Sen. Coons in hearing on Dobbs decision: "what other fundamental rights might… be at risk?"

Hearing

Today, U.S. Senator Chris Coons (D-Del.), a member of the Senate Judiciary Committee, spoke at a hearing focused on the Supreme Court's recent ruling in Dobbs v. Jackson, the decision that overturned Roe v. Wade and reversed nearly 50 years of precedent on abortion access and reproductive health care. Senator Coons questioned witnesses about the impacts of this decision on the rights and health of women and girls, as well as the long range implications of this interpretation of the constitution on other fundamental rights.

You can see his full questioning below.

Sen. Coons: As we've heard today, in testimony both from my colleagues and from this panel, the conservative activist majority on the Supreme Court abandoned decades of precedent protecting the rights of women to choose their reproductive health care course, and it has immediate consequences for the autonomy and the health of millions and millions of women in this country. I'm concerned that the restrictions that we've seen in Dobbs' wake will further exacerbate inequalities in access to health care in this country. Some of the states, as my colleague Senator Booker just observed, that are rushing to restrict this right also have among the highest maternal mortality rates in this country. I am grateful that President Biden promptly took steps to mitigate the impacts of the Court's policy decision. These topics are intensely emotional and divisive and are challenging for us to work through in an appropriate, safe, and constructive way in the democratic process. They are and should be the focus of discussion, debate, and action in the months ahead. So I'm going to focus my questions today on the radical legal implications of this activist Court's decision in Dobbs, and the very real human consequences and impact. Weeks ago generations of women and girls in our country understood the Constitution protected them against being forced to bear children against their will. Today, those same women and girls have been told that the right to make their own decisions about reproductive health is not a freedom guaranteed under our laws, and depending on where they live, that the state may force them to carry a pregnancy to term and give birth. If I might, Professor Bridges, the conservative history and tradition analysis, as I understand it, seems to fundamentally shortchange the rights of women and other groups of people--racial [and] religious minorities--who had no power in the democratic process at the relevant time when key decisions were made, and this is fundamentally flawed. I'd be interested in your brief comments on what's the danger of the justices' reliance on selective historical analyses to roll back a fundamental and protected constitutional right? And if this majority can engage in a moment of activism to reverse precedent that guarantees protections for women's bodily autonomy, what other fundamental rights might reasonably be imagined to be at risk?

Professor Khiara Bridges: So looking to the nation's history, whether that, you know, date is 1787, when the Constitution was ratified, 1789, when the Bill of Rights was ratified, or 1868, when the 14th Amendment was ratified, is to look at periods of the nation's histories in which marginalized populations today were completely erased. So I can talk about the LGBTQ community. They were not contemplated by the framers, by those who ratified the Constitution, their ability to live lives that are--have dignity, their ability to love who they love and to marry who they marry. That just wasn't contemplated by those folks who ratified the Constitution. People of color, immigrants, people with disabilities, people with the capacity for pregnancy, right. All of those groups were not simply thought of and their interests were not considered during that moment in the nation's history. So, I can tell you the litany of cases that we ought to be wary about being reversed--Obergefell v. Hodges, Lawrence v. Texas, Loving v. Virginia, Skinner v. Oklahoma.

Sen. Coons: Professor, what's the common thread across all those cases? Some folks who are watching may not know as much as you do about the specifics of what kinds of freedoms are protected by that whole line of cases.

Professor Khiara Bridges: The court framed these, these cases, the link that links them, is this using the liberty term of the due process clause to recognize that people need the capacity to make decisions about their personal lives, about whether they create a family, about how they raise their family, about decisions regarding love and sex and marriage, and, and so, to pull Roe out of that thread of cases, that have all recognized the right to privacy and liberty interest, is to create a chaos and create uncertainty with regard to those cases that came after and that's Lawrence vs. Texas protecting same sex contact, same sex marriage, as well as the cases that came before.

Sen. Coons: Thank you, Professor. That's an insightful comment on how much else is at risk here and why this impacts fundamental rights that we've, many of us, millions of us, come to rely on to make decisions about our own life, about our families, about who we love, how we love, and when and how we choose to have children. Lieutenant Governor, if I might, I'm almost out of time. Nothing in the Dobbs opinion, blocks states from subjecting abortion providers, women, and girls, and others seeking abortion care and trying to help them access abortion care to criminal penalties, is that correct? There's nothing in the Dobbs decision that block states from imposing criminal penalties for seeking to access abortion care. Do you expect, as a result of this decision, we'll have now a whole series of efforts at the state level that will result in contentious litigation and imposition, potentially, of criminal penalties on folks who are simply trying to help family members access abortion care?

Hon. Juliana Stratton: I think that we are in the midst of seeing the kind of chaos that has been created by this decision and what is happening all across the country, where we are seeing different decisions, legislation that's been both proposed and passed. We've seen trigger laws; we've seen people seeking to travel from state to state and cross state lines. It is chaotic and it is something that is causing harm and causes insurmountable challenges, quite frankly, for those who are trying to figure out what's possible. We need to make sure that people have the right to make decisions about what's best for them with their physician, not from politicians, and that's exactly what has been opened up with this decision.

Sen. Coons: Thank you.

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