Think and Understand before you React

 In deciding Dobbs v Jackson Women’s Health Org. today, the Supreme Court did nothing more than read the Constitution and enforce it.  That is, the Court did its job.

Dobbs v Jackson Women’s Health Org. holds: “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”

The Constitution provides specific rights to the people and protects those rights from the government.  It establishes specific federal powers and ensures that those “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” (10^th Amendment to U.S. Constitution)

The Constitution is neutral on the question of abortion – neither pro-life nor pro-choice.  It does not address abortion and as such leaves to  the people the question of whether and to what extent a right to abortion exists.

As Justice Kavanaugh stated in his concurring opinion in Dobbs, the Constitution does not prohibit the establishment of additional rights, but those not found in the Constitution cannot be created by the government nor by the Court, but rather must be created by the people through their representatives.

The Justice wrote:

In arguing for a constitutional right to abortion that would override the people’s choices in the democratic process, the plaintiff Jackson Women’s Health Organization and its amici emphasize that the Constitution does not freeze the American people’s rights as of 1791 or 1868. I fully agree.  To begin, I agree that constitutional rights apply to situations that were unforeseen in 1791 or 1868— such as applying the First Amendment to the Internet or the Fourth Amendment to cars. Moreover, the Constitution authorizes the creation of new rights—state and federal, statutory and constitutional.  But when it comes to creating new rights, the Constitution directs the people to the various processes of democratic self-government contemplated by the Constitution—state legislation, state constitutional amendments, federal legislation, and federal constitutional amendments. See generally Amdt. 9; Amdt. 10; Art. I, §8; Art. V; J. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law 7−21, 203−216 (2018); A. Amar, America’s Constitution: A Biography 285−291, 315−347 (2005).

So, before you run out to celebrate or protest that “abortion is now banned” (which is not the result of Dobbs) you might be wise to actually read the Constitution and also read the incredibly thoughtful opinions that together make up the 6-3 decision in Dobbs.  Those opinions explain thoroughly and clearly the sound reasoning behind the Court’s decision.  

         

                     

A link to the full U.S. Constitution and its Amendments can be found here:  US CONST 

A link to the Dobbs decision can be found here:  DOBBS 

The point is, that the rules about abortion are up to the states.  In each state the people, through their representatives, can enact rules and regulations.  Such rules and regulations are for the people and not the Court to create.  In our democracy this is how the voice of the people works and it is how we retain and maintain our government of/for/by the people. 

The voices of those who care about abortion issues should be directed to their state legislatures.  As noted in the Dobbs opinion, the various states have always had differing opinions and rules about abortion, and that is likely to continue following this overturning of Roe.

This democratic process works, even if more slowly than some would like.  It protects us and it is the best form of government that you will find.  So, before trying to destroy it, its Constitution, and its institutions, before trying to radically change to some other governing process, take the time to understand what you already have, because you may not know what you had until its gone. 

Equal Rights are not Special Rights

I listened to the entire Supreme Court argument in Dobbs v. Jackson Women’s Health last Wednesday.  You can listen to the recording here – DOBBS RECORDING  or read the transcript here -TRANSCRIPT. 

I have no intention here of going through/evaluating all the arguments or predicting outcomes.  Many commentators have already done that and you also can listen/read the above and make your own judgments and predictions.

After making a few brief comments I simply want to focus on the idea of the woman’s right itself, as it struck me from the arguments of the Respondent and the Solicitor General.

As to the few short observations – I thought the attorney for the Petitioner State of Mississippi was outstanding.  Regardless of one’s biases or feelings about the case, he was a fine example of what should be expected of anyone arguing before the Supreme Court.  He was incredibly well prepared, thoroughly knew and understood the relevant law and facts as well as the policy arguments involved.  He listened to the Justices’ questions and concerns, answered their questions, and presented a persuasive case for his client.

I found the other attorneys, while polished orators, to be less prepared and less able to actually answer the Justice’s concerns.

I was impressed with all but one of the Justices.  Eight seemed to ask fair and important questions that were designed to help them to understand aspects of the case or the arguments so as to better render an appropriate decision.  I was disappointed in Justice Sotomayor who seemed to be unnecessarily biased and argumentative in her questions during this argument.

But one thing that struck me about the arguments of the Respondent Jackson Women’s Health and the U.S. Solicitor General were the seeming reliance on some sort of special equality held by women.   These attorneys were arguing to uphold Roe v. Wade and to strike down the Mississippi law banning abortion after 15 weeks. 

These attorneys argued that women have a fundamental right to abortion.  When asked what this specific right is – where it is or arises from in the Constitution, they repeatedly referred to “liberty.” If one cuts through all the chaff, their argument seems to be that while we all have a right to liberty, women have a special right within that which allows them to terminate the life of another, at least until that life becomes viable outside the womb.

Now last time I read our Constitution, it provides and demands equal rights for all citizens, not different or special rights for one group or another.  Yet what their argument does is to take the liberty right from the unborn child, giving it no rights at all, and then adding that child’s rights to the woman’s liberty right, giving her some sort of super right.

A woman’s right to control her own body is not a special right, but one that exists for all of us (mandates not withstanding).  But when that right includes the right to take another life as abortion does, it becomes a special right.  Giving women the right to take away the right of another in essence gives them a super-equality; an “equality” that is more than the equality of others.  That flies in the face of the demands of our Constitution and our core principles of equality and liberty for all. 

The weakness of this pro-abortion argument exemplifies the underlying weakness of the Roe v. Wade decision and of the assertion that a woman holds the right to choose not only what happens to her life, but to the life of a separate individual in her womb.  If the woman’s right is based on liberty, it is also a denial of liberty to another.

Other arguments were similarly weak:  for some reason it is, in the mind of the respondent and the DOJ, acceptable that a woman’s right to abortion may be curtailed after the point of viability (somewhere around 24 weeks) but 15 weeks is too early.  Their reliance on the difficulties faced in raising a child were cut short when Justice Barrett reminded them that a woman could give up a child for adoption almost immediately after birth, thus avoiding the alleged harm of parenting.

They also had no real answer to why this question of right to abortion,  not set forth in the Constitution, should be decided by 9 Justices rather than by the people or their legislative representatives.  They asserted it was because those 9 had, in Roe v. Wade, said it was a right.  This circular reasoning does not answer or prove why those 9, not the people, should decide whether that right exists and if so to what extent.

The arguments of Respondent and DOJ simply were not convincing.  They asserted a right exists which puts the women’s rights, her equality, above others, but couldn’t explain precisely what this right is or where this right came from other than a Court decision.  They couldn’t explain why it is necessary that women be granted a special right, giving them some sort of greater liberty or super-equality.

And, when it came to the question of whether the Court should re-examine and possibly overturn Roe v. Wade, they argued no, primarily based on nothing more than that the case and its created right to abortion has been around so long. 

Indeed, there was much questioning about whether the court should touch the Roe ruling, especially with the strong political split about a woman’s right to abortion.  Is it some super case that the court cannot touch?

The State’s attorney analogized to the overturning, after 58 years, of Plessy v. Ferguson, the case that created separate but equal, by Brown vs. Board of Education, the case that ruled racial segregation unconstitutional.  In his rebuttal he stated:

In closing, I would say that in his dissent in Plessy versus Ferguson, Justice Harlan emphasized that there is no caste system here. The humblest in our country is the pure, the most powerful. Our Constitution neither knows nor tolerates distinctions on the basis of race.  It took 58 years for this Court to recognize the truth of those realities in a decision, and that was the greatest decision that this Court ever reached. We're -- we're running on 50 years of Roe. It is an egregiously wrong decision that has inflicted tremendous damage on our country and will continue to do so and take innumerable human lives unless and until this Court overrules it.

Just as Brown v. Board, while focused on race, demanded recognition of true equality, so it is crucial that our current Supreme Court also focus on the equality demanded by the Constitution.   Neither women nor any other group should be granted super-rights or super-equality.  And especially not at the expense of the liberty and life of another human being.

Roe v. Wade is not protected from overrule.  If it is Constitutionally proper to overrule it then that is what should be done.  As Chief Justice Roberts noted, no matter how the Court decides, it will likely be charged with political bias in its decision.  So let us hope that they, like the Justices who decided Brown, have the courage to do what the Constitution demands, no matter what the political fallout may be.