A Message from the Chairman
Last Friday, the Supreme Court of the United States decreed that henceforth the Government can control if, when, and how a woman can terminate a dangerous or unwanted pregnancy. Like the death of a loved one after a long terminal illness, the shock is not diminished by its expectation.
For months despite indications of what was coming, millions of Americans could not believe, and millions of other Americans barely dared to hope, that the Court would reverse a half-century of a woman’s right to make her own choices. Our shock was enhanced by the lack of precedent for the Court taking away previously established individual rights, and by the solemn promises of the justices during confirmation hearings to respect precedent and stare decisis.
The decision was clothed in the language of Constitutional jurisprudence, but as Chief Justice Roberts said in another context a decade ago, the Constitution has nothing to do with it.
Many Americans, and many colleagues at the Firm, believe passionately that abortion under some, even all, circumstances is morally or religiously wrong. They are unquestionably entitled to live their own lives according to those beliefs. They are also entitled to try to convert others to those beliefs, and even to advocate laws which impose those beliefs on others. In all of that, they are entitled to the respect of those who disagree. The stability of our democracy depends on our ability to disagree civilly and respectfully on our most divisive issues. But none of that justifies last Friday’s Supreme Court decision.
The majority opinion relies on two propositions -- the desire in a democracy to leave sensitive decisions to democratically elected legislators, and the inference that the original intent of drafters of the 14th Amendment could not have been to protect a woman’s right to choose because laws at the time and thereafter prohibited abortion. Those are not insubstantial arguments. The problem is that they do not explain the majority decision. Few, if any, Supreme Courts in our history have been as willing as the current majority to invalidate laws passed by democratically elected representatives in Congress (e.g., the Voting Rights Act, Congressional limits on campaign contributions, Congressional prohibitions of guns near schools) and state legislatures (e.g., state Gun Control legislation, state school financing legislation). The issue is the nature of the right in question -- if it is a Constitutionally protected right, no legislative deference is due; if it is not protected,
the legislative decision controls. Rhetoric about legislative deference is, at best, a conclusion rather than a rationale.
The majority’s original intent argument is also rhetoric to justify a decision already made rather than the basis of the decision. Even Justice Thomas does not question that the 14th Amendment today invalidates many laws that were well accepted at and after the Amendment’s adoption (e.g., laws requiring segregated public and private facilities, laws prohibiting inter-racial marriage, laws restricting a married woman’s right to control her property or enter into contracts). Again, the real issue is the nature of the right in question.
And that is part of what is so disturbing about the majority’s decision. Nowhere is there recognition of what this decision means to women; of the physical, emotional, and financial damage that can be caused by a dangerous or unwanted pregnancy; of the lives lost, ruined, or stunted before Roe by the absence of safe, legal abortions, and of the lives that will now be lost, ruined, or stunted as a result of Friday’s decision -- and, ultimately, of what it says about the Court’s view of a woman’s place in our society. Nowhere is there acceptance of the liberty interest that women as equal, independent, autonomous citizens have in controlling their own health and bodies -- an interest now recognized in virtually every other society that accepts the principles of individual liberty and separation of church and state.
The failure to grapple with the harm that blanket prohibitions on abortion cause women means that the constitutional analysis fails before it begins.
The political process by which Friday’s decision was achieved threatens not only the health and personal liberty of women, but the position of the Supreme Court as well. Justices have been selected not merely for their judicial qualifications or their general judicial philosophy, but for assurances as to how they would vote on this issue. Solemn statements during confirmation hearings look in retrospect like political campaign promises to be discarded once the appointment is secured. Judicial selections have been denied hearings, others have been rushed through, and justices have resigned strategically—all with a view toward shifting the political balance of the Court one way or the other. And now, with a dependable political majority in place, that majority reaches out, as Chief Justice Roberts noted, to decide an issue not even before it and overrule a half-century- old precedent protecting individual liberty.
Justice Jackson once observed that the Court was not final because it was infallible, it was infallible because it was final. For now, Dobbs is the law of the land. That does not mean, however, that the battle is over.
There are still many battles to be fought in the courts. Earlier today a BSF team led by Joanna Wright and including, among others, Sabina Mariella, Brianna Hills, Lindsey Ruff, and Isabelle Wilkinson won a temporary restraining order in Louisiana state court enjoining a Louisiana law that would have prohibited all abortions. This continues a long-standing effort by the Firm to represent vulnerable citizens in protecting their legal rights.
On the political front as well the battle will continue. At almost every turn over the last many years, those who favor government control over a woman’s pregnancy choices have outworked, outmaneuvered, and outvoted their opponents. They have shown more passion, more commitment, and more discipline. In voting for representatives, they have been prepared to focus on this issue to the exclusion of others.
If those who favor a woman’s personal liberty are not prepared to become as passionate, committed, disciplined, and focused, Dobbs will remain the law of the land. But what has been lost politically, can be won politically. A majority of Americans support a woman’s right to control her own body. They can elect the person who nominate, and the persons who confirm, Supreme Court justices. All that is required is to match the passion, commitment, discipline, and focus of the other side. The Dobbs decision was the result of the political successes, and the willingness to use political power to shape the Court, of those who want to restrict a women’s right to choose. Reshaping the Court will require many of us to think of the Court in terms different from the way we have thought about it historically, and from the way we hope to think of it again. But if this battle is important, and I believe it is, we have no alternative.
We also need to address how to deal with the current dilemma faced by our employees who may wish an abortion but live in a state that forbids it. A number of companies have announced programs that will reimburse the costs of employees who live in states that prohibit abortions, but who wish one, to travel to a state where a safe, legal abortion can be obtained. Because a number of Firm personnel strongly oppose abortions on moral and religious grounds, I believe it would not be appropriate to use Firm resources for that purpose. As an alternative, I and whoever wishes to join me, will personally pay the transportation costs of any Firm employee wanting an abortion in a state that prohibits it to travel to a state where abortions are legal. We will work with the Firm’s Director of HR on issues of confidentiality.
June 27, 2022
David Boies