Monthly Archives: July 2022

The deadly July Fourth attack in Highland Park, Illinois, underscores how a cherished constitutional right is under attack the First Amendment right to peacefully assemble.

Even before this most recent shooting, it had become dangerous to congregate in public. In dozens of incidents across the United States, counterprotesters armed with assault weapons and other firearms have disrupted demonstrations concerning everything from abortion to vaccine mandates to police brutality.

These disruptions are about to get worse. Because of the recent Supreme Court ruling in New York State Rifle & Pistol Association v. Bruen, states like California are going to be forced to issue concealed weapons permits to many more individuals. California, like New York, will change from a state that may issue concealed weapon permits to one that shall issue such permits to most adults without felony records.

A pressing challenge for state governments is to reconcile an expanded Second Amendment right to bear arms with the First Amendments right of the people peaceably to assemble.

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One promising approach is for states to follow the lead of Alabama and Maryland and prohibit all citizens from carrying weapons to demonstrations, protests or licensed public gatherings. New York recently did just this, designating as a sensitive location ... any public sidewalk or other public area restricted from general public access for a limited time or special event that has been issued a permit for such time ... provided such location is identified as such by clear and conspicuous signage; (as well as) any gathering of individuals to collectively express their constitutional rights to protest or assemble.

Blanket prohibitions of guns from all demonstrations and protests face both legal and political obstacles. Legally, it still is not clear that the current conservative majority on the Supreme Court will find such government restrictions on the right to bear arms to be constitutional.

After the courts recent ruling, the question will be whether the restriction is sufficiently analogous to historical examples. Politically, some state legislatures might be wary about prohibiting the bearing of arms from each and every demonstration. Open carry might be seen as a form of expression or a needed form of self-defense.

However, states have another way forward. When states and local governments grant permits to private individuals and organizations for gatherings on public land (marches on streets, demonstrations in parks or festivals in plazas, for example), in a sense the government gives the permit holder some special, time-limited control over the event in order to promote the First Amendment rights of free expression and peaceful assembly.

Those governments could allow the organizers of public gatherings to decide whether they want their events to be temporary gun-free zones. Under this approach, all public assemblies demonstrations, protests, marches and yes, Independence Day parades by default could be temporarily gun free. But the person seeking an event permit would be given the option of checking a box to indicate firearms would be allowed.

A no-guns default would powerfully respond to the problem of counterprotesters openly carrying firearms to disrupt an event. For example, the Proud Boys could not openly carry assault weapons to intimidate others if event organizers want their demonstration to be gun-free. Law enforcement would enforce this choice. So the NRA could march with guns at their own event, but guns would presumptively be banned at other events.

Putting the permittee in charge of the decision is likely to pass constitutional muster, because any gun ban would result from private rather than government restriction. It also is in keeping with our tradition of allowing event organizers to choose which types of people are allowed to be in attendance.

Another way to put the permittee in charge would be to say that all demonstrations by default permit guns unless the permittee checked a box to prohibit guns. But a no guns default is better, in part because not all demonstrations are officially sanctioned by the permit process.

A no-guns default, like the New York statute, would cover these gatherings as well. The choice of demonstrators to forgo seeking permit approval could be interpreted as the groups willingness to be gun free. Groups that want to have guns at their events would need to seek a permit and thereby give the police a useful forewarning.

Default choice matters. Everyone agrees landowners should decide whether a guest is permitted to bring guns onto their property. But until recently, every state said that, by default, customers could bring concealed weapons into stores unless the store owner explicitly objected.

New York changed that by changing the default. Landowners still get to decide. But now, by default, guests in New York may not carry concealed weapons onto someone elses property unless the property owner explicitly says firearms are welcome. States should create a similar default for assemblies on public land.

Banning guns by default from demonstrations is not a panacea. Such a ban would not have stopped the Highland Park shooting. But it can avoid the combustible confrontation of armed antagonists that all too often risks escalating to violence.

As states scramble to respond to the Supreme Courts radical expansion of Second Amendment rights, a good place to start is to better protect other foundational rights. The right of the people to peaceably assemble is an important counterweight to the new, gun-toting reality.

Ian Ayres and Fredrick Vars are law professors at Yale University and the University of Alabama, respectively. They are co-authors of the book Weapon of Choice: Fighting Gun Violence While Respecting Gun Rights.

2022, Los Angeles Times

Distributed by Tribune Content Agency

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Ian Ayres and Fredrick Vars column: How can states limit guns? By protecting this First Amendment right - Richmond Times-Dispatch

The three words that best describe the Supreme Courts decisions this term are text, history and tradition. If thats one word too many, try this: Originalism Rules! And thats a good thing.

The court considered several important constitutional cases this term. The split in most of these cases was six-to-three, with the conservative justices in the majority and the liberal justices in dissent.

In the biggest case,Dobbs v. Jackson Womens Health Organization, a five-justice majority ruled the Constitution has no right to obtain an abortion. This overturnedRoe v. Wade(1973) andPlanned Parenthood v. Casey(1992).

Nearly 50 years ago, Justice Byron White, in hisRoedissent, wrote that the errant ruling represented an exercise of raw judicial power. Similarly, John Hart Ely, an eminent scholar who supported abortion rights, stated thatRoewas not constitutional law and g(ave) almost no sense of an obligation to try to be.

>>>5 Monumental Cases That Highlighted the Supreme Courts 2021-2022 Term

Those views were reflected in the majority opinion forDobbs, written by Justice Samuel Alito. He noted that the right to an abortion is not in the Constitutions text, nor was it part of our nations history or traditions. Indeed, virtually every state outlawed abortion when the Constitution and the 14th Amendment were ratified.

The court also decided on an important Second Amendment case,NY State Rifle & Pistol Assoc. v. Bruen. Justice Clarence Thomas wrote the six-to-three majority opinion, striking down a New York law requiring law-abiding citizens who passed a background check to demonstrate a special needbeyond a general desire to defend oneselfbefore being permitted to carry a firearm outside the home.

The court said that such a restriction was not supported bydrumroll pleaseeither the amendments text or the nations historical traditions. The court further stated that the amendment was the product of an interest balancing by the people and that it was improper for a court to engage in a judge-empowering interest-balancing inquiry once the protections of the amendment had been properly invoked.

In an important religious liberty case,Kennedy v. Bremerton School District, Justice Neil Gorsuch wrote the six-justice majority opinion ruling that a school violated the free exercise and free speech rights of a high school football coach when it fired him for offering a silent post-game prayer at midfield. The court relied uponyou guessed ithistorical practices and the original meaning of the First Amendments text in reaching its decision.

The court also finally declared that the courts much-criticized three-part test for analyzing Establishment Clause cases, promulgated inLemon v. Kurtzman(1971)which Justice Antonin Scalia once described as some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buriedwas indeed dead.

The court also sided with religious adherents in other significant religious liberty and free speech cases, includingCarson v. Makin,Shurtleff v. City of Boston, andRamirez v. Collier. Senator Ted Cruz also won a significant victory against the Federal Election Commission in which the court, again by a six-to-three vote, held that an FEC rule violated the First Amendment rights of candidates wishing to make personal loans to their own campaigns to engage in pure political speech.

And inNFIB v. OSHA,West Virginia v. EPAandAlabama Assoc. of Realtors v. HHS, the court (again via 6-3 votes) held that separation-of-powers principles require Congress to speak clearly before an administrative agency consisting of unaccountable bureaucrats can exercise nearly unlimited power over decisions of great economic and political significance.

>>>Supreme Courts Ruling in West Virginia v. EPA Delivers Win for Self-Government, Affordable Energy

In his dissenting opinion in the infamous case ofDred Scott v. Sandford, Justice Benjamin Curtis stated: When a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men who, for the time being, have power to declare what the Constitution is according to their views of what it ought to mean.

During this momentous term, the court made great strides toward interpreting the Constitution with fidelity and restoring the rights of all Americans to govern themselveswith the exception of those few individual rights that are delineated in our Constitution or firmly rooted in our nations historical traditionsdebating, persuading and deciding contentious issues directly or through their elected representatives.

In terms of interpreting and adhering to the Constitution, I give the court an A-plus.

See the original post here:
Grading the SCOTUS: Originalism Rules, and That's a Good Thing - Heritage.org

If I may indulge in the sort of clich that our governor loves to employ, this looks like the calm before the storm.

Im talking about the storm of cases that will be filed over New Jerseys firearms laws in the wake of the U.S. Supreme Courts Bruen decision.

The first winds from that storm came on June 30, when the U.S. Supreme Court vacated a ruling in Association of New Jersey Rifle and Pistol Clubs v. Bruck.

The clubs had argued that New Jerseys ban on large magazines violates the Second Amendment. The appellate court originally rejected that argument and ruled the ban constitutional.

But everything changed last month when the high court issued its ruling in New York Rifle and Pistol Association v. Bruen.

By a 6-3 margin the court ruled unconstitutional New Yorks policy of issuing gun permits only to those who can prove a justifiable need.

Writing for the majority, Justice Clarence Thomas stated, The constitutional right to bear arms in public for self-defense is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees. We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.[

The ruling reads like an invitation for a whole lot of challenges, say Second-Amendment advocates.

This is a state where its a felony to own a slingshot, said Evan Nappen, a Monmouth County-based lawyer who has a reputation as New Jerseys fiercest defender of gun rights. You can also do hard time for possessing a BB gun, he said.

I envision that gun law after gun law is going to be challenged and will fall, Nappen told me. The standard put out by Thomas is an incredibly tough standard for states to meet.

Now that the high court has recognized the individual right to keep and bear arms, that right has the same standing as other rights such as freedom of speech and freedom of religion, he said.

When laws are challenged under the First Amendment, about 75 percent of the challenges are upheld, Nappen said. I suspect it will be the same with the Second Amendment.

Attorney General Matt Platkin doesnt agree. In a recent opinion piece for USA Today, Platkin wrote:

The opinion in Bruen will encourage individuals to challenge other laws, ranging from our limits on who can buy guns, to our limits on the most dangerous kinds of guns New Jersey residents can buy. I will stand up for these critical safety measures, which find support in a long tradition of public safety measures in this country, and which continue to protect us in this era of gun violence and mass shootings.

What Platkin calls critical safety measures, Scott Bach calls hypertechnical offenses.

Bach, who is executive director of the New Jersey Association of Rifle and Pistol Clubs, said state law attaches long prison terms to offenses that people didnt even know were illegal.

That includes a mother of two from Philadelphia who faced a three-year term when she was stopped on the way to Atlantic City and made the mistake of telling the cop she was carrying a pistol. Shaneen Allen had a carry permit in her home state and was unaware it wasnt honored in New Jersey. Then there was Brian Aitken, who was sentenced to seven years after he was stopped by police with two registered and unloaded guns in his trunk.

Allen was admitted to pretrial intervention after the event got national publicity. Aitken had his sentence commuter by Gov. Chris Christie after he served four months.

But there are plenty of similar cases focusing on what Bach terms hardware offenses, the mere possession of an object.

When lawmakers focus on hardware they dont make anyone safer, Bach said. Instead we should create severe criminal penalties for the criminal use of any weapon, whether its a razor blade or a baseball bat.

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Nappen noted that the state recently increased sentences for possession of so-called ghost guns. But serial numbers were not required until 1968. There are millions of guns out there that lack serial numbers, he said, and most of the owners probably have no idea that possessing one can set them up with a three-year mandatory minimum sentence.

All these people are turned into what I call law-abiding criminals, Nappen said.

Thanks to the high court, its time to change those laws.

And as for me, Ill give up my slingshot when they pry my cold, dead hands off it.

More: Recent Paul Mulshine columns

Paul Mulshine may be reached at pmulshine@starledger.com.

Follow him on Twitter @Mulshine. Find NJ.com Opinion on Facebook and on Twitter.

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New Jerseys under the gun after that Supreme Court decision on the Second Amendment | Mulshine - NJ.com

Despite the groups repulsive beliefs, Patriot Front has a constitutional right to march peacefully on the streets of Boston. Any assault should be prosecuted. The frenzied reaction to Patriot Fronts appearance, however, especially US Attorney Rachael Rollinss pledge that she will be thinking strategically about how were going to combat this, so that communities feel safe, suggests a veiled wish to limit the groups First Amendment rights (Police say they had no word on march, Page A1, July 6).

The same First Amendment that guarantees Patriot Fronts right to march in Boston, with no advance notice given, has also protected the rights to public demonstration of the many groups that have led the civil rights movement. And, to the chagrin of some, Black Lives Matter proponents can march in Mississippi, antifa members can march anywhere, and neo-Nazis can still march in Skokie, Ill. provided, of course, that they all remain peaceful.

As famously stated by Justice Oliver Wendell Holmes Jr., the First Amendment guarantees freedom for the thought that we hate, not freedom from the thought that we hate. Our constitutional freedom of speech is tough stuff. I fear that too many Americans either are ignorant of its mandate or lack the stomach to endure the existence of views they despise.

Kenneth N. Margolin

Newton

The writer is a retired attorney.

See more here:
'Freedom for the thought we hate,' revisited again - The Boston Globe

By William R. Maurer

By William R. Maurer

The U.S. Supreme Court held last week that state governments may not discriminate against religious parents and schools when providing private school tuition assistance to families. There have been some claims that the decision undermines separation of church and state or even that it is the first step towards a theocratic society. These conclusions are off-base. What the decision actually does is give schoolchildren across the country including here in Washington the hope that one day they may be able to choose the education that is right for them, even when that education comes from a school that offers religious instruction.

First, some important background. The case, Carson v. Makin, dealt with Maines tuition assistance program for high school students. Maine is a lightly populated, rural state. For decades, the state permitted towns that were too small to support a public high school to pay for students to attend another nearby school, including private schools. Until a flawed legal opinion by the states attorney general in 1980, parents were free to exercise their independent choice to select private schools that also offered religious instruction.

The legal issue in Carson was whether Maines post-1980 exclusion of religious options violated the First Amendment of the U.S. Constitution. The government cannot promote religion, but it also cannot exclude people from benefits because of religion. Yet that is precisely what Maine did, and this kind of governmental discrimination against religious belief and activity is precisely what the First Amendment was intended to prohibit. And it is why the U.S Supreme Court sided with parents and struck down Maines restriction in a 6-3 decision.

The decision is important for Washington families especially those of limited means because Washington is one of 37 states that has a Blaine Amendment in its state constitution. Arising in the late 1800s, these provisions prohibit public funding for sectarian schools or educational institutions.

At the time, Blaine Amendments were not intended to prohibit religion in public schools, which almost universally used the Bible the Protestant King James Version in instruction. Instead, they were enacted to prohibit public funding of Catholic schools, which were often attended by the children of immigrants and whom the Blaine Amendment proponents wished to convert. In other words, these provisions were designed to promote one form of religious education and suppress another. Washingtons Constitution has two provisions prohibiting public support of sectarian education.

These provisions were the main obstacle to providing educational alternatives to the public schools in Washington State, as many private schools are religious. The Courts decision in Carson effectively eliminates these barriers. If, as Chief Justice Roberts concluded for the majority, Maines nonsectarian requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment, then Washingtons bar on programs that would provide tuition support for families seeking an education at a religious school does as well.

What remains now is for policy makers in this state either the Washington Legislature or the people through the initiative and referendum powerto provide these opportunities for children. As the recent pandemic demonstrated, the 19th Century public school model can be inflexible and slow to respond to the needs of parents and children. In too many parts of the state, it has also been unsuccessful in providing a meaningful education.

Washington has been a pioneer in many things there is no reason it cannot be a pioneer in bringing a range of educational options for children and their families. Washington children should have a diverse educational options and, thanks to the Courts decision in Carson, they are no longer barred from taking advantage of some of these options because of limitations rooted in bigotry, xenophobia and a desire for conformity.

William Maurer is the managing attorney for the Institute for Justice Washington Office.

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William R. Maurer: Why the Supreme Court stamping out discrimination against religious schools is good for Washington students - The Spokesman Review

From Everytown for Gun Safety Action Fund v. Defcad, decided today by Judges Pierre Leval, Barrington Parker & Steven Menashi:

Plaintiff-Appellee Everytown for Gun Safety Action Fund is the "largest gun violence prevention organization in the United States." The anonymous defendants have uploaded downloadable files for 3-D printing firearms to Defcad.com, Odysee.com, and thegatalog.com. Pertinent to this appeal, the anonymous defendants have uploaded files bearing Everytown's name, which contain instructions for how to 3-D print gun parts and accessories bearing Everytown marks.

On October 22, 2021, Everytown filed suit against Defcad, Inc. and the anonymous defendants [alleging]: (1) federal trademark infringement under 15 U.S.C. 1114; (2) false designation of origin and unfair competition under 15 U.S.C. 1125(a); (3) trademark infringement and unfair competition under New York common law; and (4) dilution of the Everytown marks under N.Y. Gen. Bus. L. 360-L. The defendants contend that the use of Everytown's marks was a parody and therefore non-infringing.

That same day, Everytown applied to the district court for expedited discovery to learn the identities of the anonymous defendants, alternative service, and an order to show cause for why a preliminary injunction should not be entered.

On November 5, the district court granted Everytown's application and entered an order to show cause for why a preliminary injunction should not be issued. The district court further ordered that Defcad, Odysee, Inc., Twitter, and "any third-party service provider" shall "provide to Everytown expedited discovery, including copies of all documents and records in such party's possession or control relating to the true identities and addresses of Defendants." Defcad [and the anonymous defendants] moved to stay the order, [arguing that], "[t]he expedited discovery seeks to immediately unmask parties who have a First Amendment right to engage in anonymous speech."

The district court denied the motion for a stay. The district court held that Defcad lacks standing to assert the First Amendment rights of the anonymous defendants and, in the alternative, that the "objection to the discovery order would fail on the merits." According to the district court, "[a]lthough the Supreme Court has acknowledged that the First Amendment provides some protection for anonymous speech, parties may not use the First Amendment to encroach upon the intellectual property rights of others." Holding that "Plaintiff cannot effectively litigate its claims without obtaining the identities of the infringing parties," the district court denied Defcad's motion for a stay.

{Shortly thereafter, the district court approved a stipulation between Everytown and Twitter that provided for more limited disclosures from Twitter than the original order required. The district court approved the stipulation over the objections of the anonymous defendants. Applying the factors laid out in Arista Records, LLC v. Doe 3 (2d Cir. 2010), the district court held that "Everytown has made a prima facie showing of actionable harm" and that "the defendants' expectation of privacy, while a factor, is outweighed in this case by Everytown's need for the information" because "defendants may not use the First Amendment to encroach upon the intellectual property rights of others."}

On December 3, 2021, the anonymous defendants responded to the order to show cause, opposing the preliminary injunction on two principal grounds. First, the anonymous defendants argued that the district court lacked personal jurisdiction [on the grounds that they were unconnected to New York]. Second, the anonymous defendants argued that their use of the Everytown marks is protected political speech and that it is "unimaginable" that it would cause consumer confusion.

On December 14, the district court entered an order noting that Defcad had not yet complied with the November 5 order. Referring to the defendants' response to the order to show cause, the district court declared that "[t]he discovery sought by Plaintiffand ordered by this Courtis critical to, inter alia, the issue of personal jurisdiction raised by Defendants." The district court refused to credit the anonymous declarations submitted by the defendants, which the district court described as having "no evidentiary worth."

Defendants asked the Second Circuit for a stay, and here's what the court decided:

As we understand it, the district court's May 26 order did no more than advise the anonymous defendants that it would not grant their forthcoming motion to dismiss for lack of personal jurisdiction without the anonymous defendants' identities and addresses. Noting that "[t]he Anonymous Defendants will move to dismiss" on the basis of personal jurisdiction, the district court emphasized that "[t]he identities and addresses of the Anonymous Defendants are critical to resolving the issue of personal jurisdiction."

The basis for that proposition was that, without knowing the identities of the defendants, the plaintiff cannot challenge their anonymous assertions that they have had no contact with New York. Because that is the essential element of their contention that the court lacks personal jurisdiction, the district court provided in its order that "this information will be produced to Plaintiff and the Court by June 3, 2022." The import of the order to the defendants to disclose their identities was to make clear that failure to do so would result in a denial of their anticipated motion to dismiss.

Based on that understanding of the district court's order, we conclude that a stay pending appeal of the May 26 order is unwarranted. "[T]he Supreme Court has upheld the assertion of personal jurisdiction as a sanction for failure to comply with jurisdictional discovery, holding such failures may amount to a legal submission to the jurisdiction of the court, whether voluntary or not."

That is the substance of the district court's order, which informed the anonymous defendants that their motion to dismiss for lack of personal jurisdiction would not succeed if they did not provide their identities and addresses. The defendants have therefore failed to make a "strong showing" that they are "likely to succeed on the merits" of their challenge to the direction in the May 26 order that they must reveal their identities in order to receive consideration of their claim that the district court lacks personal jurisdiction over them.

Additionally, the injury the defendants would suffer from having to reveal their identities is lessened by the fact that, as Everytown acknowledged at oral argument, the stipulated confidentiality agreement permits the anonymous defendants to designate their identifying information as "Highly Confidential." Accordingly, because we interpret the May 26 order's direction to the defendants to reveal their identities as relating solely to the issue of the district court's exercise of personal jurisdiction, their motion to stay that order pending the decision of its appeal is denied.

We recognize, however, that the May 26 order could be read also to adjudicate the defendants' contention that they should be permitted to litigate the merits of the trademark dispute anonymously. The order states that the defendants' "application to proceed anonymously in this action is denied." Even though the order discusses only the jurisdictional issue, this broad language could be understood to mean that the May 26 order also directed the defendants to disclose their identifies for purposes of the merits litigation. If that were the meaning of the order, consideration of that aspect of it would raise different considerations and might call for a different ruling with respect to the stay motion.

{Both parties appear to understand the order this way. The defendants believe that the order denies them leave to proceed anonymously for all purposes in the case and that the order "direct[s] the anonymous parties to identify themselves." Everytown believes that failure to reveal their identities would subject the anonymous defendants to contempt. }

Without knowing whether the May 26 order to disclose was intended to apply also to the conduct of the merits litigationin the event the district court concluded that it had personal jurisdiction over the defendantswe cannot rule on the stay motion pertaining to that aspect of the order. We therefore remand to the district court for clarification of whether the May 26 disclosure order was solely for purposes of litigating the defendants' claim of lack of personal jurisdiction or whether it applied also to the litigation of the merits of the trademark claim.

In the meantime, solely with respect to the part of the order that (perhaps) ordered disclosure of identities for purposes of the merits litigation, we continue in effect the administrative stay originally imposed. The plaintiff, when asked, could not identify any harm that would be suffered from such a brief extension of the stay.

Note that I consulted to a small extent on this case, on behalf of defendants. I therefore don't want to offer any opinion on the case, since I wouldn't be able to do so in the objective academic way that our readers generally expect; but the court's decision seemed so interesting that I thought I'd just share this excerpt with our readers without substantive comment.

See the rest here:
Interesting Defendant Anonymity Opinion in Trademark / Parody / Gun 3-D Printing Controversy - Reason

The voice of the late Justice Thurgood Marshall echoes throughout the dissenting opinion in the recent Supreme Court ruling that overturned Roe v. Wade.

Marshall valued the rights of women and the personal autonomy of people who are pregnant as expressions of human dignity. In 1973, he joined the majority in deciding Roe, which relied on well-established methodologies to determine that abortion was protected as part of the long-standing right to privacy. In Roe, Marshall knew that right required heightened protection against government interference.

But after Roe, in a series of decisions between 1977 and 1980, the court affirmed state and federal regulations that prohibited the use of public funds to pay for abortion services. The majority reasoned in Maher v. Roe that states could make childbirth an attractive alternative without infringing the constitutional rights of the person bearing the child.

Marshall protested because the restrictions penalized women for being poor. He contended that the cost of an abortion might as well be one hundred times as great for Americans living in poverty than those who did not. He expressed outrage at the ethical bankruptcy of those who preach a right to life that means a bare existence in utter misery for so many poor women and their children.

Marshall also protested judicial endorsement of legislation that favored the states interest over personal autonomy. His prescient dissent to the majority decision in Harris v. McRae, a 1980 case that upheld federal restrictions on funding medically necessary abortions, warned that financial-based restrictions on access to abortion would not end the demand, but would severely limit a womans ability to control the direction of her own life as an equal citizen and drive women to seek unsafe alternatives.

Marshall chastised the court for ignoring the reality that poor women often face severe mental health, economic, and public health consequences when compelled to choose the attractive alternative of childbirth and parenting. Marshall concluded that judicial endorsement of regulations that unduly burdened the poor and stripped women of personal autonomy was unconstitutional and further exacerbated gender subordination at the intersection of race, gender, and economic status.

According to the Centers for Disease Control and Prevention, Black women account for the highest rate of unintended pregnancies and the largest percentage (38.4%) and ratio (117 abortions per 1,000 live births) of all abortions. Black women are three times more likely than white women to die in childbirth.

Restricting abortion access only increases their chance of death and intensifies the existing public health crisis in poor and minority communities that lack access to health care and often cannot secure adequate insurance.

So, it has come to pass. In stripping away a constitutional right, the majority on the court trammeled personal autonomy; ignored the realities of poverty, racial disparities, incest, and rape; and showed no regard for women who may seek unsafe alternatives.

As a constitutional law professor, I am appalled to see the court ignore precedent.

As a constitutional law professor, I am appalled to see the court ignore precedent (the doctrine of stare decisis is drilled into the psyche of every law student) to take away a right recognized as fundamental under the Constitution.

For more than 100 years, Americans have come to rely on the proposition that certain decisions surrounding the family and implicating bodily integrity should remain in the sphere of privacy under the protection of the Constitution. If we accept the erosion of our privacy in one instance, where does it stop? Will legislators further intrude in our bedrooms and go back to forbidding the use of contraceptives and dictate how to have sex and whom not to have sex with?

Will our bedrooms be subjected to pharisaic neighbors like the men in the Bible who dragged the woman (but not the man) from the bed and accused her of adultery in front of Jesus? Will our homes no longer be our castles?

And will we lose our religious freedom as well? A Florida synagogue filed a lawsuit challenging the new state ban on abortions as the establishment of religion and imposition of Christian nationalism in violation of the free exercise clause of the First Amendment. The highly publicized lawsuit argues that the law violates Jewish teachings that allow abortions to protect the health, mental or physical well-being of the woman. Islamic legal scholars affirm the acceptance of similar views. For that matter, there is no monolithic view among Christians on the propriety of abortion. Are we now a theocracy?

Through that prism, and Marshall would likely agree, the courts decision skirts dangerously close to violating the free exercise and establishment clauses.

I understand and empathize with the plight of individuals and families making the difficult decision on whether to bear a child. And I am outraged that a fundamental constitutional right has been taken out of our hands and placed in the hands of mostly white male state legislators.

In the words of Thomas Jefferson, speaking of the inherent contradiction between equality and slavery, I tremble for my country. The clairvoyance Marshall proved and how it speaks to the determination of the current court to base its jurisprudence on the meaning of the Constitution when women and people of color were viewed as property makes me tremble for America.

The prophetic statement of dissent by Marshall in Payne v. Tennessee rings true: Power, not reason, is the new currency of this courts decision making.

Wendy B. Scott is a professor and an associate dean at Elon University School of Law. She is the coauthor with Michigan State University College of Law dean Linda S. Greene of a forthcoming book on the dissenting opinions of Justice Thurgood Marshall.

The rest is here:
The clairvoyance of Thurgood Marshall on the question of Roe - The Philadelphia Inquirer