Dobbs v. Jackson and Juliana v. United States: “Innumerable Human Lives”
By Julia Olson and Andrea Rodgers*
There’s a maritime myth in our culture, made romantic by the Titanic and other disasters, that men will “save the women and children” first. The arguments before the Supreme Court in Dobbs v. Jackson last week strongly signaled that a number of our highest judges in the nation (mostly men) want to “save the unborn fetuses and religious-conservative state interests” first. Women and living children are not faring as well.
Justice Thomas explained his thinking that because the U.S. Constitution was silent as to pregnancy and abortion, such silence lays a blank slate at state legislatures’ doorsteps, giving a free pass for any political majority of voters in gerrymandered districts to dictate what a woman may or may not do with her reproductive organs and rights. Justice Thomas forgot to mention that it is not just our bodies the Constitution is silent about. It is entirely silent as to women at all-body, mind, or spirit. He also ignored that, at least since the indefatigable advocacy of the late Justice Ruth Bader Ginsburg, women—and our rights—have been interpreted as implicit in the Constitution. And no, Justice Kavanaugh, the Constitution is not “neutral” about women’s rights. Since about the time these lawyers were born, the days were waning when the Constitution was only for men; we attended law school when, for the first time in history, female students began to equal the number of male students. We came of age in an era where we had reproductive freedom and it was possible for us as women to expect equal treatment under the laws once written only for men. Would this newly-comprised Roberts Court now contemplate leaving to the vote of state legislatures our rights to be admitted to the practice of law or to not be discriminated against in other respects as women, because of our Constitution’s “silence” or “neutrality”? For us, Supreme Court precedent, yes stare decisis, is loud and clear: Women, and the privacy and integrity of our bodies and our equal status under law, are written in the silent ink of the Constitution through the fifth and fourteenth amendments. In this 21st century, that even a single Supreme Court Justice would openly suggest they could ignore fifty years of precedent and once again write us out of that ink is deeply troubling to us as mothers of daughters and as lawyers dedicated to upholding the rule of law and defending the Constitution. It is an assault on our very lives and freedom.
Throughout oral argument, several Justices and the State callously equated Roe v. Wade to Plessy v. Ferguson, suggesting that if they stripped away women’s liberty rights under Roe it would mirror Brown v. Board of Education’s undoing of the egregious error of Plessy. They could not be more wrong. Yes, Brown finally righted a long-standing egregious and racist wrong; that we agree upon. Importantly, Brown also protected the rights of living children. Brown looked at the health and well-being of children who were suffering at the hands of state institutions, endorsed by the vote of racist political majorities. Brown took the decision to segregate Black and white children in education out of the hands of those racist political majorities of state governments, like Mississippi, and shielded children with the protection of the Constitution.
Today, states, including Mississippi, are waging another type of suffering on our children by perpetuating the use of polluting fossil fuels that are destroying our climate system, killing children, damaging their lungs and other vital organs, and harming their mental health—a factor the Brown Court focused on when it protected children from state-sponsored segregation. The state-sponsored climate crisis is the single biggest threat to children today. It is also an increasing threat to pregnant women who wish to carry their unborn fetus to term and raise a healthy child. As with most societal injustices, the climate crisis harms children of color and pregnant Black mothers most. In Mississippi, as in other states, an increase in maternal heat exposure and air pollution increases risks of preterm birth, low birth weights, stillbirths and newborn stress. Infant mortality and children suffering a life of increased physical and mental hardships from climate change are real and already happening today.
Yet, when 21 young Americans, including 11 Black, Brown and Indigenous youth, went to court to challenge the U.S. federal government’s creation of a fossil fuel energy system that is creating an inhospitable nation prone to catastrophic heat, drought, fires, flooding, and disease, at least Justices Thomas and Gorsuch voted to prevent the children from having their trial and seeking a remedy that would protect their lives and liberties. In Juliana v. United States, the Chief Justice and a majority of the Court ultimately denied DOJ’s emergency stay request on the shadow docket, albeit too late for the children to keep their trial date. Many legal commentators assumed the shadow-decision signaled to the Ninth Circuit Court of Appeals that it should be the one to prematurely snatch the case from the District Court. Now, six years after their case was filed, these living children and newly young adults with ongoing physical and emotional injuries from their governments’ conduct still battle to even access justice and be heard on the merits of their constitutional claims. Their mothers, who chose to bear and birth those beautiful babies, stand beside them, many as guardians in their case, pleading for a future not filled with catastrophic death and destruction from the climate crisis.
Where is the Court when it comes to protecting the mothers who birthed these children with the hope and expectation they could lead long and healthy lives? Where is the Court when it comes to safeguarding these living children against the dangers knowingly waged by their governments? Where is the Court when it comes to protecting these young people who hope to one day safely bear and birth children and families of their own?
The Solicitor General of Mississippi closed his argument claiming that there would be “innumerable human lives” lost if women’s liberty rights over their own bodies and their reproductive choices were not eviscerated by the Court. General Scott Stewart should check his facts. Every day there are innumerable human lives lost, harmed, and threatened by state actions that perpetuate fossil fuel pollution and the climate crisis, including by his own state. Women and children are fighting for their lives and “our Posterity.” We are fighting for our homes, our health, our family autonomy, our culture, our religious freedom, and yes, the ability of generations to choose of their own free will to bear and birth children in a world not ravaged by climate crisis. It is not grandiose to say that these youth are fighting for constitutional democracy, this Republic, and innumerable lives to come.
The truth of the maritime myth is that the Titanic’s captain, Edward Smith, had to point his gun at many men who were trying to steal seats in the life rafts meant for women and children. Of course, not all of the men behaved that way, but some did. It remains to be seen what type of Court the Roberts Nine will turn out to be. Will they act to faithfully apply the Constitution to include women and children or will they prevent them from accessing the life boats?
For anyone who listened, the Dobbs v. Jackson oral argument made clear just how threatened the rule of law and our democratic values truly are, not only by politicians within state governments seeking to restrict the vote, but by some members of our Supreme Court who clearly know the importance of 50-year-old precedent that protects constitutional rights. As lawyers, as women, as mothers, as advocates for children’s rights, we could easily despair. So could our children, who—lacking the right to vote—have no political say in the matter. Yet we will never give up our rights, including our right to choose when and whether to have children and whether our children will be able to grow up on a healthy planet. We will continue to stand up for all children and our Posterity and we expect our Supreme Court justices to do the same.
While Justice Thomas can claim the rights of women and children aren’t in the express text of the Constitution, he cannot say the same of Posterity. Now more than ever, we need everyone—women, men, and non-binary people—to work every day to hold onto our fundamental human rights and those of our children. They are counting on us to protect them from state tyranny. With the tenor of this Roberts’ Court, it has a long way to go to demonstrate it will save the women or children at all, much less first. Time is running out to save the natural systems that every pregnant woman and every child depends upon for survival. Stripping away our rights has never been the answer to any hard question and that is not what the Court did in Brown v. Board. Putting living, breathing children’s health, safety, and long-term interests first, above all else, will always lead to the betterment of our nation and the endurance of our constitutional democracy.
The boat is sinking. What will our Justices do?
*Julia Olson and Andrea Rodgers are Chief Legal Counsel and Senior Litigation Attorney with the non-profit law firm Our Children’s Trust. They are counsel of record in Juliana v. United States.