valid state law, public spaces could be allocated to different groups on separate basis. This was a difficult case for any liberals and progressives (and most decent people in general) to swallow – and here you can think of it as something of an opposite negative image of Roe v. Wade: an odious persistent hangover of an inhumane economic system of racial oppression, affirmed by the supreme court as constitutional, left for the responsibility of people to legislate against.

In 1954, the subject of the Brown case was the constitutionality of racial segregation in public schools (i.e. whether or not states could have whites-only public schools). In Brown, the precedent of Plessy was squarely overturned. Whatever the court may have thought in Plessy about a need to guarantee equality despite segregation, in Brown the Court overruled the Plessy fully on principle: “separate educational facilities are inherently unequal”, the Court found.

So racial segregation in schools and universities was deemed unconstitutional. The Brown decision is one of the most famous precedents, and it is currently accepted as stable law with no room for dispute.

Now, Roe v. Wade from 1973 fits well in the saga of civil rights and liberties; it saw the identification and vindication of every woman’s right to choose what happens to her body in case of pregnancy. It was a case where the Supreme Court found and identified a constitutional right to abortion. The right to abortion was not written into the text of the constitution expressly, of course, but rather the choice of abortion fell under the field of privacy, which in turn was protected by the rights to due process enshrined in the fourteenth amendment.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

14th amendment, the legal basis of Roe v. Wade (1973)

So the right to abortion was laid out by the Supreme Court (not the legislator), by deriving it from privacy through due process in the constitution. And this is what the American conservatives ever since have been complaining about: according to them, in recognising women’s sovereignty over their bodies, the court stepped on the toes of the democratic lawmaking process in individual states. Today, in Dobbs – which states in no uncertain terms the possibility of going far beyond this particular case to overturn other decisions protecting the vulnerable – these conservatives see a correction from judicial activism “back” to the democratic lawmaking process. A shift away from a national dependency on the 9-member panel of judges in critical questions, back to the democratic legislature. The bone is thrown back to the people. You elect your legislatures; your elected legislatures make your laws. Hence you make the laws.

And there is the rub. It may come as a shock to some, but the American lawmaking system has been fundamentally dysfunctional for decades. Genuine political lawmaking has been replaced by presidential action and debate before the supreme court. The Congress is notoriously paralysed and discredited in the public eye: a system where bipolar partisanship comes first, and where vested interests are lobbied to a political class utterly isolated from the reality of their constituents. Expectations of any deliberated, patient, constructive, progressive legislation are very slim. It is not a coincidence that the progressives in the United States have so heavily relied on the Supreme Court over the last seven decades.

I admit that am less familiar with the democratic health of the State level legislatures. In the story of the rights to abortion, state legislatures come across often as villains. Because of this narrow perspective, such an image is likely be distorted. How much, though, remains to be seen. But there seems to be little choice but to go and see.

Therefore, dear Americans, let’s see some democracy now. Show us what you can do. Especially you, ladies, it’s time to exercise your 19th amendment rights to get this done right. Show us what you can vote, how you can organise yourselves, overturn the politics of the giant douche and the turd sandwich. Show us complacent Nordics and decadent Europeans how to do it. Now is your chance. The world is awaiting. Because having women deprived of reproductive control and family planning, forcing them to desperate solutions, and causing them mental and bodily harm – especially and in particular when they happen to be non-White – will simply not do for a country that pretends to lead the so-called free world.

Let me conclude by stating the obvious: I would not have wanted them to strike down Roe v. Wade. The matter of the case – women’s right to abortion – should be a matter of civilised healthcare to begin with. In the 21st century, women should have proper reproductive rights, including a genuine choice of whether or not to abort a child. It is not a simple or pretty question, but trust me, when it is your turn, you’ll appreciate to know you had a choice.

In the United States, this principle was from 1973 to 2022 protected by the Supreme Court. That Court saw women’s sovereignty over their bodies as deserving steadfast protection when the democratic decision-making process had collapsed into perpetual dysfunction. Now that protection has been withdrawn. Right now it seems that the one truly sustainable way forward is the reclamation of democracy in that country. Proper public discussion, abandonment of the two-party system, end of the filibuster blackmail, genuine legislative processes at state and federal level – and through this a democratic reaffirmation of women’s right to abortion regardless of their wealth, background, or the colour of their skin.

And maybe one day, a new 28th Amendment to the U.S. Constitution, spelling out the rights of women in no uncertain terms.




Ville Kari