Nadler Opening Statement for Hearing on “What’s Next: The Threat to Individual Freedoms in a Post-Roe World”
Washington, July 14, 2022
Washington, D.C. - House Judiciary Committee Chairman Jerrold Nadler today delivered the following remarks, as prepared, during a full committee hearing on “What’s Next: The Threat to Individual Freedoms in a Post-Roe World”:
“What is the meaning of freedom in America in 2022? This is the question that we, as a society, must confront today in the wake of the Supreme Court’s appalling decision in Dobbs v. Jackson Women’s Health Organization, which eviscerated the constitutional right to abortion and laid the groundwork for a radical reshaping of our fundamental liberties.
“As we reckon with the consequences of this decision for women’s health and individual liberty, we must also consider which other constitutional protections—such as the right to contraception, the right to marry whomever we choose, and the fundamental right to privacy—may also fall by the wayside if the current Supreme Court majority continues down its dangerous path.
“By overturning 50 years of precedent in Roe v. Wade and Planned Parenthood v. Casey, the Court denied the right of women to equality, bodily autonomy, and essential health care—rights that they have justly relied on to order their lives for almost a half-century. In doing so, the Court removed from individuals the power to decide the fundamental question of whether to carry or terminate a pregnancy and, instead, gave that power to the government.
“Making decisions about when and how to start a family is central to women’s lives. It is the very essence of what it means to be secure in one’s bodily autotomy and basic human dignity, which are prerequisites for freedom. In Dobbs, the Court’s majority ignored these fundamental principles and, instead, turned the clock back 50 years.
“And make no mistake. Overturning Roe was just the start. Republicans and anti-abortion forces are determined to enact a nationwide ban on abortion the next time they control the political branches of the federal government.
You don’t have to take my word for it. Senate Minority Leader Mitch McConnell made it clear that “it’s possible” that a Republican-controlled Congress would enact such a ban. And the Washington Post reported that ‘leading anti-abortion groups and their allies in Congress have been meeting behind the scenes to plan a national strategy . . . including a push for a strict nationwide ban on [abortion] if Republicans retake power in Washington.’
“But the impact of Dobbs may be even broader than undermining abortion access. For much of the last two generations, Congress, the Supreme Court, and the Executive Branch have acted—even if with some considerable backsliding at times—to protect and, in some cases, to expand guarantees of personal liberty and autonomy against government interference. These constitutional and legal guarantees of personal liberty, in turn, reflected American society’s move toward an ever more expansive view of individual freedom.
“Today, however, a radical right-wing majority on the Supreme Court seeks to challenge the broad arc of our nation’s history, an arc that had been bending towards greater freedom and justice for all. This majority, made up of conservative judicial activists, has barely tried to hide its aim of eviscerating many of the protections for personal liberty that we as a society had come to believe would remain in place.
“Indeed, on the right to abortion, a decisive majority of Americans believe that the Court was wrong to overturn Roe’s constitutional guarantee for abortion access. But the Court has defied the will of the American majority and—in doing so—has undermined its own legitimacy in their eyes.
“While Justice Alito specifically claimed that Dobbs was limited to abortion and had no effect on other fundamental rights, I find that assurance to be cold comfort.
“The Court’s reasoning in Dobbs, if taken to its logical extent, could serve as a roadmap for this conservative majority to eviscerate in future cases other fundamental rights premised on the right to privacy and the doctrine of substantive due process more generally.
“According to this Supreme Court majority’s limited conception of ordered liberty, our understanding of the fundamental freedoms guaranteed by the Constitution should be frozen in amber at the time the Constitution and the Fourteenth Amendment were ratified—periods in history when women and minorities were largely locked out of public life and American democracy.
“Moreover, Justice Thomas’s concurrence is the proverbial canary in the coal mine. There, Justice Thomas said out loud what the rest of the Court’s majority sought to keep quiet: that under the reasoning of the Dobbs decision, other fundamental rights should be vulnerable to future attack.
“By calling on the Court to reconsider and overturn all of its substantive due process jurisprudence—including, specifically, precedents recognizing constitutional protections for contraception, intimate relations, and marriage equality—Justice Thomas practically invited legal challenges to these and other rights.
“That said, these other fundamental rights premised on the right to privacy—the doctrinal foundation for Roe and Casey—remain the law of the land. This includes the landmark decisions that Justice Thomas explicitly targeted.
“But what the example of the Dobbs decision teaches us is that we cannot be complacent or allow ourselves to be left scrambling to respond after worst-case scenarios have come to fruition if we want to secure fundamental rights for all Americans. This is true especially in the face of a determined onslaught by the conservative legal movement and its allies on the Court.
“To “secure the blessings of liberty to ourselves and our posterity,” as our Constitution’s preamble states, we must remain vigilant against forces hostile to that liberty, including—unfortunately—the current majority on the Supreme Court. We should also consider legislative measures that will secure rights that the Constitution currently guarantees, no matter what may happen in the future.
“I thank our witnesses for their participation in today’s hearing and I look forward to their testimony.”