In Catholicism, the sin of omission occurs when a person ignores doing that which is good, needed and expected. In judicial decision-making, the sin of omission occurs when judges ignore inconvenient truths, facts beyond dispute. The Dobbs decision overruling Roe v. Wade warrants condemnation on many grounds – the end of the 14th Amendment as a source of individual liberty, the reliance on incorrect history, the freezing of rights as of 150 years ago. But also worthy of condemnation is the repeated act of omission.
First to be omitted are two words – rape and slavery. Nowhere does the majority even say the word “rape.” Nowhere does it explain how Due Process permits a state to force a rape victim to bear a child. To the majority, rape does not exist. And the relevance of “slavery?” For a majority claiming to use history as a guide to what liberties are protected, the 13th Amendment banning slavery and “involuntary servitude” must be considered. A horrific and recurring act of slavery was forced childbearing. Essential history, ignored.
The next omission is that involving restricting access to contraception. The Dobbs majority declares that it is too difficult for the Court to assess whether women made “concrete reliance” on abortion in case contraception failed. Unmentioned is Justice Alito’s decision for the Court permitting employers to deny contraception access entirely in the Hobby Lobby case. In the Dobbs world view, there is no room for those who have no access to the essential health coverage where all they can rely on is abortion if an unwanted or dangerous pregnancy arises.
Perhaps the most glaring if at first unexpected omission is the word “gerrymander.” The Dobbs majority sings the song of the democratic process, claiming that “[t]he Court’s decision today properly returns the Court to a position of neutrality and restores the people’s authority to address the issue of abortion through the processes of democratic self-government…” Yet the same Court has refused to limit the gerrymander, which means that in state after state the Legislature does not offer a “process of democratic self-government” and the dilution of the power of the vote remains unchallenged and uncorrectable.
June 24 will remain a day of loss – of a specific right that has proved essential for women as a matter of health, choice and indeed life and of a sense of security that other liberties such as who to love and who to marry will remain inviolate. But it also stands as a day of loss in terms of credible judicial decision-making – for when a court sins by omission, writing upon a record that is incomplete or radically different from the world as it is, justice is neither done nor felt.
Jules Epstein is Professor of Law and Director of Advocacy Programs at Temple University Beasley School of Law.
