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Analysis: The Dobbs decision and the U.S. Supreme Court decisions it overshadows

The interview posted above is from SDPB's daily public affairs show, In the Moment with Lori Walsh.

In 1992, President Bill Clinton coined the phrase "safe, legal, and rare" as a way to define abortion in the United States. In 2008, South Dakotans rejected an abortion ban at the polls.

And then came the election of 2010. A census year. A wave of Republican state legislators pushed Democrats to the side across the nation. In 2012, the national Democratic party removed the "safe, legal, and rare" catchphrase from their official platform. Anti-abortion rights legislation, often based on model legislation from national think-tanks gained steam in statehouses, chipping away at the foundations of the 1973 Roe v. Wade U.S. Supreme Court decision.

Fast forward to 2022. Abortion is now illegal in South Dakota.

Professor Mike Thompson joined us for a look at the Dobbs v. Jackson Women's Health decision. We also discuss the U.S. Supreme Court decisions that the overturning of Roe v. Wade has overshadowed this news cycle.

The following transcript has been autogenerated:

Lori Walsh:

Now, we knew and had some indication that Roe v. Wade was most likely going to be overturned because of this unprecedented leaked document. Now, here on Monday, we're having this conversation and Roe v. Wade has been overturned. Abortion is officially illegal in South Dakota. How close was the actual decision that we saw to what we thought it was going to be from the leaked document?

Mike Thompson:

Pretty close. I think it's real close, actually. We did learn a little bit more, I think, with Justice Thomas's concurrence, because one of the questions from the leak opinion was how far the court's going to go back if at all, after some of these other substantive due process rights, and Thomas made it pretty clear that those things could possibly be within the court's sights, although Kavanaugh and his concurrence and the majority said, I guess, as strongly as they can that, "No, that's not our intent."

Lori Walsh:

All right, so freshman students coming into your classroom saying, "What happened? What happened with Dobbs?"

Mike Thompson:

I don't know that I could answer that in a freshman class. It would be very difficult. The thing that's frustrating from a legal standpoint, at least for me, is that the Supreme Court issued a writ of certiorari confined to one issue and the issue is whether all pre-viability bans on abortion or unconstitutional and they issued that writ at a time when the circuit courts of appeal on the federal level were in disagreement on that question, so a very legitimate reason to grant cert. But then we don't get any sticking to that narrow issue, we get this blunderbuss of Roe is gone, and it would be a very difficult thing to explain to a freshman class about substantive due process and the creation of rights within the word Liberty and the due process clause, Roe's standing as precedent, weak or strong, when the court decides it's going to abide by its prior decisions, when stare decisis is going to be a command, and when it can be dispensed with. It would be a long conversation.

Lori Walsh:

It'd be a long conversation.

Mike Thompson:

Yeah.

Lori Walsh:

The short end of that is we don't really know what's going to happen next in the court in the same way that we thought we understood how the US Supreme Court works. Is that overstating this?

Mike Thompson:

In my naivete, I'd like to say, yeah, that's overstating it. The court is insulated politically, blah, blah, but that's not the case. I don't think that's an overstatement.

Lori Walsh:

Was it ever? Or has something changed? Were we naive about this being political the whole time? Then because something happened that really surprised us, by us, I mean, people who thought that after 50 years, that something was settled, regardless of what you believe about abortion itself, many people thought that this was settled, and then couldn't be overturned, but was that just generally not paying attention in the first place, too?

Mike Thompson:

Well, I was definitely naïve to that, and at my advanced age, that shouldn't be, but I have always viewed the court since law school as this insulated body of people who are not subject to elections, who can, sort of in a vacuum-like environment, resolve these big weighty legal issues, using legal reasoning. Not that the court doesn't do that, but this case is, and some other cases that they've decided in the last week really indicate to me that there's a major shift happening and the court is at times leading that shift, I think.

Lori Walsh:

Sure. All right. Worth noting that people like Justice Alito when he was a younger lawyer was already talking about why Roe was flawed, Ruth Bader Ginsburg herself had issues with how Roe was decided, so it's not like this is the first time anybody's been talking about the legality of Roe, and how it came to be, but it is definitely a historic moment to see it overturned.

Mike Thompson:

Yes.

Lori Walsh:

I wanted to, before we go on, because there are some other cases that we really need to address because everyone's paying attention to Roe v. Wade, or the Dobbs decision, they were kind of missing, but is there anything else about Roe v. Wade that you really want to dive into, especially, I'm curious about what happens next with some of these other what many people thought were decided protected civil liberties, what unravels when you pull on the thread of Roe?

Mike Thompson:

Well, Justice Thomas, he calls substantive due process an oxymoron. He said it just can't be. In the due process clause, there are procedural due process protections, so I'm entitled to a trial by jury that's before you can take away my liberty, but the Supreme Court way back turn of the century started reading into the word "liberty," certain constitutional protections that weren't enumerated, and they use what they call the "substantive due process clause" to do that. Thomas cites these cases, Lawrence versus Texas, a Supreme court case that said that consensual private adult sexual activity is protected. Griswold talks about contraception, the Hodge case, same-sex marriage, that people of the same can get married, and the state has to honor that. Those are cases that are based on substantive due process. There are in those cases, however, some equal protection underpinning, so the equal protection clause and the substantive due process clause sometimes work together. I can't say that there isn't a case that would challenge something like that, but those cases are really factually and legally different than the way Roe was constructed.

Lori Walsh:

What about this notion that if something wasn't, and I can't remember the exact language that they used, but it was about if the founders didn't feel like this was part of the American tradition... What am I remembering here? Do you remember the actual language?

Mike Thompson:

Yeah, the substantive due process rights, the court will say that they are fundamental, which the court defines a fundamental right as a right that is implicit in the concept of ordered liberty. That right, according to the court, has to be deeply rooted in our American tradition in order for it to be fundamental. The court goes back and looks at, for example, same-sex marriage. What is the function of marriage in a democratic society? Goes back, how has society viewed marriage since the founding? Of course, when it does that with abortion, it doesn't find any deeply rooted tradition of abortion in America, so that tends to chip away at the fundamental nature of the right to an abortion.

Lori Walsh:

Does that put things like interracial marriage and same-sex marriage at risk because those kinds of marriages are not deeply rooted, certainly at the time of the founding?

Mike Thompson:

I think from a substantive due process perspective, I think the answer could be yes. Maybe I'm being hopeful again, because I like to be an optimist, but I think the equal protection clause will save those things. I think the equal protection clause will save those things if... Well, I was going to say if Roe was brought or based on discrimination against women, it might be a different ground for that decision.

Lori Walsh:

Which was Ruth Bader Ginsburg's argument, that she believed very much that there should be a fundamental right to safe and accessible abortions, but she thought that was an equity issue, or yeah, an equal protection issue, not a privacy issue, so this is far from over as far as-

Mike Thompson:

Oh, yeah, I mean, the abortion pill and-

Lori Walsh:

... Contraception.

Mike Thompson:

... The regulation of commerce. It's going to be a wild ride.

Lori Walsh:

Interstate commerce. We'll be talking, so as a note to-

Mike Thompson:

Right, I hope we keep talking.

Lori Walsh:

... Yeah, as a note to listeners, I mean, if you don't hear what you wanted to hear today, tune in tomorrow because we'll be having another conversation.

Mike Thompson:

Right.

Lori Walsh:

Let's get to some of these other cases whose rulings are also noteworthy.

Mike Thompson:

Can I say one more thing about the Dobbs and its progeny?

Lori Walsh:

Yeah, absolutely.

Mike Thompson:

Sexual and gender orientation has never been determined by a court or by the US Supreme Court as a constitutional protection, as something that you can't be discriminated based on. The Supreme Court a few years ago in Bostock versus Clayton said that Title VII, which is a congressional statute, the word sex in that prevents employment discrimination based on sexual and gender orientation, but there's never been a constitutional protection, so with all of the laws South Dakota's included about transgender athletics and things like that, this will be the next issue that will come up.

Lori Walsh:

Mm-hmm. Now, some of the arguments about abortion is really based on religion and faith and a definition of when life begins, that might be different than the definition that is supported by medical research studies. I'm speaking kind of broadly.

Mike Thompson:

Of course.

Lori Walsh:

Now, I know there's lots of ways we can pick that apart and find out if what I just said was true and completely accurate.

Mike Thompson:

True.

Lori Walsh:

But for a lot of people, this is a religious conversation.

Mike Thompson:

Absolutely.

Lori Walsh:

Isn't there supposed to be a separation between these two things in the Constitution?

Mike Thompson:

There's supposed to. Yes, ma'am, there's supposed to be in the First Amendment. The wall. It's the wall.

Lori Walsh:

Is the wall crumbling? Has the wall come down?

Mike Thompson:

Yeah.

Lori Walsh:

Because you would make the same argument about the LGBT community, that a lot of that (discrimination) is based on people's religious beliefs, not necessarily any kind of medical research that would say there is any kind of abnormality to be attracted to someone of the same sex.

Mike Thompson:

Right, right.

Lori Walsh:

Yeah.

Mike Thompson:

Well, you might see somebody say that I have the sincerely-held religious belief, the free exercise clause versus the establishment clause where the government can't be involved in or, or trumpet a certain religion, that could be a part of it, too, as we go forward.

Lori Walsh:

Sure. All right, so once again, just note to listeners, we're unpacking this little pieces at a time. It's the beginning of a very in-depth ongoing conversation with different voices coming to the show, but let's talk about some of those other cases. Where do you want to begin?

Mike Thompson:

Well, since we're on religion, we can talk about Carson versus Macon, which is a case that this court decided last week out of Maine, where the state of Maine offered tuition assistance to families who didn't have a school in their area, and the state said that we will give you tuition assistance to attend a private school, but not a parochial school, and that was challenged. The Supreme Court said, "You can't do that. If you're going to, if you're going to choose to provide tuition assistance to private schools, it's got to be all private schools, including parochial schools," which the free exercise cases that have come up to the court have pretty much to a case been the court saying they have a right, the person has a right to that free exercise.

Mike Thompson:

But in Maine, you've got a government who is paying attention to the other clause. There's free exercise and who is pay attention to the establishment clause, which says that government's not supposed to get entangled in this, so now, you've got government money being used to fund a parochial school education, and Maine, to its credit, said, "Hey, we're not going to do that because that seems like an establishment clause problem. We don't want to get into that," and here they, by trying to pay attention to the establishment clause, they then run afoul of the free exercise clause. The court has never been really clear about how those two work together.

Lori Walsh:

Sure.

Mike Thompson:

It's a difficult issue.

Lori Walsh:

According to this ruling, then do they have to give money to any school, any faith, any?

Mike Thompson:

Yep.

Lori Walsh:

Without prejudice?

Mike Thompson:

Yeah. In the Macon case, Chief Justice Roberts made sure to say that the people who were seeking the tuition assistance had sincerely-held religious beliefs. I don't know that a pagan would have, if the court would've said, "Well, you run a pagan school, so we're not going to let you have any tuition assistance." I don't know what the court would've done there if they had gone through the sincerely-held religious belief analysis to determine whether the person had that kind of belief.

Lori Walsh:

Sure. All that, does that affect South Dakota?

Mike Thompson:

I don't think it does, I don't. I mean, there are some state dollars that go to help at parochial schools, but that help is certainly not a establishment clause violation.

Lori Walsh:

All right. We'll do some more checking into that in the future as well. Okay, let's talk about the New York State Rifle and Pistol Association case.

Mike Thompson:

Yes. Right, so this is a Second Amendment case. This opinion is written by Justice Thomas and Scalia, of course, wrote the Heller opinion case, I don't know how old now, maybe 20 years old, more than that talked about what the Second Amendment meant, and it gives people the right to everybody the right to bear arms for self-defense purposes. New York has this law that says, "If you want to carry, you have to show us a reason, a proper cause."

Lori Walsh:

Yeah, prove it. If you take the gun out of your house, prove that you need this for self-defense.

Mike Thompson:

Right, that you have a proper cause for it, other than a generalized need for self-defense. The Supreme Court said, "No, you can't do that. As long as you've got a generalized need for self-defense, you can carry." The court cuts off its noses despite its face here I think because it says, "Well, you can carry in public firearms commonly used for self-defense," so I don't know if that means I can run out there with my grenade launcher and run around with that strapped to my shoulder or my fully automatic M-16. I don't know if that's a commonly used weapon for self-defense, but now in New York, which is having all kinds of trouble with crime, anyway, people can be publicly carrying just because they want it for self-defense in that-

Lori Walsh:

Right, which would be the argument for it from those people would be say, "There's so much crime that when I leave the house, I'm just by nature at risk because I live in New York, and this is my Second Amendment right to be able to carry this weapon, to defend myself."

Mike Thompson:

Exactly.

Lori Walsh:

Which brings back to your point, if the number one weapon of a criminal would be an AR-15 commonly used, then your argument might be, "So, concealed, unconcealed, permitted, not permitted? What do we know about what happens in New York now in the subway?"

Mike Thompson:

Yeah, this is about open carry. This is about carry or open carry.

Lori Walsh:

This is open carry? Okay.

Mike Thompson:

I don't need a permit to carry open. The court went back to 1791, which was the year the Bill of Rights was ratified, and looked at what guns were used for, whether there's a tradition of open carry, and found that, yeah, there's a tradition of open carry. The founders must have balanced those interests at the time of the ratification of the second.

Lori Walsh:

1791 culture and 21st-century life collide in this case.

Mike Thompson:

Right, right.

Lori Walsh:

In all these cases, really, as we look at figuring out what the founders, what they lived on, yeah.

Mike Thompson:

Yeah, yeah. Yeah, exactly. The majority of this court, that seems to be the first place it goes is to, "Okay, what was the understanding at the time this amendment was ratified?" But the majority still acknowledges that we have to, we have to take into account circumstances now that weren't, of course, in existence in 1791.

Lori Walsh:

They do acknowledge that?

Mike Thompson:

They do acknowledge that. I remember Chief Justice Marshall, the first one said that "We can't ever forget. It's a constitution we're expounding, that it's not a static document." But where you draw, who gets to draw that line between what remains as it was in 1791 and how far that gets to go in 2022, that's a difficult thing to do, I think.

Lori Walsh:

Right.

Mike Thompson:

I think.

Lori Walsh:

Let's talk about Miranda warnings are not a right. What? [inaudible 00:18:28].

Mike Thompson:

Right. Yeah, now this, I could explain to a freshman class, I think. Miranda's decided in 1966 and everybody knows the Miranda warnings.

Lori Walsh:

"You have the right to remain silent," if you watch any crime show, right? Yeah.

Mike Thompson:

Right, exactly, right to a lawyer, can't afford one. In Miranda, the court in response to what they saw as police abuses of interrogation said, you have to advise a person of these rights, which then indicates to them, "Hey, I got a Fifth Amendment right not to incriminate myself." As soon as the court did that, the next year, Congress tried to legislate Miranda away and say, "The Supreme Court's ruling in Miranda versus Arizona doesn't work here in federal law enforcement. You don't have to abide by it." The Supreme Court then had to say, "No, this is constitutional law. This is-"

Lori Walsh:

Because of the Fifth Amendment.

Mike Thompson:

Right, "This is constitutional. It's based on the Fifth Amendment, so you can't legislate it away." Okay, fine. Since then, the Supreme Court has, I think it's fair to say, nibbled away at Miranda and its protections and when it can be waived and when it's invoked and what it applies to and things like that. There's a federal statute, 42 United States code 1983, in which Congress said that "If a governmental actor violates my constitutional rights, deprives me of a constitutional right, then I can sue that governmental actor for money for that violation. Not only do I get maybe my criminal process is halted because of that violation, but I also get to sue them for money."

Mike Thompson:

The particular wording of that federal statute is that if I'm deprived of a right secured by the Constitution, Supreme court in Vega says "The Miranda warnings are not a right secured by the Constitution," so I'm not sure where that's going to go. I think there will be states that will challenge that and try to get rid of the warnings and say, "If it doesn't have a constitutional basis, then we can get rid of it legislatively."

Lori Walsh:

Why would you want to? Based on this case, what do you know about what was at stake in this moment? This is just a procedural thing, like it's not in the Constitution, so we shouldn't have it?

Mike Thompson:

Yeah, yeah.

Lori Walsh:

Or how did it end up there now?

Mike Thompson:

The Supreme Court, and they did it in the Vega case, too, they always talk about the... I shouldn't say "always," too broad. They talk about the Miranda warnings as prophylactic. They're sort of a protection for the Fifth Amendment and so the court says that prophylactic nature of the Miranda protections, that may have a constitutional basis, but the actual granting of them and a person's invocation or waiver of them and the effect of a Miranda violation on a criminal prosecution may be different.

Lori Walsh:

Ah, okay.

Mike Thompson:

It goes along with the exclusionary rule, too. We are the only criminal justice system with an exclusionary rule, which means that if the government illegally obtains evidence, it can't use it as evidence of guilt, even though a person is plainly guilty, and people have a problem with that. A person goes free because the Constable blundered is the old saying, and people don't like that, people don't like that, that person is obviously, it's just because somebody made a mistake that criminals walking free, so I don't know if-

Lori Walsh:

They also don't like law enforcement not held to restrictions of Fourth Amendment violations and things like that, if they violate something to get the evidence that they need, and then it just turns out that evidence proves this person was guilty, they still violated the Fourth Amendment, for example.

Mike Thompson:

Right, right, and the other-

Lori Walsh:

Or the Fifth Amendment with the confession that was obtained.

Mike Thompson:

... Yeah. The thing about the exclusionary rule is that's nowhere in the Constitution. That's a remedy created by the US Supreme Court for constitutional violations, so the Supreme Court, as it's presently constituted, could say that "There's no constitutional basis for an exclusionary rule, that we should no longer have an exclusionary rule." We're getting to 1983, this statute that began as a way to get the Klan prosecuted in the South, we're getting to the point where even qualified immunity for law enforcement is being broadened to the point where there might not be a consequence for law enforcement. Constitutional violations. I don't know, this Miranda thing is, in my opinion, it's astounding. It really leaves in limbo the nature and the protection of the Miranda case.

Lori Walsh:

Well, I think I said this during the pandemic, which was, "We would be living in fascinating times if we were studying it in a textbook, but because we're living it, and somebody else will study these times, it's a little more mind-bending to sort of process everything and have the lived experience as well."

Mike Thompson:

Yes.

Lori Walsh:

This is a beginning of a conversation. We'll have you back in the future, we'll dive into these more. There's also been federal changes to Title IX, which we should probably talk about in the future, which is not a Supreme Court decision, but how does that affect things? Lots to talk about in the days ahead.

Mike Thompson:

The US Supreme Court's going to hear arguments in the fall about the constitutionality of the Indian Child Welfare Act, which has huge impacts in South Dakota, so we'll have to see what happens there.

Lori Walsh:

We will come back and have more Mike Thompson. Thanks so much.

Mike Thompson:

Thank you for having me.

Lori Walsh is the host and senior producer of In the Moment.