Well, Justice Stephen Breyer has served his term on the Supreme Court and is gone now, but his final season was a real barnburner in which he found himself in the minority most of the time. His comments on the cases and the writing of the majority is readily available at the Supreme Court site, and one has to wonder how many journalists who reported on the court opinions or those who have passionately held beliefs on the results of the rulings have read them. I suspect most of the people who know about them haven’t read them.
The most controversial decision the court released this season is known as DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN’S HEALTH ORGANIZATION ET AL, now known forever as just Dobbs. The Dobbs case specifically uprooted the Roe V Wade ruling from 1973. The Roe ruling can be be found, in it’s entirety, here. The Dobbs case can be found, in its entirety here.
Again, these are available for anyone to read. They are written in plain English and any literate person can understand them. We long ago established public schooling for just this reason; so citizens could understand the government that was to protect their rights and establish order. In many cases, the audio of the arguments and legal presentations are available as well so even the illiterate can understand the logic. Even before the internet, these decisions could be found in local libraries. In short, anyone can know this stuff. That so few people avail themselves is as tragic as it is unsurprising.
So, based on the documents, what is the Dobbs case about?
Contrary to what has been widely reported, the state of Mississippi passed a law known as The Gestational Age Act, and it DID NOT forbid all abortion. The relevant portion of the law, quoted by the Supreme Court reads:
“…except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.”Available here: https://legiscan.com/MS/text/HB1510/id/1758892
So, right off the bat, we see that neither the court nor the state of Mississippi forbid abortion outright or declared life to begin at conception. The Dobbs case does not go there, as the dissenters acknowledge. The court did not weight in on anything that was a part of the 50 year campaign of euphemisms around abortion, the most common of which was “A woman’s right to choose.” As far as the majority of the court is concerned, a woman COULD have the right to chose, and CAN have the right to choose, but the states and the country at large have a stake in how pregnancies are carried out, and so the law must specifically state what a woman can chose to abort a pregnancy and at what point that choice ends, if ever. Whatever we’re going to have, the political branches must enact it. That is democracy in action, and that is the process we are to use to decide all manner of life or death outcomes. It is our preferred way to govern. We fight wars over this stuff.
The early part of the majority opinion discuses Roe and Casey, the other big abortion cases, and finds Roe to be wanting in several areas. According to six of the nine members of the court, the original decision was contradictory, had reasoning and proscriptions that seemed a lot like legislation with designed rules, and in the end, reached far past the obvious meaning of the words in the Constitution to find a ‘right’ to abortion. The majority opinion searches through history to see what traditions existed prior to the Roe decision and found that abortion was never considered to be a right in the way that freedom of speech is a right, and was restricted or forbidden just about everywhere. The history is detailed in the opinion, and then on page 25, this summary is given:
The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.Page 25, https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
A couple of sentences later, they write:
Respondents and their amici have no persuasive answer to this historical evidence.
The majority writes extensively about the other big abortion case, Planned Parenthood v. Casey, otherwise known as just Casey, and concludes that Casey was a punt by the court.
The Casey plurality, while reaffirming Roe’s central holding, pointedly refrained from endorsing most of its reasoning. It revised the textual basis for the abortion right, silently abandoned Roe’s erroneous historical narrative, and jettisoned the trimester framework. But it replaced that scheme with an arbitrary “undue burden” test and relied on an exceptional version of stare decisis that, as explained below, this Court had never before applied and has never invoked since.Page 54, https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
In short, the majority asserts that Roe was an aberration from the beginning, Casey did nothing to fix it, and virtually everyone knew it. If a woman has the right to choose to have an abortion, that can be established in law, but it was never, not in 1865 or 1973 or at any other time, part of the legal design of the country. Those who wanted an abortion right surely knew the rickety foundations of Roe and they could have, and could now, seek to explicitly PUT the right to an abortion in the Constitution, but until recently, they made no effort to do so. In the early years of the Obama administration, the Democrats had a bulletproof majority and they did not seek to cement in abortion as a foundational right. with this majority, they pushed through Obamacare.
The dissents in Dobbs, also perfectly available to read, are scathing and also compelling. They begin on page 148. Right in the first paragraph they cut to the chase about what the legal debate has meant to those who want there to be an abortion right on demand, unquestioned and unchallenged:
Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be.Page 148: https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
What follows is a long list of things the minority fears will happen as a result of the democratic process playing out regarding abortion:
A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs.
The Mississippi law at issue here bars abortions after the 15th week of pregnancy. Under the majority’s ruling, though, another State’s law could do so after ten weeks, or five or three or one—or, again, from the moment of fertilization.
So too, after today’s ruling, some States may compel women to carry to term a fetus with severe physical anomalies
But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion.
After this decision, some States may block women from traveling out of State to obtain abortions, or even from receiving abortion medications from out of State.
Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest.
There are a few other situations in which the dissenters claim are now on the table, and they are right in that what the Dobbs decision does is return abortion back to the elective government, which, using the same reasoning, could return other so-called “settled” parts of the legal order to the elective process. These would include the use of contraception, gay marriage, and interracial marriage. The cause for alarm is described as such:
To hear the majority tell the tale, Roe and Casey are aberrations: They came from nowhere, went nowhere—and so are easy to excise from this Nation’s constitutional law. That is not true. After describing the decisions themselves, we explain how they are rooted in—and themselves led to—other rights giving individuals control over their bodies and their most personal and intimate associations.
And so we come back to the core ideas of a societal order. What are rights of the individual and what are the rights of the collective? What is a ‘right’ supposed to be? These debates go back to the Romans and before them, the Greeks. The original Bill of Rights was meant to lift certain rights above the democratic process and make them secure for all time, and beyond what a majority could impose. The right to chose one’s religion, and prevent the government from making any religion the ‘official’ religion, provides one such example. Does the text of our governing doctrine allow for interpretation so that the rights can be expanded without any further action on the part of the elective government? The dissenters think the answer is yes, but the majority says no. There COULD be restrictions placed on abortion as the dissents describe, but those restrictions would be the result of the sovereign will of the people who elect the government. And that is true of virtually ANY right in the law, since under our system, even core rights, can be rescinded if there are enough votes.
Also in evidence is a deep philosophical idea about life and it’s purpose and nature. The dissenters describe the results of a woman carrying a baby to term against her will in the most catastrophic terms:
Under those laws, a woman will have to bear her rapist’s child or a young girl her father’s—no matter if doing so will destroy her life.
It is here that we come into contact with the idea that having babies under the ‘wrong’ circumstances will destroy a woman’s entire, potentially 100-year long, life. Perhaps the dissenters in this case and those that harbor such feelings about pregnancy and childbirth have been waging a long war on human biology. Nature split the task of childbirth into two parts that takes a man and a woman, and it did not discriminate regarding the relationship between the two parties. A man CAN impregnate his own daughters, and the Bible tale of Lot directly describes this situation.
Now Lot went up out of Zoar and lived in the hills with his two daughters, for he was afraid to live in Zoar. So he lived in a cave with his two daughters. And the firstborn said to the younger, “Our father is old, and there is not a man on earth to come in to us after the manner of all the earth. Come, let us make our father drink wine, and we will lie with him, that we may preserve offspring from our father.” So they made their father drink wine that night. And the firstborn went in and lay with her father. He did not know when she lay down or when she arose.
The next day, the firstborn said to the younger, “Behold, I lay last night with my father. Let us make him drink wine tonight also. Then you go in and lie with him, that we may preserve offspring from our father.” So they made their father drink wine that night also. And the younger arose and lay with him, and he did not know when she lay down or when she arose. 36 Thus both the daughters of Lot became pregnant by their father.Genesis 19:30–38
So, incest is biologically possible and perhaps nature built this into the design of humans so that when the population was very small, humanity could still survive. That’s just how it works. It is clearly shameful and undesirable, which is why the biblical daughters had to get Lot drunk first before he would do it, but it happens. Humans have long noted the important relational differences in the mom and dad, and as a consequence, rape, incest, and sex before a person is at the age to consent are all illegal. If it happens, there are legal consequences for the (mostly) man, but the woman’s life is NOT destroyed. Conflating an unwanted pregnancy with a an entire life destroyed has been part of the problem. Babies are carried to term and then they grow up and go on as adults. This has been the pattern of human life for many a millennia and it will go on regardless of what the courts say. It takes about 20 years for a baby to reach full adulthood. Many prison sentences are far longer, and being a parent isn’t prison sentence.
Most pregnancies, I suspect, are unplanned. Woman don’t ‘confer with their doctor’ before they are pregnant; they have some interaction with a man and THEN they go to the doctor. In the past, they didn’t even do that. They just had babies and lived normal, often very fulfilling lives. Has our society become so fragile that women need protection from that situation? Pregnancy is that dangerous? This is progress?
One need not agree with the majority in the Dobbs case, but describing the justices as ‘illegitimate’ or declaring their reasoning to be something other than what they have plainly stated is foolish. The majority applied similar logical in the other cases they released recently, one regarding the power of the EPA and another regarding the various states ability to modify the 2nd Amendment. In all three cases, they stated that the political branches can’t pass power out of the political system and pawn off important decisions to the courts or the agencies. Further, when the political branches do act, they also can’t brazenly disregard what clearly IS written law, long settled, such as the case with the 2nd Amendment. We can revoke the 2nd Amendment, create an amendment that says “A woman shall be the sole decider to continue or terminate a pregnancy, and no one else, amen,” and we can make carbon emissions illegal. It’s all politically possible. But, neither the congress or the president or the states can operate outside the rules. This is the gift the Roberts court has given to the American people who have the right to live under the laws made by the elected government and not anyone else.
West Virginia v the EPA, the case regarding the EPA plans to regulate carbon, is here.
The New York Rifle and Pistol Association v the State of New York, which was a case about getting a ‘license to carry’ in New York State is here.
Bullcoming v New Mexico is here.