Daily Archives: July 3, 2022

It sounds like the start of a bad knock-knock joke: A bed and breakfast owner and a federal agent run into each other at an inn on the northern border. But what happened next is far from humorous.

Robert Boule, the owner of Smugglers Inn on the Canadian-US border in Washington, sued a US Border Patrol agent for violating his Fourth Amendment right by entering his home and using excessive force against him. Boule alleged the border agent pushed him to the ground during a dispute and then retaliated by reporting him to the IRS after he complained to the agents supervisors.

The US Supreme Court ruled against Boule on June 8, holding that his case did not fall under the 1971 precedent Bivens v. Six Unknown Fed. Narcotics Agents. In its ruling, SCOTUS effectively concluded that federal courts no longer have the right to decide on border police liability, but instead should defer to Congress.

Without congressional action, federal agents may no longer be liable for their actions, no matter how violent. Why? The doctrine of qualified immunity for law enforcement.

As a former public defender and now executive director and co-founder of Partners for Justice, a nonprofit that works to help low-income Americans navigate the legal system by bolstering public defense resources, I have seen first hand the consequences of law enforcement behaving as if they are the law. A child assaulted by a school cop while the schools video surveillance mysteriously cut out. A young man having his face driven by a police officer into the street for carrying a screwdriver.

The police violence that we hear about in the news is occasionalthe police violence that communities of color endure every day is not. It is constant, lethal, and uniquely American.

In no other field are professionals shielded from the worst consequences of their occupational mishaps. If a doctor botches a procedure, they are liable for malpractice. If I, as a lawyer, fail to investigate my clients claims, I could lose my license and be subject to liability. But if police (and now federal agents) use excessive force, they are largely shielded from any public recourse.

Imagine the shock and outrage that would erupt if nurses killed 1,055 civilians in one yearthe number of civilians killed by law enforcement in the U.S. in 2020. Yetdespite the crescendo of voices arguing against qualified immunity after George Floyds murder in 2020our courts persist in creating a consequence-free zone for some of our nations most lethal professionals.

Law enforcement is no longer an emergency response mechanism, but more of an omnipresent, all-purpose force, summoned for everything from excessive noise to mental health crises to school misbehavior. This puts the public at much greater risk from the policewho are everywhere, doing everything, including things they are not trained (social work, mental health, etc.)

Unfortunately when brute force and imprisoning people in desolate locked spaces are the main tools for carrying out cops jobs, the outcome is (predictably) more harm.

The smartest pro-safety solution would be for legislatures to invest in communities needs that foster safety, such as housing, access to medical care or building out public defense as a broader resource to aid people whose lives are dismantled by our criminal system. But that doesnt mean we cant still push for lawmakers to take the most modest step in the right direction: ending qualified immunity.

The Boule decision isnt ideologically uniqueits just a depressing reminder of how expansive law enforcement immunity really is (plus a spotlight on the horror that is our Constitution-free border zone). The Supreme Court has continually kicked rulings on qualified immunity to the legislature, building precedents for protecting law enforcement at the expense of the American people (with a pair of such rulings just last year in City of Tahlequah v. Bond and Rivas-Villegas v. Cortesluna.)

In a world where Democrats control the Senate only on paper and fact-free crime hysteria is on the rise, its easy to feel SCOTUSs abandonment of the individual is the end of the road. But in fact, there may still be hope.

While we wait for Congress to break the Washington deadlock, there are other system actors who can hold police accountable in court and play important rolesprosecutors and public defenders.

Prosecutors can use do-not-call lists, which are lists of police officers to no longer call to testify in court because those officers arent credible witnesses. This disengages bad cops from courthouse power.

Meanwhile, public defenders can also help. They serve around 80% of accused people and stand as a last bulwark between ordinary people and law enforcement overreach. Public defenders also are often the only legal-system actors present and able to help at moments of peak crisis.

And some local leaders across the country are making strides, with tangible impacts. In Delaware County, Pa., for example, dynamic new leaders in the public defenders office identified the need for change, and by reimagining the role of their office, they have made it a community haven for holistic support, rather than just a space for legal counsel.

Unfortunately, public defender offices continue to be chronically underfunded at all levels of government. For example, the latest numbers show that California recently proposed budgeting 82% more resources to prosecutors than public defendersand this was in a progressive stronghold.

Until our elected officials realize that the shamelessness of American policing is a fertile source of common ground, those of us in the courthouse will have to do our best to repair the irreparable harm of American law enforcement.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Emily Galvin Almanza is the co-founder and executive director of nonprofit Partners for Justice. Previously, she worked as a public defender in California and New York.

Excerpt from:
Congress Needs to Fix Qualified ImmunityHere's Why - Bloomberg Law

Sarasota County Sheriff Kurt Hoffman doesnt want the public to know the identity of two deputies involved in the shooting of 65-year-old Jeremiah Evans and has gone to great lengths to keep their names, which are public information under Floridas Public Records Act, a secret.

Evans was shot dead on April 1 while two Sarasota sheriffs deputies served an eviction on him in the condo where hed been living the past eleven years. The State Attorneys Office determined that Evans, who is black, held a knife in a "threatening manner and "took steps toward the deputies when one of them opened fire.

Prosecutors cleared the deputies of wrongdoing, but the public still doesnt know who they are. Sheriff Hoffman claims their identities are shielded by Marsys Law, which was passed by voters in 2018 ostensibly to protect crime victims. The law makes no mention of law enforcement, but the Sarasota sheriffs office and other police agencies across the state have been using it to hide the identities of cops involved in fatal shootings based on the claim that they are crime victims themselves and shouldnt be subject to public scrutiny.

That practice obviously runs afoul of government transparency standards and has sparked a legal challenge involving the identity of two police officers in Tallahassee that is now before the Florida Supreme Court.

Hoffman, however, has gone a step further. When the Sarasota Herald Tribune received a State Attorneys Office report with the last names of the deputies left unredacted, the paper was taking steps to publish them. Thats when Sheriff Hoffman went to court and obtained an emergency injunction to block the newspaper from publishing the names.

This, according to numerous legal experts, is a clearly prohibited prior restraint of the press.

"Prior restraint is the government telling a publication they cannot publish information it has obtained lawfully, said Ed Birk, general counsel for the First Amendment Foundation, which is party to the Florida Supreme Case. "The U.S. Supreme Court has never upheld a prior restraint. Its unlawful. The newspaper came by the information lawfully. The mistake was made by the State Attorneys office. Its not the newspapers job to enforce the public records law.

Perhaps the best known case of prior restraint in history came with the publication of the Pentagon Papers in 1971. During that controversy, journalist Ben Bagdikian said, "The only way to assert the right to publish is to publish. Adhering to that adage, we at the Florida Center for Government Accountability are publishing the identity of one of the two deputies present at the time of the Evans shooting.

Her name is Stephanie Graham and shes a veteran of at least 18 years on the force. Sheriffs Office spokeswoman Kaitlyn Perez said in a press conference that a female deputy pulled the trigger, but FLCGA News hasnt been able to independently confirm whether it was Graham or the other deputy at the scene who fired the fatal shots.

Like the Sarasota Herald Tribune, FLCGA News came by Grahams identity in an entirely legal fashion, in this case old-fashioned digging through public documents.

The sheriffs office disclosed that the same deputies involved in the shooting had served eviction papers on Evans door on March 31, the day before he died. A simple look at the writ of possession served on that day shows it was signed by a deputy with the initials "SCG with badge number 1515. Further checks of similar publicly available writs conclusively show that Grahams badge number is indeed 1515.

While Grahams history with the agency isnt known (a so-far unfulfilled public records request has been made for Grahams IA jacket and personnel file), she was involved in a long and drawn-out federal civil suit involving a past use of force.

During a 2004 drug raid involving a package of ketamine, Graham was accused of using excessive force on a 63-year-old woman named Patsy Croom, who was visiting her sons home at the time and had no involvement in any criminal activity.

Croom, who suffered from acute rheumatoid arthritis and had undergone numerous surgeries due to the condition, was gardening in the front yard of the home in a one-piece bathing suit when Graham and a team of masked deputies in all black stormed the home with guns drawn.

When ordered to "hit the ground, Croom said she was getting down as fast as she could but suffered from arthritis. Thats when Graham pushed her to the ground, put her foot on her back, and held a pistol to her head, according to Croom. Graham held her in that position for roughly eight minutes, according to the lawsuit.

Croom suffered additional medical issues due to the rough treatment and in her lawsuit alleged a violation of her Fourth Amendment protection from unreasonable search and seizure. The suit was dismissed and the appellate court though "sympathetic to Crooms plight and frustration upheld the ruling.

While Graham doesnt appear to have a history of repeat incidents, a failure to disclose the identities of deputies involved in fatal shootings could serve to protect and enable a cop who does have chronic issues, said Birk.

"The result of keeping this information from public view is that bad conduct does not get corrected, he said. "The whole point is to correct and improve, not just condemn.

After a two-hour hearing on Tuesday, Circuit Judge Charles Williams is expected to rule within a week on whether or not to lift the injunction against the Sarasota Herald Tribune. The use of Marsys Law to protect the identity of police officers, meanwhile, is still waiting at the feet of the Supreme Court.

Interestingly, Sheriffs Mike Chitwood and Sheriff Bob Gualtieri, of Volusia and Pinellas counties, respectively, have filed motions to support releasing the names of police officers involved in deadly shootings.

"This disclosure of deputies names not only promotes transparency and accountability but helps to rebuild the eroding public trust in law enforcement, Chitwood wrote in his motion. "[The Volusia County Sheriffs Office] desires to continue disclosing the names of deputies who are involved in the use of deadly force while in the execution of their official duties in order to continue promoting transparency and accountability.

Birk echoed those words.

"In giving the authority to our law enforcement personnel to arrest and use deadly force, we ask for a lot in return, he said. "And that is to know what they are doing and subject their job to public scrutiny. Thats our terms.

This story was published in partnership with the Florida Center for Governmental Responsibility.

Read the original here:
Right to publish: Withheld identity of deputy involved in fatal shooting revealed - WUSF News

During the quarter-century year career on the Supreme Court, Justice Stephen Breyer constantly cultivated two judicial virtues now increasingly absent from the federal bench. The first is a careful, empirical cast of mind, constantly alive to the lived experience of litigants, institutions, and the world. The second is a humility about the limits of his own knowledge. These led him as a profound respect for other, more democratic bodies such as Congress, federal agencies. and state legislatures. Under their sway, Breyer vindicated Our Democratic Constitution as finely as anyone else to grace the high court bench.

Unlike the approaches favored by other Justices, Breyers brand of well-tempered empiricism forced him to be candid about what informed his judgment. It avoided simplistic fallaciespeddled hard under the originalist labelto the effect that constitutional law at the high court can avoid normative judgments: The text of the Constitution is too majestically general, and too capacious for it to be otherwise. By bringing to light the laws real justifications, and amplifying the space for democratic choice, his work embodied real judicial restraintand a real commitment to the founding American value of lived democratic choice.

Justice Breyers opinions are characterized by detailed consideration of the many factors that legitimately bite on a legal questions, coupled with close attention to factual detail. His dissent in the New York gun case last week, as well as the careful and modulated dissent from the wrecking-ball abortion decision, show as much. His opinions are often accompanied by voluminous appendices, listing in exhaustive detail the facts behind a specific point.

Sometimes, this exacting attention to the world drove Breyer to progressive conclusions. In a 2015 dissenting opinion, for example, he painted a comprehensive empirical portrait of a capricious, oft-lawless, and racially tainted capital justice system. His relentless and powerful catalog of racialized caprice and malice should lay to rest any thought that the American death penalty can avoid being cruel and unusual in violation of the Eighth Amendment, let alone even-handed across the color line.

In a more centrist vein, he penned in 2006 a sweeping rebuttal of the Courts decision to invalidate race-conscious efforts by schools to maintain integration. Chief Justice Robertss majority rested on a phrase of illusory simplicity: The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. In contrast, Breyer demonstrated beyond doubt that when historical patterns of racial discrimination carve up the present social world, race-blindness has the effect preserving uneven access to quality education.

Justice Breyers solicitude for the facts has not been mere code for liberal outcomes. Instead, respect for facts also led him often to conservative, even illiberal, opinions. In 2011, for example, he dissented from the Courts invalidation of a California statute banning the distribution of violent video games to young people. Canvassing alternatives to a ban, Breyer flagged serious enforcement gaps left by other technological options. In 2005, he cast the decisive vote upholding a six-foot-tall statute of the Ten Commandments on the grounds of the Texas State Capitol. This vote was based on his careful evaluation of the way both religious and secular citizens experienced their government in Texas. And in 2002, Breyer provided the pivotal vote in an important Fourth Amendment case about students rights against suspicionless drug testing. He upheld the practice against constitutional challenge, citing the serious national problem with drugs, and the schools decision to avoid criminal or disciplinary.

Indeed, his most recent majority opinion, issued in a religious liberty case at the beginning of May, ruled for the First Amendment claimants wanting to fly a Christian flag in Boston. By todays standards, this was a conservative outcomeyet Breyer managed to put together a coalition of both liberals and conservatives. Where he aimed to encompass diverse constitutional values, his conservative colleagues only weeks later blew past precedent to elevate the constitutional rights of the religious over those of the secular.

The clarity and rigor of Justice Breyers opinions are absent from many of his more conservative Justices recent work-products. As Professor Ryan Doerfler has recently explained, many Roberts Court opinions are an almost comical exercises in logic-chopping semantics. They are woefully lacking in attention to the actual context in which statutes are made.

Further, Breyers candor is at odds with the originalist label that several Justices proudly display. This label is paraded at a moment when critical areas of constitutional lawsuch as campaign finance, property takings, and racial equalityfloat completely free of any anchor in eighteenth-century understandings. In contrast, Justice Breyereven when you disagree with himtreats his reader as democratic equals who deserve an actual justification, not just high-handed sophistry.

The second key trait of Justice Breyers jurisprudence is respect for the ability of our democratic institutions to make their own judgmentsoften with tools far superior to courtsand to act on those conclusions. A 2007 study hence found him among the least likely judges to invalidate either federal or statute statutes. A study one year before that found him least likely to strike down a federal regulation (Scalia was at the other end of the spectrum).

Other Justices engage in democracy talktake Justice Kavanaughs comments about letting states decide on abortion. But Justice Breyer practices what he preaches. Not for him judicially created rules to the effect that agencies cant decide major questionsrecently invoked to shut down President Bidens vaccine mandate. That sort of judge-made rule can too easily be expanded and contracted, accordion-like, to fit the Justices policy preferences.

Justice Breyers career hence tees up the right questions to ask of the Court in coming weeks and months: Will it be well attuned not just to all the facts of the world (not just the convenient ones), and at the same time honor its limited empirical capacities? Will Justices work toward and support a constitutional democracyor are they a threat to that very enterprise? The Court that comes after Justice Breyers retirement has high standards to meet indeed.

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What the Supreme Court Loses With Justice Breyer's Retirement - TIME

In the recent Dobbs v. Jackson Womens Health decision, Roe v. Wade and Planned Parenthood v. Casey were struck down. In his opinion, Justice Clarence Thomas wrote three previous rulings that used the same constitutional mechanism as Roe and Casey had been decided erroneously and should be reexamined.

StateImpact Oklahoma reporter Beth Wallis interviewed Kathleen Tipler an OU political science professor who specializes in gender, sexuality and the law to understand how the Dobbs decision could impact other precedents related to contraception, sexual privacy and marriage equality.

This interview has been edited for brevity and clarity.

Why substantive due process matters

Wallis: Well, Dr. Tipler, thank you for taking the time to speak with me today. I wanted to start off with the Dobbs Jackson Womens Health decision from last week. The courts majority disagreed with how Roe and Casey used substantive due process and the right to privacy. Can you help us understand what that means?

Tipler: Roe and Casey were both grounded on the Due Process Clause. The 14th Amendment and the Fifth Amendment says that before the government can deprive somebody of their life, liberty and property, there has to be this due process of law, and theres basically two forms of due process that courts have recognized: One is what is called procedural due process, which means there must be certain procedures put in place by the government to make sure that the overwhelming power of the government doesnt just sort of wipe away whatever protections any person has. And theyre not unfairly and unjustly deprived of life or liberty, like put in jail without good cause, or property. And so we have protections. For example, if youre charged with a crime and can potentially be put in jail, you have a right to see what evidence there is against you. You have these rights to provide evidence on your own behalf to protect yourself and to cross-examine witnesses. And these are all what we call procedural rights, the established procedures to make sure that the government doesnt unjustly take away your life, liberty or property.

Substantive due process is the second area of protections that courts have recognized as following from that clause. If you think about, okay, if we have these procedures in place in order to make sure that people arent unjustly deprived of their life, liberty and property, we have to think about, what does that liberty consist of? So the obvious one is your ability to roam about and do what you want and not be in jail. And then theres this other question of, Well, what else is included in that concept of liberty? Since the Constitution was written, the courts have recognized particular rights as being referenced and being protected by that term, liberty. And thats where we get this idea of substantive due process.

You really see that burgeoning in the late 19th century and the early 20th century, with the Supreme Court recognizing particular individual economic rights, including a right to contract. And they saw this right to contract as being protected by the Due Process Clause. And in doing that, they said the Supreme Court struck down all sorts of economic regulations regulations between employees and employers as violating this individual right to contract, and the Court moved away from that position in the 1930s, which people associate with this case in 1937 that really sort of abandoned this doctrine of recognizing this right to contract as a precursor to a substantive right under due process. In the late 1930s, theres this famous footnote where the Supreme Court says that, We recognize that theres other substantive rights in the due process clause. Including all the rights that are in the first eight amendments, the Bill of Rights, as well as rights to participate in political process, as well as rights that would protect, quote unquote, discrete and insular minorities. Which we recognize now as very much including racial minorities, that is a very common use of that. So thats sort of the origins of it.

And then, moving past the 1930s, you get it repeatedly recognized in many cases, a lot of them have language of an individual right to choose about intimate relations and family relationships, including an early one in Myers v. Nebraska, about the parents having a fundamental right to control the upbringing of their children. So you have these rights around like child custody, rights around marriage, rights about intimate relations. And we see the court is recognizing these sorts of rights, rights to privacy, as providing the content for that word liberty in the due process clause.

How Roe and Casey were decided and what Dobbs challenged from those decisions

Wallis: So we have this idea of substantive due process and the right to privacy. How did that play into Roe and Casey? And then how is that interpreted in Dobbs?

Tipler: In short, the Dobbs opinion says that when were reading that word, liberty in the Due Process Clause, we should not read within it a right to abortion. Thats what it says. And it takes this long standing idea that these rights that the court reads into liberty must be rooted in the nations traditions and ordered liberty. And the way that the Dobbs decision reads, it is this very stringent, strict, hardcore is the way I would describe it, originalist reading, where it goes back and looks at, Was there an explicit right to abortion in the text, in the legal doctrine, at the time that the Fifth Amendment was written in the 18th century, and the time that the 14th Amendment was written in the 19th century? And I think probably not shockingly to anyone, there is no explicit reference to a right to abortion in 18th century text. If you look at the history, this wasnt something really that legal professionals were talking and thinking about at that point. There are some references to the quote unquote, quickening, which is associated now with the idea of viability. But were also talking about 18th century medical conceptions ideas that do not map on to current medical knowledge. I mean, even the medical knowledge, and the technology of Roe doesnt map on to what we have now because its advanced so much. So theyre using this there has to be this explicit right to abortion in 18th and 19th century text. Its not there. So its not a fundamental right thats protected by substantive due process. This idea that your life, liberty and property cant be unjustly deprived by the state. Thats how Dobbs gets to the place it gets.

If you go back to Roe, its saying that they locate a right to privacy, particularly a right to privacy between a woman and her doctor to make this decision, which, following the ideals of that time, was very much a medical decision. It hadnt been politicized in the way that it has now. And they are getting that right to privacy from an earlier decision about contraception.

How Griswold v. Connecticut spelled out the case for a right to privacy

Wallis: So Roe viewed the right to privacy as under that liberty umbrella, and that privacy precedent came from another case Griswold v. Connecticut in 1965. Talk about how Griswold is connected.

Tipler: Griswold v. Connecticut was a decision that struck down a Connecticut law banning contraception. And a couple of interesting things about Griswold one interesting thing is that contraception wasnt particularly controversial at that time. They actually had trouble bringing the case because there werent arrests being made. Also interesting at that time is that in the 1960s, you have the first oral contraception, and so you have this widespread use of oral contraception that again seems to be largely accepted by the public. So not a terribly controversial decision to strike down this ban on contraception.

But it did create this right of privacy in a legal reasoning that was and continues to be controversial, where they said that there is a, quote unquote zone of privacy. And that zone is created by reading different amendments, different parts of the Bill of Rights together. So different rights that are explicitly in the Constitution together, including: Theres a right of association in the First Amendment to affiliate with whomever you want. Theres a right to not having troops quarter in your house in the Third Amendment, which indicates this area of privacy in your physical home. There is a right to be protected against unreasonable searches and seizures in the Fourth Amendment, a right not to incriminate in the Fifth Amendment. And then the Ninth Amendment, really importantly, says that the previous eight amendments should not be read as the limit to all amendments in the Constitution. The Ninth Amendment says that there are other rights that are not explicitly in the Constitution.

And so reading all of these together, they say that there is this zone of privacy that we can read into these different explicit rights in the Constitution to see that theres this sort of this long standing tradition of privacy and expectation that certain areas, particularly within ones home and in a marital relationship which is what Griswold addresses that theres an expectation of a right of privacy, to be protected from government interference. And that includes the decision to use contraceptives within a marriage, which is what that case is about. And so theres also, in that opinion, discussion of this long standing value of marriage as well. So that case, Griswold, was not controversial because of its outcome at the time, I dont think, but controversial because of pulling all of these different pieces, the different Bill of Rights together, to say that there is this right to privacy.

And so Roe references this right to privacy, although really I think it doesnt necessarily attach itself to that whole apparatus about pulling all these different pieces together. And it quite explicitly says wherever that right to privacy is found, it exists. And its broad enough to encompass a womans decision whether or not to terminate her pregnancy.

The role of the Ninth Amendment

Tipler: I do want to emphasize the Ninth Amendment. I think it is important, because if we think about the history of the Constitution, where those first amendments come from, the ones that we call the Bill of Rights today, there was a lot of debate about whether to put those in the Constitution, and you had a large contingency of people involved in writing and ratifying it. They really did not want anything like a Bill of Rights, because they were worried as it turned out, they were very prescient and correct here they were worried that the Constitution would be read in a limited way as only the rights that were explicitly in it were the ones that were to be recognized, and they did not want to do that.

So there were many, many people who did not want to have the list of rights that we now have. And ultimately that ended up being the product of a compromise, where you have James Madison sort of moving the final step of ratification along and trying to get people who oppose the new Constitution to get on board and vote for it. And one of the ways he did that is he said, Okay, well, I know you guys really want this Bill of Rights. So even though I have deep concerns about it, because I think people are going to read it in this limited way, we will go ahead and make sure thats the first thing we do after the Constitution is ratified, is add in this sort of list of rights. But were also going to put in The Ninth Amendment, which says, Do not in the future ever read this list as the only rights that are in the Constitution. So when were talking about substantive due process, theres also people reading the Ninth Amendment that says do not read the Bill of Rights as the only rights that the Constitution.

So then, of course, the question comes up, How do we give content to liberty? There is sort of this idea of looking back to tradition, and this is where you get the Courts reading in the 20th century, a right to marriage rights, to privacy rights, to custody of ones child, things that are not explicitly in the Constitution. But certainly theres a long history, and the public society recognizes these, I think, as rights. And then you have Dobbs saying, No, we dont. We dont just look at these traditions. We look at very particular moments in history at the time that the 14th Amendment was written, the time that the Constitution was written and ratified. And we look at legal text around then and we see that there is no right to abortion.

I think theres a couple of different things: One, is this looking for an explicit right to abortion. Thats not what the previous Roe or Casey were built on. They were built on a right to privacy. And Casey sort of changing that slightly to a right to make choices intimate and personal choices that, as they put it, are central to personal dignity and autonomy, which really fits in well, I think, with that whole other tradition of other rights under substantive due process that are being articulated the choices like child custody and marriage that this is about individual autonomy and dignity. And thats part of our tradition, too. Even though the right to make that choice is not explicit in 18th and 19th century legal text. So I think thats really sort of the difference. Where are we looking? What sort of texts are we looking at? Or, are we looking at principles like dignity and autonomy that Roe and Casey saw as central to the tradition, as well as many other cases in the 20th century?

What Planned Parenthood v. Casey decided

Wallis: So I want to talk specifically about Planned Parenthood v. Casey. Can you give a brief overview of this case and tell us how it both reinforced and modified the Roe decision?

Tipler: So Roe said that theres a right to privacy. And then Roe also said that state governments have a legitimate interest in both protecting the mothers health, as well as the health of the fetus that could become a child a potential life. And so Roe said that states couldnt place any restrictions on abortion during the first trimester. And in the third trimester, they said that the states have to prioritize the potential life of the fetus. And in that second trimester, the states can have all sorts of prohibitions, but within some limit. So this is their attempt to balance what they saw as sort of a legitimate right to privacy, as well as legitimate interest in womens health and safety, and this potential life of the fetus. And that trimester system is partly sort of, Well, lets create a compromise so we can move it into threes. And so privacy has one, potential life has another, and in the middle is a compromise. So that works nicely within the tripartite division, but it also is coming from the medicine of the time, looking at when the fetus can potentially live outside of the womb.

And so you move on to Casey, and medical technology has changed, and so viability has changed, where viability has sort of shifted earlier into the pregnancy. Casey, instead of emphasizing this right to privacy, I think they emphasize a broader tradition of what substantive due process has come to mean in the 20th century, which is about the right to make these choices about personal and intimate life settings things like marriage and custody of your children and decisions over child-rearing. So theyre grounding it more in that tradition. And theres this right autonomy in your personal area, your personal life, in familial life.

Also different in Casey, is that theres an emphasis on stare decisis this idea that precedent is important. And Roe v. Wade occurred almost 20 years before Casey. Stare decisis is the reason we have Casey. But if you go back and read Casey, the court is at pains to emphasize that theres a constitutional source, theres a constitutional argument that theyre making about personal autonomy and substantive due process. They also talk about stare decisis, but its one of the reasons that they say they come to the decision that they do its not the only reason.

So Casey upholds the main holding in Roe that there should be this balancing between what is now being framed more as this personal autonomy right or a right to make choices about ones own life, as well as continued legitimate state interest in and the mothers health, as well as this potential life in the the fetus. So it continues to balance all that, but it also changes the way that courts should examine these laws regulating abortions. Rather than just using this strict trimester framework that Roe set up, viability has changed to be earlier. So you had instead of 28 weeks, 22 weeks.

And also, they say that there should be no undue burden on this right for women to have an abortion. There can be some burdens, they just cant be, quote unquote, undue. It cant be a substantial obstacle in the place of a woman seeking an abortion. So all sorts of other restrictions are allowed as long as women can eventually get it. But since Casey, theres been a regular, constant stream of litigation over what exactly counts as an undue burden, with the court increasingly seeing obstacles not as undue burdens as acceptable under that undue burden standard. And critics have looked at that as shrinking the space for the right to abortion or right to choose, depending how you frame it. And then, of course, now you have Dobbs, which completely gets rid of it.

Sexual privacy at stake?: Lawrence v. Texas

Wallis: There are two other cases I want to get into that use Griswold as precedent, and those are Lawrence v. Texas and Obergefell v. Hodges. These cases arent about abortion, but people are still very concerned that the Dobbs ruling could affect these rights as well. So starting with Lawrence in 2003, how was that case decided?

Tipler: So Lawrence v. Texas is regarding a Texas law that prohibited same sex sodomy. And the Supreme Court in that case reaffirmed this right to privacy and said that in this Texas law, the right to privacy was being violated, because that right to privacy includes this right to consensual adult sexual conduct in ones home. And so, of course, if a right to privacy isnt being acknowledged by Dobbs, people are wondering, what about these other cases that rely on a right to privacy like Lawrence v. Texas?

Marriage equality at stake?: Obergefell v. Hodges

Wallis: So that takes us to the 2015 Obergefell v. Hodges ruling, which recognized the right to marriage equality. How was the right to privacy used as precedent in this case?

Tipler: The right to privacy in Obergefell was read together with the Equal Protection Clause, and it basically said that there is a right to marriage, which, to be clear, wasnt established in Lawrence v. Texas, but comes from a number of these substantive due process cases, most explicitly Loving v. Virginia, which is about interracial marriage. So reading this right to marriage from the Due Process Clause together with equal protection arguments, a state cant allow only straight couples to have access to this fundamental right of marriage that that violates equal protection.

In other words, you cant exclude a particular class of people from this fundamental right. You cant exclude same sex people from this fundamental right of marriage. So its reading equal protection and the Due Process Clause sort of together. I wouldnt say its based so much on privacy, it is sort of based on privacy. But also, this line of cases that were talking about, a lot of it is based on autonomy, is the language that is being used, and the right to make choices about ones life and how to live ones life. And also included in Obergefell is language about individual dignity as well as autonomy, and how not having access to fundamental rights also damages dignity as well.

Interracial marriage at stake?: Loving v. Virginia

Wallis: How does the Loving decision fit into all of this? And just to reiterate, that was the decision that recognized the right to interracial marriage. Does Dobbs challenge Loving?

Tipler: I dont think Dobbs challenges Loving, because Loving is built on equal protection and this due process right to marriage. I dont think it challenges Loving for two reasons: One, I dont think this Supreme Court is interested in getting rid of a right to marriage. I could be wrong. But I dont see that as a concern. And two, the way that the Loving decision is written, the equal protection and rights to marriage arguments are not tied together in the way that they are in Obergefell. So I think that Loving could stand on equal protection grounds alone. And again, the Court hasnt shown any interest in undermining that in a way that would undermine Loving. So I dont think Loving is threatened by this.

Beyond abortion what Dobbs could mean for contraceptive access, sexual privacy and marriage equality

Wallis: There seems to be a disconnect between justices on what precedent is affected and whats not Justice Thomas is saying Griswold, Lawrence and Obergefell should be reexamined, but Justice Alitos majority opinion says the decision would not have the implications Thomas wants. What are the implications for these other three rulings?

Tipler: We dont know, because this could be read in different ways. And what will happen to things like Obergefell and the other cases that Thomas is calling to overturn? To be very trite, but I think also very accurate, it just depends. It depends on what the Supreme Court does. This could be bracketed off and sort of intellectually sequestered as fundamentally different, and so it doesnt have to affect other lines of doctrine around substantive due process. Or it could be pulled in to undermine and overturn that line of doctrine. But I doubt probably all of it, because some of what were talking about here is the conservative legal movement.

And some of that tradition is quite important to conservatives who have very effectively organized to overturn Roe, and like Thomas notes, are interested in overturning some of these other decisions. But theres splits in that movement as for how far it goes. It depends on what the Supreme Court does. It depends on if we have the same folks on the Supreme Court as we do in the future. It could potentially depend on the degree to which this decision undermines judicial legitimacy, which is already at an all-time low right now. And although Im not sure that the majority cares that much about that, but certainly, Justice John Roberts does he wrote a concurrence here, and Kavanaugh wrote a concurrence trying to limit this decision. And you could also say it could also depend on what effect this decision has on the upcoming election cycle and the results of that as well.

Wallis: So now that weve gone over how these cases that Justice Thomas referenced are connected to Roe and Casey, how concerned should people be that contraceptive access, sexual privacy and marriage equality are on the chopping block?

Tipler: There is a debate among people who are puzzling through this opinion and thinking about Supreme Court dynamics, people are wondering and arguing over the degree to which people should be concerned about these prior decisions, about contraception and same sex marriage. And there are certainly really smart, well-informed people who are very concerned. There are other people who say, Maybe we dont need to be as concerned. I see it as not inevitable that its going to go one way or the other. But I think theres good reasons to be concerned, and I think that people on the left should not have been shocked by this opinion. And that if they care about these things, they should have been far more concerned for the decades preceding this that led up to this moment. It didnt come out of nowhere. It came out of political organizing. So, yeah, I think people should be concerned, as they should always be concerned about their rights.

When a right is sort of created by the Supreme Court, it can go away. And thats one of the reasons that the Obama Administration was trying to get some of these LGBT protections through the legislature though thats a generous way to read that. Because if rights are created either purely by executive order or by a court, they may not have that same endurance as through the legislature. But I would say, with all rights, theyre not something that you could just take for granted. They are constantly the product of politics and political organizing.

One thing that a lot of people have been wondering from the political science side is, what are the organizing ramifications? What are the partisan ramifications of this? Overturning Roe has been this major mobilizer for the Conservative Party for decades. And theres good evidence that thats where the quote unquote backlash came from, that it wasnt some sort of grassroots response to Roe v Wade. It was the product of strategic organizing in order to change the composition of the Republican Party and bring Catholics into the Republican fold who had been more Democrats prior to that. So this raises this interesting political question of what happens from here? Does the Republican Party just keep passing all sorts of different abortion laws to mobilize their constituents? As weve seen, Oklahoma has multiple abortion laws that overlap with each other. It doesnt seem like from a purely governance perspective, we need all of these abortion laws.

So do Republicans just keep mobilizing around abortion and find new ways to do that? Because one of the criticisms of Dobbs is that Dobbs says, well, we just want this to be out of the courts hands. But theres still so many things that need to be decided, it doesnt seem likely to end litigation. Theres questions about, well, what about a miscarriage? Were seeing some of these issues pop up already in Texas thats had these significant restrictions longer than everyone else now. What happens when somebody has a miscarriage, and the fetus will not live, and yet the doctors do not want to provide an abortion because they think even though that thats sort of the medical answer, because theyre worried that theyre going to break the law?

So theres all sorts of questions still that are potentially litigated. Is that where Republican organizing is going to go, or do Republicans say, Okay, weve won this? And also maybe now Democrats are more organized than us because theyre really upset about this. So this isnt a way to mobilize, to win elections, so do we instead turn to things like same sex marriage trigger laws, all the laws like that that were being passed before Roe in relation to abortion? Do they start moving to other issues?

Of course, the counterargument there is that same-sex marriage seems to be more widely accepted. But then there is a counterargument to that, too, which is that actually, Roe has been widely accepted and the majority of people do not want to overturn Roe. But that wasnt an issue for Republican organizing, because the nature of our electoral institutions now in the primary system, with gerrymandering, is that Republicans are motivated and incentivized to go to the extremes of their party. And so same-sex marriage laws can be really appealing for that group and maybe contraception laws as well, although I think that seems even less likely.

Wallis: Do you think theyd go after Lawrence? That seems like a really hard one to enforce.

Tipler: I think that could live under equal protection because the Texas law was a same-sex sodomy statute, only targeting same-sex couples. So it could stand solely on equal protection, not substantive due process. I think legally Lawrence can stand on equal protection, so conservatives could sort of coherently get rid of a lot of these due process decisions and still let Lawrence stand under equal protection if they wanted to.

Wallis: How do you even enforce anti-sodomy laws? Do you bust into someones bedroom?

Tipler: That was also, interestingly, a big part of the contraception decision as well. In the Griswold decision, activists had trouble getting that before the court, just like they did with Lawrence v. Texas, because of problems with enforcement.

Something thats really interesting right now, I think, is the distribution of contraception and the ability of criminal surveillance has radically changed. And so contraception bans become much more enforceable potentially in all sorts of scary privacy ways. So that is fairly different now.

But I do wonder, I dont know, spitballing, but if theres other mechanisms of enforcement for something like a sodomy statute that there didnt used to be, with something like porn sites. Or theres things that give clues, like the way that you can track all sorts of things on the Internet now or social media stuff like Grinder and other apps where people are either dating or hooking up in some same-sex relationship. Maybe it used to be hard to enforce, but its not anymore because you dont have to go into someones home.

Wallis: Its starting to turn into a very kind of Orwellian situation.

Tipler: Yeah. And thats the reason that there is the right to privacy. The people who are writing these decisions will be like, Its not turning into, this was the fundamental initial concern, was that you have a right to privacy. But yet with the way that we have our lives online, in the way its so visible, yeah, youre right. It brings in another level of surveillance. But that has been the concern all along too.

Wallis: Dr. Tipler, thank you so much for your insight.

Tipler: Thank you so much for having me.

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'When a right is created by the Supreme Court, it can go away': What overturning Roe could mean for contraception access, sexual privacy, marriage...