My interest in the recent ruling by the Supreme Court on Dobbs v. Mississippi which overrules Roe v. Wade was focused not only as a personal historical event. But as driven by my wife, Rhonda, to whom Roe and Dobbs were major events affecting her life. She wanted answers, knew of my penchant for research, and capitalized on it.
To understand the issues at hand, abortion, and women’s bodily autonomy, one would have to have a better historical understanding of Roe and the legal issues surrounding the case. First and foremost, Roe v. Wade is a legal case brought from Texas. Wade in this instance is Henry Wade the District Attorney for Dallas County. Roe is fully known as Jane Roe, a pseudonym for the actual appellant. Also, Roe wasn’t decided alone. It was decided alongside another similar case. Roe also had additional plaintiffs, both of which had no standing before the Supreme Court, therefore Roe had to proceed alone.
The timing of Roe is also important. It was decided in January of 1973. This was a tumultuous time for women and women rights in the United States. Only a dozen years earlier (1961) in Hoyt v Florida the Supreme Court ruled women were a unique position “as the center of home and family life”. The ruling confirmed the Florida Constitution that prohibited women from serving on juries. Basically, saying that women belonged at home with the kids.
It was also a time when women fought to get their own credit cards. It wasn’t until 1974 that women gained the financial freedom to receive them with the passage of the Fair Credit Opportunity Act. In addition, the Equal Rights Act which prohibited discrimination on the basis of sex had passed the house and Senate in 1972 and was sent to the states for ratification.
In summary, when Roe v. Wade was decided there were serious changes in how women were being treated in society. The attitudes, ideas, and concepts of women were in flux and changing for men and women. Perhaps in no greater ways or moments in time than then. For the first time in centuries women were being accepted and given the rights as equals to men. It’s also of note that at the time of Roe v. Wade, women of any sort had yet to take a seat on the Supreme Court. The decision was made for women by men.
The issue at Roe was not in and of itself abortion. In fact, the issue was the right to privacy. What was being challenged was governmental right to interfere or inject itself into the private affairs of men or women. It derived from a Connecticut law prohibiting the discussion of contraceptive aids and information to a married couple. The case known as Griswold v. Connecticut was decided in June of 1965. Yep barely 57 years ago married people, let alone couples, or single women or men could not get information on or use any contraceptive device.
Following that ruling Eisenstadt v. Baird was decided in 1972. In this ruling it was affirmed that single women could receive contraceptive information and devices. The court concluded that there was no rational basis between the needs of an individual or a married woman.
History is of singular significance in Roe and Dobbs. Indeed, stare decisis plays a major role in the determination of Dobbs. Stare decisis is Latin. In interpretation to English, it translates to ‘let it stand’. The legal implications are relative to precedent. In other words what has been decided (what goes before or precedents) should remain decided. Decisions by a judge or court should be as a boulder in idea and not to be overturned lightly and without special cause. If judgements were to be turned over at each new iteration of a judge or court, then legal judgements have no more matter than statutes or ordinances. Rulings by Courts or judges must be as if written in stone and carry the weight of governing principles such as a constitution.
Therefore, history bears significance in judicial decisions as many if not the majority of decisions are made on what has gone before. Included in those decisions are the historical reasons for the decisions that were made prior to the current decision. Societal norms, sciences, accepted beliefs at the time of the rendering of the decision are all considered when applying stare decisis or attempting to overturn stare decisis.
A very important point in this discussion is the point at no time has the Supreme Court ever stated that women have an unlimited and unobstructed ability to induce abortions. Even in Roe, the Courts held that there does come a time when the state has an interest in the unborn. In Roe this was established at 12 weeks. But that abortions could be done until 24 weeks under the supervision of the state.
Dobbs was not decided on privacy rights. Dobbs was decided on the narrower concept of abortion rights. Rights in which Roe conceded could not be defined due to the inability of religion, science, medicine, and governments all unable to define or reach a consensus of when the concept of life began. In Roe it was decided that if the beginning of life could not be defined then 1) the Supreme Court should not mandate it and 2) it was unnecessary to define the beginning of life to a make a judgement on the merits of the case. In Dobbs, Justice Alito, Justice Kavanaugh, et al abandon Roe and attempt to define life and therefore the concept of ending or ‘aborting’ that life. Unable to functionally able to do so, they then under the auspices ‘democratic determination’ return that definition to the separate states. In the process they ignore the constitutional and common law fundamental right of privacy afforded women to make those individual determinations.
In Dobbs v. Mississippi (Dobbs) the initial filing to the Supreme Court was a contesting a ruling by Federal District Court that abortions could not be performed after 15 weeks of gestation. The Federal District Court had held that the establishment of a 15-week restriction was in violation of the Supreme Courts previous decision that abortions must not be prohibited before viability of the fetus. In effect the Mississippi law violated the due process rights of women seeking a pre-viability abortion at any time after 15 weeks.
Now many still feel that the standard created in Roe of 3 separate periods or trimesters determining the availability of abortion services are still in effect. However, in 1992 the Court reset the standards determining that the viability of the fetus was now the standard (Planned Parenthood v Casey). Which meant that if the fetus was viable, it could not be aborted. In addition, the court applied an undue burden standard to states where they could not institute undue burdens on women that may wish an abortion. Thus, prohibiting such requirements spousal notice.
In Dobbs the state of Mississippi disputed this standard. The state asked to have its arguments heard by the Supreme Court (they applied for certiorari or in layman’s terms appealed the decision and asked to have the court review the decision of the lower court). The court agreed to hear the arguments on whether all pre-viability prohibitions are unconstitutional. It is important here to note that the court initially only offered certiorari on the length of prohibitions, not on the constitutionality of abortions in total. Only after certiorari was granted was the argument expanded to include the right of abortions. It is difficult to understand whether this expansion of the argument was suggested by the state of Mississippi or by specific Court judges. In either event the expansion of the argument then put in peril the adjudged constitutional rights of women.
With the expansion of Dobbs to include the right of abortion itself, it allowed the Court to re-examine the foundations of the decisions of Roe and its companion case Casey. The justices in favor of Dobbs, specifically Judge Alito who wrote for the majority, immediately held that the Constitution does not confer a right to abortion. The judgement was based upon the determination that Constitution makes no mention of abortion. He is right it does not.
But as many have pointed out neither are railroads, cell phones, the Internet or multiple other ideas or words mentioned in the Constitution. Yet the Constitution is constantly used to regulate these concepts. It has been long determined that a word does not have to be mentioned in the Constitution to be regulated by it. The term used by Justice Blackmum in Roe to allow such regulation by the courts was penumbras. Penumbras is taken from astrology and in legal terms means within the shadow of the primary idea.
In Roe, Justice Blackmum noted that abortion was not specifically mentioned in the Constitution. But the concept of the right of privacy was strongly alluded to in the Constitution and a principle right in common law. He provided many examples of the right of privacy especially those rights held in the first, fourth, fifth and ninth amendments to the Constitution. Each amendment while not mentioning privacy could not stand without the implicit requirement of the concept. Justice Blackmun also quoted from a paper written in 1890 by no less than Samuel Warren and Lous Brandies that defined the concept of privacy.
With the concept of privacy explicitly referenced in the Constitution through a penumbras and through common law Justice Blackmum then concluded the penumbras of privacy had to include the right of abortion. Included in this evaluation is the historical reference of abortion throughout western European and United States history. In this evaluation Blackmum showed that abortion was a common practice in our history. Historical court cases constantly reviewed whether a child was aborted before or after ‘quickening”. Quickening as defined was the point in which a child moved in the womb. Usually, 12 to 18 weeks after conception. Until quickening, a fetus in the womb was not considered a baby or human. If a child was aborted before quickening, there was frequently no crime or criminal finding. If aborted after quickening it could be considered manslaughter or murder depending on the jurisdiction.
In comparison under Casey viability was considered the point at which a fetus could be aborted without state interference. This comports to the common and historical laws referencing quickening. It could be argued that quickening was in effect just a term for viability.
These concepts of quickening and penumbras are crucial when understanding the concepts of Dobbs. Justice Alito in his majority opinion in Dobbs uses the very same argument of quickening noted in Roe to come to the opposite conclusion of Roe and justify the elimination of abortion. He, like Blackmum notes that abortions were adjudged on whether the procedure was done prior to or after quickening. However, his conclusion to similar evidence as Blackmun is that whether the abortion was done before or after quickening there were still consequences for the actions. Even thought the consequences were absent or markedly lesser before quickening, there were still consequences.
In addition, Justice Alito does not rely only on evidence encompassing an era before the formation of the United States, he lists a number of state statutes criminalizing abortion from 1825 until 1952. However, in this listed set of statues there are numerous exceptions to the his claim of serious consequences pre and post quickening. In the referenced New York statute, only a quickened abortion requires a manslaughter charge. A child that is not quickened receives not more than a year in county jail or a fine not to exceed $500.00. A formidable consequence if fully applied, but not as serious by any definition as a manslaughter conviction.
It is noteworthy that each of these statutes were created during a time when all laws were made by white men. In the earlier laws these laws were made only by land holding white men. As referenced before, the times in which the laws are created are important. In this instance the laws were more often than not created to protect men, not women or their children. Women especially during the 19th and early to mid 20th century by law, deed, and society were not the equal of men. In many instances women were classified as little more than property.
There was however, a real societal and legal cause for men to avoid the scandals brought about by the results of unwanted children. Abortions were used quite frequently to resolve these issues. Many of the procedures often involuntarily induced in order to preserve personal inheritance or stature. These laws were created more in ensuring the rights or property of men than the rights of women or safety of children.
Understanding and clarity in the development of these laws is necessary as Dobbs reasons for rejection of stare decisis is the quality of the reasoning of the original text of Roe. The same standard must then apply to Dobbs. Dobbs relies on these early laws for its right to reject state decisis because it states Roe failed to even note the overwhelming consensus of state laws in effect in 1868. Justice Blackmum did consider these laws as opposed to Justice Alito’s assertions. He even referenced them in historical evidence of the right of states to have invested interest of the life of a fetus. It was the basis for his opinion that women do not have an unfettered access to abortion or to allow abortion on demand.
What Justice Blackmum did not do is use these laws to establish a precedent abolishing the right of abortions. He recognized the historical laws origins and the purpose of the creators. None of which considered the equality of women in their development nor even had women as consultants on their creation. Justice Blackmum recognized the quality of the reasoning of those laws as they affected the times he was living. Few if any of those laws had relevance in the current climate of the 1960’s through 1970’s. The justification by Justice Alito fails, for his quality of reasoning fails in light of his evidence’s irrelevance in the acceptance of women’s equality and body immunity in current society. His reasoning also fails in the light of current laws concerning inheritance or societal stature.
As for the penumbras of the right of privacy which Roe was based, Justice Alito gives little consideration. In his opinion he declares Roe did find support for a constitutional “right to privacy”. Justic Alito also holds this right still exists in lieu of his Dobb’s ruling. But he insists Roe conflated that right to make and implement important decisions without governmental interference. In other words, he held Roe gave greater weight to personal privacy over governmental interest than it should have. Basically, observing Roe provided too much authority to women, i.e. people, over government. Considering the ninth amendment to Constitution expressly conveys the rights of people to the people even if they are not enumerated in the Constitution, it is difficult to accept this analysis.
He justifies this declaration by stating that Roe’s opinion did not consider what is distinctive about abortion which is its affect on “potential life”. It is this instance is where Dobbs diverges completely from Roe and begins to try to define ‘life’ a concept both agree can’t be agreed upon. Roe allows a constitutional right of the individual to determine the concept, Dobbs depends on the will of the people through individual governments. I disagree with Dobbs. A constitutional right outweighs the rights of a majority. Rights of the minority cannot be usurped by the will of the majority. Justice recent rulings on second amendment rights confirm this belief.
Justice Alito also takes issue with Roe’s failure to justify the critical distinction between pre- and post-viability abortions. Justice Alito condemns this failure all the while stating in the next few sentences that such a distinction cannot be made. A distinction that Justice Blackmum agreed with in the original Roe decision and the reason such a distinction could not be codified in the decision. In this context Justice Alito is contradictory in his own analysis. The Dobbs decision based on the lack of distinction in Roe, therefore overturns Casey’s attempt to answer same by basing the right to abortion on the Fourteenth Amendment Due Process Clause. In effect rejecting all paths to viability of Roe and/or Casey based on a limited requirement of the lack of the term ‘abortion’ within the Constitution.
Justice Alito argues that at the time of Roe’s passage 30 states still prohibited abortion at all stages. He does acknowledge that just prior to Roe at least 15 states had liberalized their laws concerning abortion. Yet Justice Alito ends his analysis of then current affairs at this declaration. He does not explore the point that multiple states were in the process of changing their laws due to the acceptance of women as equals with body autonomy. Justice Alito does not acknowledge that the states that changed their laws were major changes in acceptance of abortion and a rejection of established law against abortion. He only points to those states that have not yet changed their laws at the judgement of Roe as evidence the majority of states and citizens at that time opposed abortion.
In his criticism of Roe and Casey, Justice Alito calls into question the ability of the rulings to end the national division over abortion. He points to the passionate and wildly divergent views on abortion still in existence. But he also does not acknowledge the general acceptance of abortion and women’s rights by a majority of the nation, particularly in the younger generations. Simply put, he highlights those screaming the loudest against abortion but not their numbers. Thus, allowing the measured minority of nation to determine the rights of the majority. It should be accepted by all justices that such a change in attitude towards the right of abortions would be generational, as is acceptance of women’s equality. The march, while ever slow in acceptance of abortion, has nonetheless been constant and growing. To reverse at this point based on prior decades of criticisms is to ignore established success of the decision.
Justice Alito in Dobbs relies heavily on prior law. Once again law created by men for men. In an era where women were considered property and did not have equal rights if any rights at all. But that is the established process of the courts for determining whether a right exists. It is accepted by the courts that a right must be deeply rooted in [our] history and tradition. But even when using prior law, the reasons for the creation of those laws must be considered. If a law no longer is or has relevance due to nature of its creation such a law should not be considered in the acceptance or rejection of a right. When the nation as a whole rejects the idea of second-class status of women and accepts the idea of body autonomy through words, deeds, and laws the application of prior laws in conflict with the new concept should be held suspect. This is not done in Dobbs. Only precedents and laws in conflict with acceptance of new established standards are considered.
In adopting Dobbs, the justices in majority attempt poorly to determine the ‘humanity’ of a fetus before viability or ‘quickening’. They note in Roe and Casey that such entities are considered ‘potential lives.’ However, other states call them ‘unborn human beings’. Dobbs uses this inability for a common definition to allow that each state should be allowed to define as they will and return the right of abortion and state interference in abortions back to the states. In that regard the majority justices believe the citizens in those states will have the ability to accept or reject abortions as their majority in each state sees fit. But that reasoning fails to accept the very realities of the decisions they have made in prior cases. Not the least of which is their failure to prohibit gerrymandering.
Just using the example of Missouri 41% of the state lean Republican, but 42% lean Democratic. Still there are only 2 Democratic districts in Missouri and 6 Republican districts. If gerrymandering was abolished the division of districts should tilt toward Democrat not Republican. The same applies to abortion laws. With gerrymandering the state legislature represents a minority not only in Missouri, but in many other ‘conservative’ states. With the use of these minority legislatures the will of the majority of the people of Missouri and other states are not represented. Quite often only the desires of the minority are represented.
In essence the court in overturning Roe and returning the abortion laws back to the states the court adopts a misconception of a full, free, and functioning democracy. This is a fallacy that does not exist. Since it does not exist the belief that the states can therefore establish the will of the majority of citizens on abortion also does not exist. Only the adoption of a nationwide standard on abortion such as Roe established will confirm an equality for all women in the debate on abortion and preserve a constitutional right.
In the final analysis of the Dobbs decision, it appears that Justice Alito and the majority are applying personal bias towards abortions instead of constitutional academic analysis. The decision looks as though justices are searching for justifications. They do not take into account that prior laws they present as evidence are laws made by men for men. They don’t consider the current issues of misrepresentation of populations in state and congressional legislatures due to unresolved issues such as gerrymandering. They do not consider the times prior laws were made and current laws were created. While discounting the right of privacy they attempt to apply unusable standards.
They discount the right of privacy saying it overreaches. While in subsequent paragraphs they insist traditional rights are embedded in the first 9 amendments. Then they agree the right of privacy is defined by penumbras in the first 9 amendments. Which by their own reasoning makes it a primacy and traditional right. Then they follow that analysis by elevating the lack of abortion being defined in the Constitution above the very right of privacy they agreed exists. Either the first nine amendments are primacy, including the right of privacy by penumbras, or they are not. The justices cannot have it both ways at the same time.
There are multiple errors and poor judgements within the Dobbs opinion. The justices deciding in favour of Dobbs did so in the belief it would end appeals on abortion to their offices. The poor framework of the decision will ensure that even more arguments will be brought before the court not fewer. It is expected that Dobbs, instead of being a landmark opinion such as Roe, will be left to the dustbin of history fully overturned by legislation, court rulings, and the general public.
There are numerous challenges to Dobbs, not the least of which is the challenge on HIPPA regulations. Dobbs has left the right of privacy intact. HIPPA regulation prohibit medical information from being provided to the state without a warrant. I can see some doctor or clinic challenging turning over information about a patient and a possible abortion based on HIPPA regulations.
As to what can be done now. Immediately President Biden can appoint four justices to the Supreme Court. Then leave it up to the Congress whether they expand or refuse to expand the Court. The Court hasn’t been expanded since 1932. At that time, we only had 130 million citizens in the U.S. Jut on population alone expansion of the Court could be accepted. But Biden must appoint. Many say that he would be expanding the Court. But the President doesn’t expand the court, only Congress does. But they cannot act until he appoints.
Is court expansion legal? Yes. Practical? Yes. Politically correct? Maybe. Bu the Republicans through Mitch McConnell have weaponized the Court. It is time for Democrats to acknowledge the new reality and start working and fight with it.
The Congress can also pass and embed in law the national right to abortions and women autonomy. We have the votes in the House now. They have passed legislation to do so. But once again we are stuck in the Senate because of the filibuster. A procedural rule not enumerated in the Constitution that once again McConnell has weaponized to allow him to veto legislation. The Senate has to act to overcome this. If they cannot we must strategize, organize and vote to keep the House and Senate in the fall. We also have to add at least two seats in the Senate to end the filibuster to pass this legislation. This is one of the most difficult paths.
Finally, we have to get the ERA ratified by Congress. It has passed all needed 38 states for ratification, but after the time period allotted for passage. Congress can extend this time period. It has done so before. This can be done now. When this is done. We enshrine in the Constitution that the rights of women cannot be overruled by the will of men. This will allow women to sue to ensure their individual rights, including the right of privacy and through that abortion, cannot be overseen by individual state governments or the national government.
There are things to do. But not the least of which is to preserve our rights. We can ensure this by making sure Democrats are elected in the fall. It is crucial and important to women’s causes and the freedom of the country. Regardless of whether or not any of these solutions is implemented, ensuring a Democratic House and Senate will ensure they won’t be eliminated.
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