I Did Not Realize How Awful the Mississippi Abortion Case Is

The basic argument is that the 14th amendment does not apply to laws that were in effect at the time of its passage in 1868. (Renquist and Scalia loved this argument)

This would mean that bans on birth control, miscegenation,  homosexuality, 

It's also profoundly ahistorical.  The 14th amendment was SPECIFICALLY passed to overrule existing state and local laws that undermine equal rights under the Constitution.

The constitutional right to abortion is under concerted attack by a deeply conservative Supreme Court. Last month, the Supreme Court permitted Texas’ ban on abortion at six weeks to go into effect in a one-paragraph ruling decided without full briefing and oral argument, stripping inhabitants of the Lone Star State of constitutional rights enjoyed in the rest of the country. On Dec. 1, the court will consider the constitutionality of Mississippi’s ban on abortion after 15 weeks of pregnancy in Dobbs v. Jackson Women’s Health Organization. In Dobbs, Mississippi is urging the Supreme Court to overrule Roe v. Wade and take away from millions of Americans the fundamental right to control their bodies, choose whether and when to start a family, determine their life course, and participate as equals in American life.

But the right to abortion is not the only fundamental right at risk. The arguments being advanced by Mississippi, if accepted, would destabilize a central part of the court’s jurisprudence protecting fundamental constitutional rights. As a result, Dobbs also threatens the fundamental rights to use birth control, marry a loved one, and make decisions about sexual intimacy.

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For good reason, state practice in 1868 has never been a measure of what fundamental, personal rights are guaranteed against state infringement by the 14th Amendment. This is illustrated not only by Roe and Casey—which explicitly rejected the idea that the state practice in 1868 fixes the fundamental rights for all future generations—but also by many other landmark Supreme Court rulings vindicating the 14th Amendment’s promise of liberty for all.

For example, in 1967, in Loving v. Virginia, the Supreme Court struck down Virginia’s anti-miscegenation statute, holding that the freedom to marry a person of another race is a fundamental right. It did not matter that anti-miscegenation laws had been common in Virginia as far back as the colonial period because, under the 14th Amendment, the right to marry cannot be infringed by the government.

Similar examples abound. In 1965, in Griswold v. Connecticut, the Supreme Court struck down a restriction on the use of birth control dating back to 1879, holding that it infringed on the right of a married couple to choose whether to start a family and bear children. The fact that restrictions on birth control had a long historical lineage did not give the government the right to intrude on a married couple’s decision about whether and when to start a family.

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All of these landmark precedents are now in the crosshairs. If the fundamental rights protected by the 14^th Amendment are determined by looking to state practice in 1868—as Mississippi and its allies urge—Loving’s holding protecting the right to marry as a fundamental right would be in doubt, as would many other landmark precedents, including Lawrence and Obergefell.

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Indeed, the amicus brief filed in Dobbs on behalf of Texas Right to Life—and signed by Adam Mortara, a former clerk to Justice Clarence Thomas, and Jonathan Mitchell, the architect of S.B. 8—demonstrates that Dobbs is just the beginning, and conservatives are seeking a much larger jurisprudential reversal. In urging the Supreme Court to overrule Roe, the brief contends that virtually all of the court’s fundamental rights jurisprudence is questionable. It explicitly rejects Loving’s reasoning, arguing that the Supreme Court was wrong to recognize a fundamental right to marry in that case. It claims that Lawrence and Obergefell are “lawless” rulings and urges the Supreme Court in Dobbs to leave “those decisions hanging by a thread.”

I expect that at least 3 of the Justices to support this morally and intellectually bankrupt argument, because they are corrupt hacks. 

Actually, 6 of them are corrupt hypocritical hacks, but some of them are sufficiently perceptive to understand making a ruling this patently absurd would reap the proverbial whirlwind.