As anticipated, the Supreme Court of the United States overruled ROE V. WADE in its majority opinion on June 24, 2022. On this Fourth of July, 2022 - Independence Day celebration, I feel compelled to make a few observations regarding the Court's decision on DOBBS V. JACKSON WOMEN'S HEALTH (DOBBS) which overruled ROE V. WADE (ROE) and CASEY V. PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA (CASEY).
After reading the majority's opinion, I found it largely framed within the context of morality as demonstrated in the majority opinion's closing statement written by Justice Alito:
"We end this opinion where we began. Abortion presents a moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe (1973) and Casey (1992) arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives."
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I encourage all readers of this post to read the majority's opinion. To begin with ROE had its weaknesses. It could have been stronger on a woman's or mother's rights as opposed to what this Court's majority opinion called" a State's interests in the 'Pre-born.'" The ruling failed to explain what a State's interest might include and in what way a States' interests in the "Pre-born" outweighs that of a pregnant woman's right to choice regarding her body.
ROE could have and perhaps should have pointed out that the Fourteenth Amendment states that it is persons born in the United States or become naturalized citizens who have rights under the Constitution. Doing so would not have ended the debate regarding a fetus' viability as a benchmark for allowing or denying an abortion, but it would have cleared up that it is persons born who have Constitutional rights.
The viability of a fetus born prematurely is constantly evolving due to advances being made in medical science. Viability of a fetus to exist outside of woman's womb certainly raises serious ethical questions that require ethical and legal guidance. The Court in ROE and in CASEY addressed viability that recognize medical and psychological conditions that necessitate abortion being a legitimate choice a woman should be allowed to make under medical guidance regarding her wellbeing and in heart-wrenching cases where the well-being of child whose birth would result in a life of misery due to severe genetic deformity and cognitive impairment. None of these important issues are addressed in the Courts ruling on DOBBS.
THE MORAL QUESTION
What caught my attention, however, was the word "moral" that should be irrelevant when making a finalSupreme Court ruling. Justice Alito rightly admitted that it was not only very relevant in deciding DOBBS, but also determinant in overruling ROE when writing, "We end this opinion where we began. Abortion presents a moral question."
Morality is a subjective issue. As such, it is a largely understood as a personal or a religious matter. The Court does not exist to determine the morality of law, but rather its Constitutionality. The 1973 decision in ROE took abortion from being a back-alley or backroom life-threatening, unsanitary, and barbaric process for ending an unwanted pregnancy to being a safe medical procedures performed within certified clinics and hospitals by licensed medical doctors. Neither the earlier Courts' rulings in ROE and CASEY were attempting to base those decisions on a moral grounds but rather on the Constitution which in ROE established the right of a woman to privacy in matters pertaining to her person under the Fourteenth Amendment.
The question of whether the 1973 Court ruling in ROE is moral can be debated within religious bodies and personal conversations ad infinitum, but judicial decisions are based on the the applicability of the Constitution, not moral speculation. There are moral issues surround almost every decision the court makes, but the Court, to my knowledge, never specifically cites morality as a reason for making a ruling.
That the current Court's majority opinion admits its ruling was shaped by abortion posing a moral question exposes a severe lack of objectivity on the majority's part. By saying the majority viewed abortion as a moral question, in what way did the Constitution guide them in wading through that murky waters that question presents?
Where in the Constitution is the word moral found or morality discussed? Like God, morality is never mentioned.
By saying abortion is a moral issue did the majority mean to say they didn't have a sincere interest in weighing into it as such, as implied by remanding the question back to the States? If so, then why not dismiss DOBBS from the start?
Or is it a case that the conservative justices on this court are so enamored with the Constitution being a dead document, that they are loathe to cite the Constitution itself in overturning ROE and therefore had to rely on spurious moral arguments and the existence of current political views that support their doing so?
For conservative justices to posit an argument against ROE on the fact that abortion is not specifically addressed in the Constitution and to then fundamentally base their arguments for doing so on the spurious premise of quelling the moral divisiveness ROE created is blatantly hypocritical. To then introduce another term not found in the Constitution, "the Pre-born" and attach it the the vague notion of a State's interests the "Pre-born" is (to use the majority frequent go-to word) an "egregious" error. While in a number of States abortions will end and Planned Parenthood facilities shuddered, the divisiveness will not end and is likely to take on new life.
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There are tremendous pitfalls in attempting to legislate morality. We, in the United States, only have recall the Prohibition Era, the War on Drugs, and War on Crime to understand that morality cannot be legislated. To outlaw something ultimately places whatever is outlawed out of reach of the law to do anything constructive to mitigate illegal behavior beyond locking offenders up.
Most democratic republics have learned their lesson in trying to legislate morality by focusing their laws on ethical approaches when it comes to dealing with what are considered personal moral misconduct. In most democratic republics law enforcement sees their primary duty to help people rather deal with personal issues than lock them up for moral transgressions. It is no wonder the United States has the highest incarceration rate of any nation in the world.
We, in the United States, are poised to start locking up women and doctors thanks to the moral and obvious political inclinations of this court. One is left wondering if this Court is attempting to reinstate a modern day version of the 15th century Spanish Inquisition.
It does not take a stretch of the imagination to understand the effect this ruling will have on women of color and the poor in particular, in spite of the majority opinion's argument to the contrary. While the majority's opinion will hold for a long time, time itself will tell if this Courts' conservative inclinations serves to preserve elected conservative official's positions at the local, state, and federal levels when elections are held in the next decade or so.
HIDING BEHIND A TOMBSTONE
Conservative members of the current Court are largely adherents to The Dead Document doctrine, which was promoted by the late Justice Antony Scalia. This fallacious doctrine basically states the Constitution's meaning cannot change over time, as it was meant to impose rigid rules that cannot be altered except through constitutional amendment.
The trouble with this fallacy is that legislative bodies make laws that run up against the Constitution; such as a Texas law did in ROE. If the Court cannot apply what is written in the existent Constitution to laws made at every level of government within this country because said laws utilize terminology not found in the Constitution and would necessitate that Congress and State legislatures make and ratify Constitutional amendments that address such language before the Court can do so, do we need a Supreme Court?
The very existence of the Court elucidates the framer' s intent that the Constitution be treated as a living document that is not only amendable by legislative process but also is to be applied and clarified by judicial proceedings of the Court as the situation and times require when laws are brought into question before it. The Dead Document Fallacy only serves to eviscerate Constitutional processes in order to provide a tombstone for conservative judges to hide behind when overturning laws and previous court rulings based on vague moral and conservative political perspectives of the time rather than the Constitution itself.
STARE DECISIS
Much of the majority's opinion waded through history as most Court opinions do. Tradition and historical reviews often play a role in helping the Court to understand the issue brought before it, but rarely does history or tradition dictate how the Court rules. The majority's opinion in ROE also engaged in historical research of laws and tradition. The opinion in DOBBS spent an inordinate amount of time doing so to establish that the judicial principle of stare decisis does not apply to the 1973 Court's opinion in ROE. Stare decisis is the practice of respecting and following previous rulings of the Court unless such rulings are later found to violate some judicial process. It is important to note the Chief Justice Roberts upheld the principle of stare decisis regarding ROE and dissented its being overruled.
The majority's opinion placed emphasis on 16th, 17th, and 18th century English laws regarding abortion. It gave particular attention to a section on abortion found in the English jurist and judge William Blackstone's Commentaries on the Laws of England (7th edition 1775). Blackstone made a rather interesting application of murder laws to determine criminal intent in a case in which a person is killed by accident due to the suspected murderer's intent to kill someone else but accidentally having killed someone else. Regardless whether the person killed was the intended victim, because murder is a crime, killing an unintended victim shows criminal intent. Blackstone made a comparable conclusion of a physician giving a woman a "potion" to abort a fetus which ends up killing the women would also constitute intent to commit murder, not because the physician intended to kill the mother but because abortion itself was against the law, even though the crime of abortion might have been treated as a less punishable offense.
It is ludicrous to think that an 18th century English understanding of law regarding abortion is being cited as a reason to deny stare decisis' application in ROE. Such reasoning in DOBBS is disturbing as it may justify States which are already intent on making abortion not only a crime but also a capital offense.
PHILOSOPHY 101
The majority's opinion then ventured on to eviscerate CASEY by engaging in semantic arguments over terminology found in 1992 Court's opinion. In particular it took issue with terminology, such as, "undue burden," "substantial," and "unnecessary" to say that CASEY was too vague in the use of these terms by failing to define to what extent a burden was undue, how substantial is substantial, or necessarily why something is consider unnecessary.
Instead of pursuing the naivety of their semantic quibbling, I will only say that any first year philosophy student is likely to understand that the use of descriptive terminology (adjectives or adjectival phrases) in law is defined by the situation in which it is applied. The Court in Casey could not possibly have addressed the multitude of issues and contingencies that would meet the condition of being an undue burden or rising to the level of being substantial or unnecessary. These are undoubtedly debatable terms that must be weighed against the evidence pertaining to a specific case. The legal profession exists for this reason to define when such terminology has merit. Such terminology in legal documents offers legal parameters to determine a law's applicability. Such terminology is common language found in most court rulings. Are we to assume that going forward, this conservative Court will abandon the use of these terms in future opinions?
EMULATING PILATE
As expected, the majority opinion in DOBBS attempted to avoid blood stains on its hands by overruling ROE by leaving it up" to the people and their elected representatives" to bloody their hands by killing it through their State's trigger laws. Some States will allow abortions to continue and be protected for the time being. In other States they are prepared to make all abortions a capital offense which would then exceed the punishments or having or performing and abortion in 16th and 17th century England.
If, as the majority opinion in Dobbs claims, ROE divided the nation, it is hard to see how leaving it up to each State will lessen divisiveness in this country. In fact, this conservative Court shows little interest in attempting to "form a more perfect union," upon which the Constitution premised. The majority's opinion risks throwing this nation back to what it was prior to the Civil War.
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In 1973, the majority in ROE understood the firestorm it would create amongst the religious entities, given the stance the Roman Catholic Church had taken against all forms of birth control, a position other Christian denominations also shared. Nevertheless, it demonstrated the courage to apply the Constitution to overturn a state law that violated a woman's constitution rights.
While acknowledging the historical treatment of abortion, the 1973 Court recognized we are living in far different times in which women had been given their voice in the right to vote and in recognizing that women are contributors to the well-being of this nation not merely as mothers and housewives but as individuals who have a Constitutional right to be treated as such; to make choices regarding their lives and their bodies and to be afforded the same rights as their male counterparts under the Constitution. In doing so ROE set a precedent for the importance of individuals to make personal choices regarding their lives and their bodies.
Independents and Libertarians, in particular, should take note that the Court's majority opinion in DOBBS ironically sets the stage for interfering in peoples personal lives based on moral principles that are not established in the Constitution. While the majority's opinion in Dobbs cited numerous judicial decisions unrelated to the topic of a woman's right to choose in order to deprive ROE of its stare decisis status, it virtually made no reference to the Constitution itself in overruling ROE and why a woman's right to privacy and making personal choices is contrary to the Constitution, apart from abortion not being mention in the Constitution itself. Their failure to do so is not only damaging to the integrity of this Court but also to the Constitution itself, and more importantly to the concept of liberty.
DENYING CHOICE
While the topical issue in DOBBS was abortion, abortion only serves as a cover for what is really at stake in this Court's majority opinion. That abortion is medical procedure is not really being questioned as the Court allows for States to make laws regarding it as they see fit. That life begins at conception has never been an issue nor was denied in either ROE or CASEY as obviously demonstrated in their respective discussions on the viability of that life during various states of a pregnancy. The core issue in ROE, CASEY, and DOBBS is a woman's right to make personal choices regarding her body and her life.
While the majority's opinion in DOBBS claims that their ruling will not have application in deciding other cases that are likely to be brought before them, like Gay Marriage and LGBTQ+ rights, Justice Thomas, on the day of the Court's majority opinion being promulgated, offered a public dissent to that statement in advocating that Gay Marriage and Rights should be brought before the court for the purpose of overruling previous Court rulings that secured such rights.
The majority's opinion in DOBB has set a dangerous precedent by which the rights of individuals to make private choices regarding their personal lives can be overruled on moral grounds alone. If personal choice regarding one's personal life and life-style can be denied on moral grounds alone, liberty no longer exists in these United States.
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Until next time, stay faithful.
Norm
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