Democrats and others who actually value personal liberties spent a long time (decades) confident that Supreme Court precedents would continue to protect those hard won freedoms against repeated attempts to undermine them. We trusted the courts because, well, our view of government tends to lead us to trust the system. As the fight to overturn Roe v. Wade continued to escalate in the years before the Dobbs decision, I often heard like-minded folks wonder when those crazy folks would just give up and accept that they’d lost. It seemed like a reasonable position because polling or many years had shown continuing movement towards ever increasing support for a woman’s right to choose what happens to her own body. My response was always the same: They’re not going to give up and the fight isn’t just about abortion. I would inform my captive listeners that Roe would simply be the first valued precedent to face attack. It was chosen because the opponents of that decision felt it was the one where they had the most support and the most sympathetic argument. Abortion was not really the issue, I continued. Roe was just going to be the first step in a larger coordinated effort to reverse a line of cases that affirm a constitutional right to privacy. And now, elected Republicans feel comfortable acknowledging publicly that some of those other precedents are on their target list.
Before continuing, I want you to watch this short video. This was Mike Braun, now Governor of Indiana. For clarity’s sake, this interview was several years ago before he was governor and several months before the Dobbs decision was handed down. He has since attempted to walk back some of those statements but this is a bell that cannot be un-rung. What matters is that at this point, he and his ilk were confident enough in the outcome of the Dobbs case that they felt comfortable saying some of the rest of the plan out loud. By today’s media standards, this is an old interview. But apparently it is making the rounds again so I wanted to take the opportunity to address it because I have been warning about it for years (ask Keith, he’ll tell you).
If you’re not familiar with the cases mentioned here, Loving v. Virginia is the Supreme Court case that overturned state anti-miscegeny laws and Griswold v. Connecticut overturned state bans on the use of contraceptives among married couples. Other important related cases that will also be under attack include Obergefell v. Hodges (gay marriage) and Lawrence v. Texas (sodomy; overturning Lawrence would effectively make the act of being homosexual illegal in places as some states still have their anti-sodomy laws on the books). What all of these cases have in common, including Roe, is that they rest on the argument of a constitutional right to privacy which was first established by Griswold. This is what today’s Republicans (I refuse to call them conservatives because they are anything but) really want to eliminate. Like Braun in this clip, many of them will couch it language of ‘states rights’, always a favorite of those who want to control the actions or limit the freedoms of others. Some who imagine themselves to be constitutional ‘originalists’ or ‘textualists’ will say they oppose the decisions because the word ‘privacy’ appears nowhere in the Constitution. On this technicality, they are correct. Nonetheless, it is a hollow argument because it ignores that the 4th Amendment, both in its language and its history, is explicitly about privacy. The textualist argument also rings hollow because it entirely ignores the existence and implications of the 9th Amendment.
The larger point I wish to make is that the movement behind these efforts is not really about any of the specific issues. Sure, they don’t like abortion, gay marriage, miscegenation, etc., but what they really don’t like is the inability to dictate how other people live their private lives. (I’m not going to go into the obvious hypocrisy in this because that would really be a post unto itself.) They do not care that no one is forcing them to participate in any of these activities. They care about what other people do in the privacy of their own homes. They want to force others to live by their moral codes regardless of the fact that none of it impacts them in any way whatsoever. And they call those on the left snowflakes.
There are two lessons I hope to get through with this post. The first is about paying attention to language. Look for key words and phrases that give away the game. Nine times out of ten, a Republican politician or supporter talking about ‘states rights’ or ‘local control’, is probably really saying something about controlling the behavior of others. In the interview linked above, Braun admonished the ‘homogenization’ brought about by these cases. This was an intentional irony because what these precedents actually did was make society, and especially the communities where the newly overturned laws had previously been enforced, much less homogenous. That’s the part they don’t like. They want to go back to the good old days where everyone looked, loved, and prayed just like them.
The second lesson is about not forgetting the past as we look to make the future better. One of the great mistakes we made in the 21st century was assuming that Roe would hold. No matter how much the opposition told us they were going to continue to fight to have it overturned, we believed we’d already won the fight and so we didn’t do enough to protect this important right. And then, just like that, it was gone for many at least. We cannot make the same mistake regarding the other important rights protected by Supreme Court precedents based on a right to privacy. We cannot continue to assume that those battles are over. Braun and others have told us they are not finished with their attacks. We must work to enact local, state, and federal statutory protections for these important rights so that those who wish to control the lives of others do not have the ability to make second class citizens of those whose lifestyles they do not understand or approve of. We must remember that even as we try to make the future better for ourselves and our children, we must not forget to protect the victories of the generations before us who also fought for freedom. None of it is set in stone and so none of the battles ever truly end.