I have (finally) read through both with my trusty highlighter. I likely won’t discuss New York v. Bruen. It wasn’t as interesting as I had hoped.
On the other hand, Dobbs v. Jackson was both dense and interesting. It will be a while before I plow through another Supreme Court Decision. So let’s dive in:
Overview: You have to give me props for reading and commenting on a judgement when I never attended law school. Then again, neither did Thomas Jefferson or Abraham Lincoln. I welcome feedback as long as it is thoughtful and not obscene.
- The majority opinion was written by Justice Samuel Alito. It was clear to me that despite his testimony that the 1973 Roe v. Wade opinion warranted respect he didn’t give it much. Much of it appeared (to me) to have been written a while ago. The state of Mississippi prohibited abortion after 15 weeks gestation; it did not ask that the states have final authority or that Roe be overturned. But Justice Alito went far beyond the facts of the case to overturn Roe. Law students are taught to find the narrowest ruling on a case.
- He wanted to place his opinion in the vaunted arena with Brown v. Board of Education. In 1896 the Court ruled in Plessy v. Feguson that public places could be segregated (separated by race) as long as the accommodations were “separate but equal.” In 1954 the Brown decision recognized that separate was never equal and segregation was unconstitutional. Brown was seen universally as correcting the mistake of Plessy. In the same way Justice Alito felt that Roe was wrongly decided from the start and he was correcting a previous mistake.
- Justice Alito and many of his fellow conservative jurists describe themselves as “originalists,” that when deciding a Constitutional issue we should look back to the original intent of the Constitution’s framers. This view presents a few problems, including this: the Constitution enshrines slavery (Article 1, Section 2, Clause 3). They respond by pointing out that the 13th and 14th Amendments prohibit slavery. In this context Justice Alito goes back to 1791 (when the Constitution was ratified) and 1868 (when the 14th Amendment was passed). But in the years since courts have had to adjudicate all sorts of issues that didn’t exist then. The 4th Amendment protects our “persons, houses, papers and effects” from unreasonable searches and seizures. But the courts have extended that to include our phones, cars, and computers. The 2nd Amendment ensures the existence of a “well regulated militia” but in 2008 (District of Columbia v. Heller) the court ruled that anyone could keep a firearm in his home for protection. Those of us who are not originalists see the Constitution as a living document and while the understanding of 1791 and 1868 matter, they do not hold supremacy.
- Lest you think this is an anti court screed, allow me admit to one of Justice Alito’s points. When Justice Blackmun wrote Roe in 1973 he divided pregnancy into three trimesters with different government interest in each. Since then we’ve looked at viability (when the fetus can reasonable live outside the womb). But the trimester distinction is a legal and not medical metric and viability has changed over the years. I don’t believe this should rule when an abortion is legal. That said I think Justice Alito overreached in his decision.
- Finally, I conclude this with a warning. When the decision came down that the right of abortion is not guaranteed by the Constitution it led to concern that other similar issues (marriage equality, consentual sex and access to birth control) may also come under scrutiny. All these issues were decided by the Supreme Court. Lest you think I’m exaggerating, this is what Justice Thomas wrote in his concurring opinion: “[I]n future cases we should reconsider all of this Courts substantive due process precedents including Griswold, Lawrence, and Obergefell. Conservative government entities may look at this as encouragement to overturn those decisions. Interestingly, Justice Thomas (who is black) is married to a white woman, and he did not include the court’s prohibition against interracial marriage in Loving v. Virginia.
- Both sides acknowledged that Roe held particular respect as a previous decision; the phrase in these circumstances is Stare decisis, “to stand by those decided.” The dissenting opinion (written by Justice Stephen Breyer) argued that Roe was not a mistake and should not have been overturned.
- The minority argued that Roe ensured that a woman has autonomy over her body and her health. Just as the government has no authority over a man’s body and health, so too with women. The fact that only women can become pregnant does not give additional government oversight to them.
- Roe has been in effect since 1973 (nearly 50 years) and in that time women have been able to make important and permanent decisions over their lives (e.g. sexual activity and marriage). Changing the rules now places an unfair burden on women.
- Roe also protected the private relationship between the woman and her doctor. She has a reasonable expectation of privacy and overturning Roe places someone else in the room.
- Previous to Roe abortion was available if the woman resided in the state where abortion was legal or if she had the ability to travel. This discriminates against women who live in states that prohibit abortion and are not able to travel.
Again, I recognize my lack of legal training. On the other hand I did read the whole thing. So here’s where I stand.
Two facts make this difficult: only women can become pregnant and we’ve never come to a consensus when a fetus becomes a person. For centuries many believed that life began when the woman could feel the baby’s movement in her womb. Scientific advances in the last century have only made things more difficult: the phrase “life begins at conception” ignores the fact that conception is a multi step process and we continually learn more about it. Pregnancy is a process and finding a fixed point where life begins continues to prove elusive.
When we think about women who seek abortions it’s too easy to label them as murderers. But by and large they are women who find themselves pregnant and believe that abortion is the only option left. Simply put, the best way to prevent abortions is to prevent unwanted or unplanned pregnancies, and we know how to achieve this. We need to teach sex education in schools and make birth control much more available. We need to teach young women that they can say no and we need to teach young men that they need to take responsibility for their actions.
I have several friends who describe themselves as “oops babies,” in other words they were unplanned but not unloved. They had the good fortune of being part of a family that could afford them (financially and emotionally). This is complicated but the more services we provide to these families the better.
Finally, despite anything you may be thinking, I am 100% pro life. I see abortion as a tragedy but allowing the courts to decide on this just makes it worse.
Thanks for reading.