“I am increasingly persuaded that the earth belongs exclusively to the living and that one generation has no more right to bind another to its laws and judgments than one independent nation has the right to command another.
--Thomas Jefferson
 |
| Justice Harry Blackmun |
One of the wonderful things about living in the 21st century is you have at your fingertips information which when I was in college could only be dug out of stacks in the library and even then with much time and effort.
I have just plowed through the 130 page opinion from Justice Alito which informed me that there is no "right of privacy" mentioned in the Constitution, nor is the word "abortion" ever mentioned and so there is no way the Supreme Court should ever have found that a right to privacy insured that any American woman could choose to have an abortion.
Abortion, Justice Alito tells us, is not a matter of law, but is a matter of policy and as such the Supreme Court of 1973 had no business meddling in this controversial area which should have been settled by the people's elected representatives, and in fact, at the time of Roe v Wade abortion was illegal in "most states." (It was legal in New York, Hawaii and some 4 others I haven't been able to identify so far on Google.)
Justice Alito tells us that the whole construct of Roe, which set up a line at 24 weeks as the line where abortion crossed over to infanticide was a legislative sort of scheme and judges had no business getting involved in that sort of line drawing.
 |
| Looking Like A Baby Does Not Make It A Baby |
Justice Thomas, in his concurring opinion, notes candidly that because Roe was based on this erroneous argument that abortion rights are based on a right to privacy, which is not in the Constitution and on a notion of liberty which is not in the Constitution, i.e., the liberty of a woman to decide for herself whether to carry a child to term, that all the other cases which were decided on these tenets of privacy and/or liberty should now be reconsidered, and he invites cases to undo all the cases so "egregiously" wrong, like the cases which struck down the laws forbidding contraceptives to married and most especially to unmarried couples, laws outlawing gay sex and gay marriage. To carry it further, judicial usurpation of what should have been decided by elected representatives of the people, like Brown vs. Board of Education which forbade local laws, states from segregating schools into black and white were wrongly decided because the judiciary, namely the Court, instead of the Congress decided.
 |
| The People's Representatives |
Justice Kavanaugh, in his concurring opinion gets a little nervous about all this because he knows that if you stick to the argument that only rights which are "enumerated" in the Constitution you will get into trouble down the line. He foresees, for example state laws which forbid a woman travelling across state lines to get an abortion in New Mexico. The right to cross state lines is not an enumerated right in the Constitution, only the right to do interstate commerce. So he specifically tells us the Court should not say what Thomas said in his opinion, that gay marriage is now on the chopping block, nor should contraceptives be, nor inter racial marriage, nor should any law which prevents travel across state lines to get an abortion. Kavanaugh says abortion is a moral issue not a policy issue, whatever that means.
Chief Justice Roberts wrings his hands, saying the Court could have allowed the Mississippi law to stand because all it did was reduce the line Justice Blackmun drew in Roe from 24 to 15 weeks gestation and most women know if they are pregnant by 15 weeks, so no biggie. The clear implication is if a woman is so stupid that she cannot make up her mind by 15 weeks, she ought not be allowed to abort her fetus/baby. Roberts says he knows this decision which says the Court as no business getting involved in establishing rights which are not specifically mentioned in the Constitution is too "broad" and if the Court had just stuck to the Mississippi case the outcome would have been less of a jolt.
"The Court's decision to overrule Roe and Casey is a serious jolt to the legal system--regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling and nothing more is needed to decide this case."
 |
| Images Are Not Reality |
Of course, Justice Roberts says the line Roe drew came "out of thin air" and that the Court had no business drawing such lines but then he draws one of his own: "That line never made any sense. Our abortion precedents describe the right at issue as a woman's right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further, certainly not all the way to viability."
So far, I'm only a little appalled. You know, I can see what these dinosaurs are saying: America, if you want abortion rights, go ahead and vote for them, but don't ask this Court, which is, after all, unelected, to settle this dispute for you. All we can do is call balls and strikes, but this one has nothing to do with the strike zone. You have to make up new laws, likely in each state, or possibly in the national Congress, and once you tell us where the strike zone is, we can call balls and strikes.
But then I read Justice Breyer's dissent. The dissent is signed by Justices Sotomayor and Kagan as well, but having read some opinions from these justices, I think I hear Breyer's voice. I could be wrong.
Breyer says that the Constitution was written by men in 1789 and the 14th amendment in 1868 and the men who wrote these rules knew that life would change in the future beyond their capacities to imagine and they kept their language general for that reason.
 |
| Antiabortion v Abortion States |
He goes through the reasons Roe was decided as it was, and we'll come back to that but the knockout punch occurs on page 6 of his opinion, "The Court reverses course today for one reason and one reason only: because the composition of this Court has changed."
Just in case you missed that right to jaw, he follows with a left cross: "Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law."
In case that got past you, what the Justice is saying is this Court was selected to overturn Roe and to allow state and federal laws to ban abortion. They prejudged the case and extended it, as Roberts admits, beyond the case from Mississippi, to be sure abortion can be banned by state law and they knew as they wrote it 26 states had laws to ban abortion which would kick in to make it illegal, so their decision was virtually a decision to ban abortion in over half the states.
Breyer makes a straightforward argument: Cases like abortion have no clear cut law to examine. They are outside the Constitution because the framers could not imagine this problem and never addressed it directly. Oh, sure there were laws concerning abortion scattered about America and going back to England but none of them really addressed it so directly. In fact, these laws had to do with line drawing, just as Blackburn did in Roe, and "quickening" when the mother could first feel the fetus move was a common point at which to say, "Okay, it's alive." So, when you have no specific words, like abortion, then the Court has to draw lines and the key line here is when does life begin.
 |
| 22 weeks |
In that sense, the case is like the Dred Scott case: Does the fetus have standing, and if so when? In Dred Scott's case, the Court said since he is property he cannot be a man and only men can sue in court. In Roe, the Court said, once the fetus passes the mark where it is more realization than potential, its right to live supersedes its mother's right to abort it. Very much a King Solomon solution.
 |
| 8 weeks |
Addressing the "But it's not in the Constitution" Breyer says there are precious few rights which are enumerated in the Constitution; most are implied or derived from others.
"The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, "there was no support in American law for a constitutional right to obtain [contraceptives.] So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid 19th century are insecure. Either the mass of the majority's opinion is hypocrisy, or additional constitution rights are under threat. It is one or the other."
Breyer looks back on the Court's decisions which struck down segregated schools, public accommodation, water fountains and says, "We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public opposition, we uphold the right of individuals--yes, including women--to make their own choices and chart their own futures. Or at least, we once did."
The Court and the Constitution tell you what you cannot vote on.
This Court says, basically you can vote on anything, unless it is specifically called out by name, like slavery (involuntary servitude.)
Leading up to this, Breyer noted that when the 14th amendment was passed in 1868, women did not have the right to vote and were legally, almost chattel belonging to their husbands. With contraception and abortion women have been able to control how many children they will raise and that has liberated them, given them "liberty" to control their own lives, and the lives of their families.
He also notes that the originalists, who drive the Dobbs case say "abortion" is nowhere mentioned in the Constitution; well, neither is the word "marriage." And yet, "The Court was "no doubt correct" to protect the freedom to marry "against state interference."
As Breyer notes, "That fact--the presence of countervailing interests--is what made the abortion question hard, and what necessitate balancing. The majority scoffs at that idea, castigating us for "repeatedly praising the 'balance' the two cases arrived at...To the majority, 'balance' is a dirty word, as moderation is a foreign concept. The majority would allow States to ban abortion from conception onward because it does not think forced childbirth at all implicates a woman's rights to equality and freedom...The Constitutional regime we have lived in for the last 50 years recognized competing interests, and sought a balance between them. The Constitutional regime we enter today erases the woman's interests and recognizes only the State's (or the Federal Government's.)
He goes on to attack the idea that the Constitution is like the Bible, all answers are in it and that means it is not a living document.
"If the ratifiers did not understand something as central to freedom, then neither can we. Or said more particularly: If those people did not understand reproductive rights as part of the guarantee of liberty conferred in the Fourteenth Amendment, then those rights do not exist...The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to specific practices existing at the time. Instead the framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framer's invitation. It has kept true to the Framer's principles by applying them in new ways, responsive to new societal understandings and conditions...And nowhere has that approach produced prouder moments, for this country and the Court...The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply. "
.jpg)
