I was born in 1973, the same year as Roe v. Wade. Now I wonder if I'll die in 2022 since it has been overturned. Wouldn't that be poetic?
I don't have much to say about the decision today, but it's such an historic moment I feel like I ought to say something. So I just want to leave a short thought about it.
I understand why a lot of Pro-choice people would be very upset about the SC decision today. But I think people should be upset for the right reasons. Let's grant, for the sake of argument, that women have a right to abortion. I don't mean a legal right since that's what's being argued. I mean a natural right that ought to be enshrined in the Constitution.
Even if you grant that such a right exists, it shouldn't be the basis for your objection to Dobbs v. Jackson. The issue being decided today is not whether people ought to have the right to an abortion; rather, the issue is whether that right was implicitly in the Constitution to begin with. A lot of legal scholars, whether they were pro-choice or pro-life, have agreed that Roe v. Wade was decided wrongly.
One of the main objections that even showed up in the dissenting opinion was that it was an example of judicial legislation. The SC's job isn't to create laws. Rather, it's to judge whether a law coheres with the Constitution. But in creating a distinction between three trimesters, and giving states the right to restrict abortions to varying degrees, depending on the trimester, the SC was engaging in judicial legislation. The trimester distinction is nowhere found in the Constitution. Nor was it found in any precedent or tradition. It was created by the Supreme Court. That was the main fault of the decision.
If I were pro-choice, I might be very disappointed that a right that was once protected is no longer protected. But I don't see how I could really think Dobbs v. Jackson was wrong in overturning Roe v. Wade. If women actually do have a natural right to abortion, then the way to protect that right is either through legislation or through a Constitutional amendment. It is not through the Supreme Court making up law where none exists. That is not their job.
3 comments:
Good thoughts. I looked long and hard for someone who had done a bulletpoint summary of the arguments made in the majority opinion to no avail. Best I could find were a handful of points. I'd read most of the opinion right after it was leaked, then yesterday tried to remember the points it had raised. I came up with this inadequate list, but your post made me realize I may have missed one:
* The original ruling had exceptionally weak justification that begged to be re-visited.
* Supporting arguments were or have now been found to be flawed.
* Extenuating information has come to light.
* There was little to no historical precedent for abortion rights, particularly after "quickening".
* It was not in accordance with the will of the people at that time.
* The ruling permitted too much latitude, i.e., till birth and for elective reasons.
* The law is even more permissive than those other countries favoring abortion.
* Late term abortion is not even the will of the people now.
* It imposed upon the people one particular "theory of life", which the court is not justified to do.
* The presumed right was not appropriately grounding in the constitution. Its tenuous justification has only enflamed the debate.
* This should be sent back to the people and decided by the states, or the legislative branch if the states are so inclined.
This earlier article contained the following important points:
https://www.theatlantic.com/ideas/archive/2022/05/alito-roe-opinion-abortion-states-rights-constitution/629755/
"First, it’s important to understand the question before the Supreme Court. It is not 'Should American women possess a right to abortion?' but 'Does the American Constitution protect abortion rights?' The distinction is of paramount importance. The Court’s job is not to determine which rights we should possess but rather the rights we do possess."
"The inherent weaknesses of Roe’s approach have long been recognized even by the strongest defenders of abortion rights. In 1992, for example, Ruth Bader Ginsburg criticized Roe as a 'breathtaking' precedent during a speech at New York University. ... 'A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day ... might have served to reduce rather than to fuel controversy.'"
"[E]nacting legal change is precisely the role of the people’s elected representatives. Legislation is for the legislature, and if the people of the United States want to create a right to abortion, they have that power. They had that power before Roe, and if Alito’s opinion holds, they will still have that power."
I also came up with this list of questions for those who think that a great injustice was done:
1. Was the SCOTUS decision bad because it just didn't go your way or because it was a judicially unwarranted conclusion?
2. Have you read the majority opinion to understand the rationale?
3. What is the role of the SCOTUS, anyway?
4. What do you think of judicial activism?
5. Do liberals practice activism and is that bad?
6. Should new rights/laws come from the judicial or legislative branch?
7. What if the court had instead ruled that the principles of Roe v Wade and PP v Casey permitted infanticide up to 90 days?
>"The Court’s job is not to determine which rights we should possess but rather the rights we do possess."
I 100% agree with that.
I haven't read Dobbs yet. I didn't read the leak because I figured it would be edited before official release. I was afraid if I read the leaked version, then later read the official version, the two might become mixed up in my head, and I would be forever confused by it. But I plan to read the official version soon.
The reason I said the biggest problem with Roe was that it engaged in judicial legislation by creating the trimester division is because that's what the minority opinion said, and I totally agreed with it. It's also what a few legal scholars have said. So I had no idea whether Dobb made that point or not. I was really expressing my own opinion.
Your questions are definitely on point. I'm tempted to edit my post to include them.
You're welcome to use any of that. I'd write a post this weekend but I've got things going on. If you do read Dobbs and come up with a concise summary of the arguments, then I'd work to get visibility for it.
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