by Sen. Joe Benning
A very long time ago I first got to visit Fort Ticonderoga. Included in the museum’s collection was the saber of Ethan Allen, which had a fierce looking dog’s head on the pommel. In Ethan’s most famous statue he wears that sword on his left hip, while his right hand is (according to the sculptor) raised in the defense of liberty. As I come to recognize the true significance of the US Supreme Court’s Dobbs decision, I’m wondering if he’s now instead hailing a cab out of town.
The Dobbs decision eliminates a fifty-year-old federally-recognized constitutional right to privacy, couched in terms of reproductive rights, and reverts the issue back to the states. While some celebrate victory, the idea that a federally recognized right to privacy could so easily be removed from federal jurisprudence is nothing to celebrate. My constitutional law professor at Vermont Law School, Professor Peter Teachout, calls this walk-back of a formerly recognized federal right “profound.” To understand why he’s right, let’s remove the underlying issue from the discussion and focus solely on the process.
First recall the last three appointees to the Court repeatedly assuring senators during intake interviews that they considered the liberty/privacy issue in Roe v. Wade as “settled law.” They lied. There is no other way to spin it. They had an agenda. If you support that agenda, maybe you’re prepared to ignore those lies. What’s the big deal, right?
The “big deal” is that the US Supreme Court is this Constitutional Republic’s final arbiter of all controversies. Discipline in maintaining legal concepts, particularly when they run counter to a justice’s personal preference, is the only way the people can be assured that controversies can be put to bed. This is especially significant when it comes to recognized constitutional rights. Another group celebrating this week believes certain gun right controversies have been put to bed. The Dobbs Court has just proven those “settled” gun rights can be “unsettled” by the political winds associated with the next court appointees. Our Constitutional Republic’s foundation has just cracked.
Most disturbing is the concurring opinion of Justice Clarence Thomas. A Justice clearly on a mission, his ponderings signal other current rights he’d unsettle. His list includes whether there should be a federally recognized right to privacy in the use of contraceptives. Perhaps this will finally make ambivalent men more cognizant of why pro-choice advocates have been clinging to the Roe decision. Put squarely: Gentlemen, do you really want government involved in whether you can wear a condom?
So I find myself disappointed and concerned with the Dobbs decision. Disappointed in that a constitutional right has been walked back, something I cannot recollect ever happening before. Concerned because we can no longer rely on the US Supreme Court as being a place where law is ever “settled.”
Ethan Allen fought for Vermont to become the 14th State believing the Union would better protect individual liberty. That noise you hear is a dog-headed saber rattling in its scabbard.
The author is a Lyndonville resident, state senator for Caledonia County, and candidate for lieutenant governor.