'This will be the first reversal': Legal scholar warns more 'fundamental rights' will follow if Roe is overturned
On Wednesday, December 1, 2021, the U.S. Supreme Court began hearing oral arguments in Dobbs v. Jackson Women’s Health Organization — which is examining the constitutionality of a highly restrictive Mississippi abortion law. Legal expert Laurence Tribe analyzed those arguments during a Wednesday-night appearance on Lawrence O’Donnell’s MSNBC show, saying that the High Court appears likely to uphold the Mississippi law and overturn or severely scale back Roe v. Wade. And Tribe warned that if Roe goes down, other civil liberties are sure to follow.
O’Donnell noted that in Dobbs, the Supreme Court is “hearing an argument…. about taking a right away from people” — to which Tribe responded, “You’re right, Lawrence. If the Supreme Court does what I think it is absolutely certain now that it will do — and that is, whether it calls it overruling Roe v. Wade or not — getting rid of the fundamental right to abortion until viability. When it does that, it will be the first time in our nation’s history that we have turned things backwards in terms of rights.”
Tribe continued, “All along, we have expanded rights. Brown v. Board expanded rights beyond what Plessy had said. Lawrence v. Texas expanded rights for LGBT people. We’ve expanded. But if we do now what the Court is poised to do, it will be the first turnaround. We will have lost our virginity basically. And once we do it this time, it’s going to be a lot easier to do it next time with contraception, with same-sex marriage, with gun rights, for example. Rights that conservatives like, rights that liberals like. It’s always been a matter of expanding rights. This will be the first reversal of that trend.”
Many right-wing critics of Roe v. Wade, over the years, have argued that Roe is an attack on states’ rights —that there shouldn’t be a national standard when it comes to the legality or illegality of abortion, and that while legal abortion may be right for California, New York State or Massachusetts, it isn’t necessarily right for Alabama, Louisiana or Arkansas. But Tribe doesn’t buy into that type of argument. And he pointed out that before the Civil War during the 19th century, some people argued that there shouldn’t be a national standard on the legality or illegality of slavery.
Similarly, during the 1950s, some Jim Crow apologists and critics of Dr. Martin Luther King Jr. argued that while Jim Crow laws weren’t right for New York City, it was wrong to impose that standard on Mississippi or Alabama.
On O’Donnell’s show, Tribe also pointed out what Justice Sonia Sotomayor had to say during the oral arguments on December 1. Sotomayor warned that if Roe is overturned and rejects its 48-year-old precedent, it will seriously damage the reputation and credibility of the High Court — which will be viewed as having become overly politicized.
Tribe told O’Donnell, “As important as the institutional legitimacy of the Court is — and I think it’s important — even more important, even more fundamental is the question: Will we have a legitimate form of law if we have a nation in which half the citizens have less than full rights? We men have the right to control our bodies…. But there will be one group of people who are subject to a very different regime, who will be told that their bodies can be scripted to remain involuntarily pregnant.”
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