This piece was originally posted on December 3, 2021. Given the "supposed" SCOTUS opinion draft leak of the past few days, I thought a repost might be appropriate............
On Wednesday, December 1,
the issue of how federal regulation should impact abortion in America was
debated at the Supreme Court of the United States (SCOTUS). I want to devote
this post to that event. For one like me
who has been dismayed and frustrated over the seeming arbitrariness of recent
SCOTUS decisions; the plodding pace of our judicial system’s resolution of
practical constitutional questions; and the pervasiveness of the woke culture
in our society that emphasizes social consciousness over fundamental reason…this event was a moment of celebration. It replenished and reinvigorated my faith in
the basic premises of our nation.
Regardless of what the ultimate SCOTUS decision will be on Dobbs v. Jackson Women’s Health Organization
(JWHO), the presentation of this case sanctified and highlighted respect
for the integrity of our constitution, the preciousness of human life in the
form of a fetus, and the essential role that federalism plays in the uniqueness
of America. There were literally moments
in the course of this argument that I cheered out loud.
Dobbs v. JWHO will not decide the legality of abortion in our country. Sometime in June of 2022, the SCOTUS will
render a decision on this case that will either uphold or overturn the state of
Mississippi’s recently passed abortion law.
Secondly, it will likely
determine the legal validity of Roe v.
Wade. If the Mississippi law is
upheld, it will likely be a model for many states over the next few years to
follow as the primary responsibility for regulating the practice of abortion
will pass from the federal government back
to the state legislatures. There
will no doubt be some states that, given the opportunity, will outlaw abortion
entirely. There will as well be some
states establishing what will likely be the most liberal abortion laws in the
civilized world.
Through the consideration
of terms like stare decisis, reliance,
viability, and quickening…the SCOTUS will also determine how strictly our
constitution should be interpreted in the establishment of basic citizen rights. Of equal importance, they will consider that if
a prior SCOTUS determination in that arena is now considered to be improper (not right or wrong, but improperly conceived)…should
it be preserved simply on the basis of its longevity? These questions have arisen before in regards
to abortion through the consideration of Planned
Parenthood v. Casey; but most observers will acknowledge that while Casey addressed some significant aspects
of abortion, it largely skirted the issue and stopped short of dealing
directly, fundamentally, and decisively with the legality of the procedure in
America. It also failed to clarify
exactly “who” should determine the
terms of that legality.
The argument of Dobbs before the SCOTUS went on for
about two hours. Arguing to uphold the
Mississippi abortion law was the Mississippi Attorney General Scott
Stewart. He was the advocate for state regulation of abortion and the
overturning of Roe. Arguing against the Mississippi abortion law and
for the preservation of Roe as legal precedent was the attorney
for the Jackson Women’s Health Organization, Julie Rikelman. Supporting Ms.
Rikelman in her efforts was the Solicitor General of the United States,
Elizabeth Prelogar. Representing the
United States at the direction of the Biden Administration, Ms. Prelogar argued
along with Rikelman to overturn the Mississippi law and to sustain the
precedent value of Roe. All three of these players in this particular
drama conducted themselves admirably in a professional sense; they argued their
particular positions about as well as they could be argued. Forgive
my redundancy, but…They each gave it their best shot. They left it all on the field. There is no reason for the SCOTUS to refrain
from a full resolution of this abortion question based on any presumption of
insufficient material to consider.
Everything was placed on the table.
It is now time to resolve this issue.
Professional SCOTUS
watchers who have spent years attempting to divine the tea leaves from case
presentations all warn that it is a mistake to predict a case outcome based on
the questions posed from the SCOTUS Justices…but they all do it anyway.
Following the presentations, it appears to be pretty well agreed upon that
there are four Justices (Thomas, Barrett,
Gorsuch, Alito) who are ready to uphold Dobbs
and overturn Roe. It is equally agreed upon that there are
three Justices (Sotomayor, Kagan, Breyer)
who are inclined to overturn Dobbs
and uphold the precedent value of Roe. Given the fact that a simple majority (five votes) is required to constitute a
decision; the attention therefore falls upon Justices Kavanaugh and Roberts. Based
on what I have read from those who are qualified to make such a guess, the
prevailing opinion is that Kavanaugh is leaning solidly towards upholding Dobbs and overturning Roe.
Given his history of seeking compromise and middle ground, oftentimes with infuriating logic, it is
difficult to know where Roberts resides on this case. But after considering the questions he posed
during the argument, most seem to agree that Roberts is leaning cautiously
towards upholding Dobbs and
overturning Roe.
The line appears to be
shaping up with an expectation of a final 5-4, or possibly 6-3 super majority,
vote that will uphold the Mississippi law and overturn Roe v. Wade. If this turns
out to be accurate, it will be a watershed moment in our nation’s history. In football analogy, Roe v. Wade was a “pick 6”
that created a constitutional right to abortion out of whole cloth. Planned
Parenthood v. Casey was a “punt”
with no satisfying or long-term resolution to the issue. Dobbs
v. Jackson Women’s Health Organization holds the potential to be a
game-winning touchdown following a long drive with a two-point conversion. It
could be that emphatic.
By way of addressing this
episode, I am going to first present the actual text and a good summary of the
Mississippi abortion law; it is the central topic in this entire story. After literally years of waiting, this case
represents what many pro-life advocates would term the “ideal vehicle” to be used in tearing down Roe. In plain terms, the law
states that a woman in Mississippi may obtain an abortion within the first 15
weeks of pregnancy. After that date, abortion
will be prohibited, with the exceptions of profound fetal abnormalities or
conditions directly and adversely affecting the health of the mother. One way to interpret this law is to say that
at 15 weeks, the fetus is developed to the point where it functions as a human
being, it possesses awareness and can feel pain, and it should enjoy the
liberty of life like all other human beings.
To abort it beyond this point constitutes murder.
This particular
Mississippi law will not satisfy the pro-life or the pro-choice advocates located at either end of the abortion
argument spectrum. One extreme believes
that life begins at conception and no
abortions should occur. The other extreme believes abortion should be
available upon demand up until the moment
of delivery. But this law does represent a common sense,
practical, and reasonable starting point to deal with an emotional and
polarizing issue. Here is actual text
followed by a short summary of the law; more details emerge in the following
linked articles:
Text: https://legiscan.com/MS/text/SB2116/id/1846191
Summary: https://www.politifact.com/factchecks/2021/dec/01/tate-reeves/fact-check-how-mississippis-abortion-law-compares-/
Next I want to provide a
link to the Constitution of the United States.
In the course of the case argument, there will be many references to
certain sections of the Constitution and this link is a very “user friendly” site that will permit you
to read and judge for yourself what the Constitution says and intends. As I have oftentimes said, it is a simple
document using simple language: https://www.heritage.org/constitution?gclid=EAIaIQobChMI3diQyIuC7AIVFYTICh38IwFtEAAYBCAAEgJ5MfD_BwE
And as a final step in
presenting this subject, I want to link the actual transcript from the SCOTUS
presentation of Dobbs. Remember that each Justice, through the
wording of their remarks and questions, are attempting at some level to
influence the ultimate decision: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/19-1392_gfbi.pdf
As an attachment to the
actual transcript of the case arguments, here is a running commentary of the
proceeding featured by National Review
that really helps to expand one’s understanding of the proceedings: https://www.nationalreview.com/2021/12/dobbs-supreme-court-oral-arguments-live-updates/
Now…let us consider some
of the commentary surrounding this SCOTUS case….
https://www.nationalreview.com/bench-memos/dobbs-the-courts-historic-moment-part-1/
https://www.nationalreview.com/bench-memos/dobbs-the-courts-historic-moment-part-2/
https://www.nationalreview.com/bench-memos/dobbs-the-courts-historic-moment-part-3/
https://www.nationalreview.com/bench-memos/reagan-ag-ed-meese-success-of-conservative-legal-movement-turns-on-overruling-roe-casey-in-dobbs/
https://www.dailywire.com/news/dem-senator-warns-of-revolution-if-roe-overturned-in-case-now-before-scotus
https://www.nationalreview.com/bench-memos/what-they-are-saying-about-dobbs-v-jackson-womens-health-organization/?utm_source=blog-landing&utm_medium=desktop&utm_campaign=continue-reading
https://jonathanturley.org/2021/11/30/the-washington-post-criticized-for-historically-inaccurate-originalist-argument-for-abortion/#more-181293
https://www.cnsnews.com/article/national/michael-w-chapman/frc-report-abortion-demand-6-countries-us-china-n-korea-s-korea
https://www.washingtonexaminer.com/restoring-america/fairness-justice/editorials/dobbs-abortion-case-threatens-democrats-house-of-cards
https://www.nationalreview.com/bench-memos/my-wsj-op-ed-on-the-chief-justice-and-dobbs/?utm_source=blog-landing&utm_medium=desktop&utm_campaign=continue-reading
https://jonathanturley.org/2021/11/29/roe-redux-is-the-viability-test-still-viable-as-a-constitutional-doctrine/
Be
Informed…Pass the Word…Just Google centerlineright
To me, this abortion
issue that now lies before the SCOTUS is much more about our Constitution than
it is about the issue of abortion. The
essential place and function of the SCOTUS in our nation’s foundation is at
issue here. Should that body serve as
the arbiter of this nation’s formative blueprint
and make certain that our Legislative and Executive branches hew to those
principles…or…Should it be the “social conscience” of our nation and
literally foist upon this country mores and behavior that it considers to be
the products of an “evolving culture and
society”? To put it more
bluntly…should it insure legal adherence to the Constitution as it is written
or should it supplant our State and Federal elected officials in their civic
duties and responsibilities? Here are
some views on that subject:
https://www.nationalreview.com/corner/george-washington-on-respecting-the-constitution-as-written/?utm_source=blog-landing&utm_medium=desktop&utm_campaign=continue-reading
https://www.washingtonexaminer.com/news/thomas-raises-primary-questions-in-mississippi-abortion-law-case
https://www.dailywire.com/news/joy-behar-its-time-to-tweak-1st-and-2nd-amendments-because-founding-fathers-didnt-have-ar-15s-and-twitter
https://www.nationalreview.com/corner/we-need-less-transparency-in-the-supreme-court/
Regardless of your
personal feelings about abortion, this specific issue as viewed through this
specific case is a wonderful illustration of our nation’s governmental
essence. The way we deal with this particular issue says as much or more about
us as what we end up doing about
it. It is fascinating to read the
probing questions and remarks offered by the SCOTUS Justices and wonder…are they trying to inform themselves, trying
to persuade others on the Court, or simply trying to consciously pursue an
elusive truth? We should expect the
answers to these questions come next June.
