June 30th, 2022

Beyond Abortion Rights

Why the Impact of the Supreme Court Decision May Be Deeper and Broader Than You Think

This is not my usual law firm blog post.  I usually keep my personal beliefs about state and national affairs at arms-length from what I post on behalf of my law firm.

But I believe that these kinds of personal rules do not exist to guarantee they are never broken- they exist so that we are intentional about crossing a line, and only do so if it is important and the right thing to do.

And right now I believe that breaking this rule is both important and the right thing to do.

So that I don’t bury the lead, and lose you in a deep dive into the recent Supreme Court decision overruling Roe v. Wade, here is why you need to keep reading: unless you are one of the surprisingly few people who are not currently protected by federal laws on a wide range of matters including discrimination and wage and hour laws, you should be at least as concerned about what comes next as anyone else.

This is Not Just About Abortion Rights

A wise client once told me- if you shine a penlight on all of the specific things, you will get a distorted view of reality.  Some may help and some may hurt your cause, but you have to turn on the overhead light to really understand the story.

With the penlight focused on reproductive rights alone, there is plenty to be alarmed about.  I am deeply worried about women and their health and ability to engage as equal citizens of this country, and what actually awaits unplanned children in states that do not allow choice.  You may be worried about the same thing.  On the other hand, you may be deeply worried about the lives of unborn children and feel there is a profound moral imperative at play here.  I get that.  

But that is not the overhead light.  I hope you will keep reading, wherever you land on the question of abortion.
Let’s move to a flashlight instead of a penlight- still not the overhead light, but one which shows a little more of the picture.  In this beam of light are the statements in Justice Thomas’ concurring opinion, specifically inviting the Court to overrule precedent protecting the right to use birth control and same sex marriage.  Yes, he really said that.  Specifically: 

“For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [birth control], Lawrence [private, consensual sexual decisions], and Obergefell [same sex marriage equality]. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.” (emphasis added).

It was not subtle.  Justice Thomas does not mention the Loving decision (declaring state bans on interracial marriage unconstitutional) anywhere in his concurring opinion- perhaps that is a bridge too far even for him.  However, the analytic approach he champions here would put Loving squarely in the Court’s sights as well. This alone means this decision should be considered through a lens broader than only the abortion question.

1868 May Always be With Us

But let’s say you are neither a woman of childbearing age, a member of the LGBTQ+ community, or in an interracial marriage.  Let’s grab a slightly larger flashlight- the big, boxy kind.

At its analytical bottom, the Supreme Court’s decision overturning Roe v. Wade rests on the idea that our 14th Amendment jurisprudence- specifically, the judiciary’s authority to recognize rights not specifically set forth in the Constitution- should be guided by whether the claimed right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty.”  In its analysis, the Court relied extensively on what was “deeply rooted in our history and tradition” as of the passage of the 14th Amendment in 1868.

Please think about that for a minute.  What was deeply rooted in our tradition in 1868?  We had abolished slavery- surely of critical importance in the moment and beyond to those who were the victims of it, but by most measures of our current day values that is setting the bar pretty low. 

Other than that, racism, sexism, disregard for people without economic status, and other forms of bigotry were very much part of our culture and “deeply rooted” traditions.  As of 1968 the right of Black Americans to vote was still not enumerated in the Constitution, and the right of women to vote would not be so enumerated until 1920.  What this alone means for how the Court will view equal protection issues going forward is troubling.

Some Historical Context for Why We Are Worried

Now it is time for the overhead light.  The “double tap” of this decision is not only the reversion to 150 years ago for the final authority on what is a fundamental right, but also the near complete retreat from the doctrine of stare decisis, and a willingness that we have rarely seen to take a 180 degree turn from established Supreme Court precedent.
Together, these two things create a threat that you need to understand.

We have basically three levels of law in our country:

1. State laws, which can vary widely from state to state;
2. Federal laws enacted by Congress, which apply equally to all states, but have to be within the federal government’s constitutional authority to regulate; and
3. Constitutional law, which can override both state laws and Congressional enactments, as interpreted by the Supreme Court.

Constitutional law- specifically equal protection- does not actually apply to private employment.  In that realm, where the vast majority of employees work, we have only state law and federal statutes to look to.

With respect to discrimination, the national baseline on which we have relied in recent decades are federal statutes which apply in every state whether the state’s government wants them or not, prohibiting discrimination in private or public employment on the basis of sex, race, national origin, age, disability, and religion.

When the first of these laws, the Civil Rights Act, was passed in the late 1960’s, there was a legal fight about whether it was within the federal government’s authority to prohibit discrimination by private employers.  Ultimately it was upheld by the Supreme Court as an exercise of the powers under the Commerce Clause, on the theory that these actions could have an impact on interstate commerce.  This, like the analysis the current Court decries in Roe, was based on what some have plausibly argued is a stretch from what was specifically enumerated in the Constitution regarding federal authority.

This was also the rationale used by the Supreme Court thirty years earlier to uphold the federal government’s Fair Labor Standards Act, which established minimum wage and working conditions applicable to all of the states.

This is All of Us

The reason for this little history lesson is this: if we are to accept Justice Thomas’ invitation to strip the Constitution to its studs, the majority’s insistence that fundamental rights are only defined by our values 150 years ago, and the majority’s conclusion that precedent can be overturned so lightly, we may be left with a system in which we have overturned the Commerce Clause justification for federal action to create uniform rules that protect workers, and all of these protections which have been part of the fabric of our lives for multiple generations could vanish.

This would not just be two Americas, but potentially 50. 

You may be reading this and saying to yourself, well, maybe that’s not so bad.  Maybe that is elevating states’ rights and curbing federal government overreach.  Maybe that is what you believe in. 

I understand.  This debate is not new.  The one about organizing a nation around varying policies enacted by each of the states as a pure form of democracy versus having some level of authority applicable to the entire nation that acts as a backstop, safety net, or protector of certain rights.  Our founders debated this among themselves, vigorously and articulately.

But I am asking us, even for just a minute, to step away from that ideological divide and ask ourselves whether we value the world that we, our parents, and for most of us our grandparents, have lived their lives in.  Whether we value the fact that there is some set of things- rights, basic economic safety nets, some version of equality- that are not entirely optional based on what state you live in or how the political winds blow in that state.  Because this is what is at stake.

For me, I do value these things.  Personally and professionally.  I think about the thousands of people we have helped over the years with employment issues.  To name a few:

• The older workers cast aside less than ten years from retirement in favor of younger, less expensive employees. 
• The people with serious health conditions who are marginalized and pushed out of jobs without any attempt to accommodate them.
• The women who crash into the glass ceiling and lose their jobs, or endure sexual advances or innuendo in the workplace with no action by management to protect them. 
• The women who start families at the peak of their career and are never allowed to regain traction at work when they return (yes, there is irony to this one, under the circumstances).
• The people of color who face daunting assumptions and profiling, uneven discipline and termination, and also sometimes racial harassment, in the workplace.
• The workers of all races, genders, ages, and health status who have to fight to be paid the basic living wage they are currently owed under the law.

It is hard for me to imagine greeting any of these people in a world where I have no tools to help them, and where our laws have no answer for them.  We know what they went through, and what having a way to stand up for themselves meant to them.  It is hard for me to think about our country and explain why there should be at least these basic protections in some places and not others.

This is why the question of reproductive rights may not be the only critical implication of the recent Supreme Court decision, as important as that piece of it feels to so many of us right now.

I am not asking you to sign a petition, support a particular party or candidate, or really do anything affirmative. I am actually unsure what the best thing to do is right now.

I am just asking that you pay attention, because this decision and whatever comes after it may change way more than you understood, and affect you or your family in ways you had not considered.

And I am also reminding you that this is what we do- protecting people from discriminatory or oppressive conditions to the extent we are able under the law.  We will be here for you no matter what. 
 
Peace,
Emily
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