The Supreme Court has been on a maximalist legal tear over the past week. First it overruled Roe v. Wade and Planned Parenthood v. Casey, and then a few days later it presumptively overruled Lemon v. Kurtzman. The result of these decisions fundamentally alters the tests for valid abortion regulations and the test for establishment clause regulations in ways that are not yet clear. This term, the high court has proved itself to be a kind of lethal combination of the History Channel and bazooka—if you’re taking the bar exam this summer, I would suggest that the answer to every constitutional law question is, quite reasonably, “facepalm.”
Those arguing that the brand-new jurisprudence emerging this week is markedly more cruel, more overtly theological, and more contemptuous of the regulatory state are all correct. But it also reflects a new kind of lawlessness that is frighteningly untethered from fact, science, and objectivity—untethered in ways that should frighten anyone who depends on the court for truth above all things. But one other theme in this radical new jurisprudence seems to be a redefinition of privacy and autonomy in ways that allow men to be at home everywhere they go, and women to be at peace nowhere.
Justice Samuel Alito’s radical opinion in Dobbs v. Jackson Women’s Health Organization is noteworthy for its casual dismissal of the economic and medical hardships of women forced to carry pregnancies to term. But it’s also striking for the dismissal of any privacy or bodily autonomy interests for the mother, who is deemed a vessel for constitutional purposes largely because she was deemed a vessel when the relevant constitutional provisions were written and ratified. After Dobbs, women’s lives will be subject to more invasive ultrasound readings, denials of health care, whims of vigilante neighbors, and electronic surveillance. Women will be spied on, turned in, and arrested. States are attempting to restrict pregnant people’s right to travel and to receive medication through the mail. They are now less protected from their rapists and predators. Effective last weekend, millions of American women will be less safe from government surveillance and intervention everywhere, both in their physician’s offices and in the privacy of their own homes. The Dobbs dissenters warned of this new reality, writing:
Some States have enacted laws extending to all forms of abortion procedure, including taking medication in one’s own home. They have passed laws without any exceptions for when the woman is the victim of rape or incest. Under those laws, a woman will have to bear her rapist’s child or a young girl her father’s—no matter if doing so will destroy her life.
After this week, women and pregnant people will lose, more than anything else, the “right to be left alone.” In half the states, their bodies are as free as the government allows them to be.
Now compare the shrinking zone of a woman’s privacy as laid out in Dobbs to the ideas of privacy pressed upon us by this week’s “praying football coach” case, Kennedy v. Bremerton School District. Even putting aside the deliberate misconstruction of verifiable facts in Justice Neil Gorsuch’s majority opinion, the most astounding aspect of this case is that if you are a man seeking to offer a prayer, you are at home everywhere, entitled to be left alone by the state in any place, up to and including the 50-yard line at a high school football game, even if there are students all around you. Places of “private” and “quiet” worship extend to everywhere for praying coaches.
Justice Neil Gorsuch opens his opinion in the case by explaining that “Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks.” This should have been considered an intimate moment between a man and his God, the opinion continues, because “Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise occupied.” This sleight of hand sounds superficially plausible only because Gorsuch focuses his entire attention on just three distinct football games, as opposed to a pattern of years of public prayer with students in public places.
But no matter where he prayed, coach Kennedy’s prayer was private and entitled to solicitude from the state. As the Washington Post’s Paul Waldman noted, Gorsuch used the word quiet 14 times to characterize Kennedy’s postgame public prayer circle. And the word private appears more frequently in the Kennedy majority opinion than it does in the Dobbs opinion. It says a lot about the new far-right supermajority that the sphere of personal privacy and dignity travels with men wherever they go, from the locker room to the middle of the football field, whereas there is quite literally nowhere a women can hide, once she is pregnant, from the state’s interest in regulating her if it so chooses. For a man, church is everywhere, and for a woman, there is no sanctuary.
But there’s more. The majority contends that Kennedy’s spiritual life is so all-encompassing, so intrinsically linked to who he is, that he literally cannot be asked to move through the world without expressing it, indeed by performing it publicly. To ask that his quiet, private prayer in fact take place in private is religious discrimination. All the coach seeks to do, writes Gorsuch, is “engage in a sincerely motivated religious exercise. The exercise in question involves, as Mr. Kennedy has put it, giving ‘thanks through prayer’ briefly and by himself ‘on the playing field’ at the conclusion of each game he coaches.” Indeed, Kennedy refused to accept any of the accommodations offered by the school district that would have allowed him to pray in private—because his privacy goes wherever he goes. The 50-yard line was his intimate spiritual place because he believed it was.
If the holding in Kennedy means anything, it means that the religiously sincere coach at a public school has been given free range to determine his own sphere of privacy by the court, up to and including private prayer that can only take place in public. Alito, concurring separately in Kennedy, claims that such prayer is a “private activity,” presumably unlike pregnancy, per his opinion in Dobbs.
In Dobbs, not only are women of reproductive age denied the personal freedom Kennedy enjoys to claim privacy wherever he goes; they are also denied his spiritual liberty. They are given no spiritual authority over their own bodies. Even their personal, private spiritual values are trammeled by the state’s theologically driven interests in “potential life” and “fetal life” and “personhood.” The state’s zone of religious control swallows the spiritual preferences of the mother herself. Whatever her own religious beliefs may be, they are immaterial if she lives in a state that claims that personhood begins at conception. If Kennedy’s very body is a church that travels wherever he goes, a Mississippi mother’s body is not even her own spiritual domain. As she moves from state to state, from public to private, she is a potential crime scene, in which her beliefs and preferences have no relevance. The state may not place itself between a football coach and his spiritual life, but it can insert itself squarely between a woman and hers.
As the conservative supermajority that controls the Roberts court careens through the remainder of this term, take note of which types of people deserve “privacy” and spiritual dignity, and the right to be let alone, and which do not. Notice who is cast as a fully realized spiritual being, and who is denied a life worthy of religious expression. More and more these new definitions will track sectarian imperatives, archaic race and gender assumptions, and subjective ideas about religious sincerity. These inquiries will reinstate the most retrograde ideas about who matters and who doesn’t, what freedom looks and feels like for different kinds of people, who gets to move freely and confidently through the world, and who must live in fear of government restrictions. Women and people of color will not prevail in these new hierarchies. Alito’s new test freezes constitutional rights in 1868, a time when dignity and privacy followed only some people and eluded many more.