Ongoing Notes on Dobbs, State Health Officer of the Mississippi Department of Health, et. al. v. Jackson Women’s Health Organization et al. (Some notes on the overturning of Roe v. Wade & Casey)
These are just some ongoing notes, quotes, and pieces of information I’m finding within this opinion and where it leads me. Check out the episode that we did today on Doom&GloomHQ. Unlike those who uphold our “sacred” Constitution, who clearly embody the Originalist perspective in interpreting the Constitution as it was written — this document will likely change as I continue to read more and clip more. I wouldn’t try to make sense of this as a coherent and cohesive document but rather, just a gathering of thoughts and ideas I’ve come up with while parsing through this opinion. Some of the following text are direct quotes from the opinion, others are mixes of my own thoughts and the Court’s thoughts. Before anything else, I wanted to link this video from last year to better explain what a Constitutional Originalist really is. Ben Sasse (R-Kansas) asks Amy Coney-Barrett, who, at the time, was still a nominee for the Supreme Court.
Judge Barrett’s Civics Lesson on Originalism — Senator Ben Sasse
Privacy & Viability: What are some of the potential implications of SCOTUS decision? — Doom&GloomHQ — June 26, 2022
- “The Court examined whether the issue of a “right to an abortion” is deeply rooted in the Nation’s history and traditions. On the contrary, the unbroken tradition of prohibiting abortion on pain of criminal punishment (relating back to things from the Magna Carta and Common Law — Blackstone) persisted from the earliest days of the common law until 1973. At that time, it was said that Roe implied a right to privacy and then Casey took it further by solidifying this by expressing what’s in the protection of the Bill of Rights and the Constitution.
- More or less, the Opinion (that I’ve read thus far) relies on the fact that there is zero precedent that guarantees’ a right to abortion within the Constitution. “Legislation” is mentioned numerous times — suggesting that this should be handled by the “states” in terms of “regulation” — not protection. It then goes on to discuss how the respondents added in legislative motive, which this Court will not speculate on, in terms of the decisions made with Roe. There’s a clear “show of hand” and “reverence” for the Common Law that guides the American legal system — with an emphasis on precedent.
- Emphasizes difference between “ordered liberty” and “liberty” that is to the people’s interpretation. Ordered liberty has parameters — liberty, as others understand it, but to act on that understanding of liberty is not necessarily guaranteed in terms of something falling under the expression of “ordered liberty.”
Sorry to interrupt — but now seems like a good time to add in a few videos I recently did on the issue, along with the one I provided above that myself and Sebs made today. I hate to say I was onto something (shoutout, once again, to James via Twitter for bringing this issue to my attention) — but I do believe I’m onto something when I say that we are in for a wild ride when you mix the biotech industry’s motivations and aspirations — opportunities — and the inadequacy of the federal, state, and local governments to actually protect the wills of the lowly peasants like you and I.
Roe v. Wade & Artificial Wombs: What will the abortion debate look like? — May 2022
Roe v. Wade Part II: Follow-up to last month’s video — June 24, 2022
3. Alito argues that Solicitor General nor the respondents can prove that by 1868, the vast majority of States criminalized abortion at all stages of pregnancy. He goes out of his way to to discuss how there’s a difference between the (type of child or activity in the womb) and the adherence to newer tech, etc.. was a reason to authorize it, but the moral is that there isn’t precedent in the Constitution, therefore, it would be to add in things. It also gets into the topic of understanding.
4. Respondents are also not able to prove that a constitutional right to abortion was established when the Fourteenth Amendment was adopted, but they have found no support for the existence of an abortion right that predates the latter part of the 20th century — no state constitutional provision, no statute, no judicial decision, no learned treatise. The earliest sources called to our attention are a few district court and state court decisions decided shortly before Roe and a small number of law review articles from the same time period.
5. It’s important to note that with Roe, there was a case a few years earlier that resulted in a woman going to jail because she wouldn’t tell who gave her the abortion. She wrote to an attorney who was on the topic, and this ended up being the mantra behind a lot of Roe v. Wade because of the anonymity of Roe.
6. “But as we have seen, great common-law authorities like Bracton, Coke, Hale, and Blackstone all wrote that a post-quickening (which just means that the baby was clearly “alive” in those times) abortion was a serious crime. Moreover, Hale and Blackstone (and many authorities following them) asserted that even a pre-quickening abortion was “unlawful” and that, as a result, an abortionist was guilty of murder if the woman died from the attempt.
7. Instead of following the authorities [implying that these people are the authorities and foundation for the Constitution itself], Roe relied largely on two articles by a “pro-abortion” advocate who claimed that Coke had intentionally misstated the common law because of his “Strong anti-abortion views.” Alito then goes on to say that the article has been
discredited” and has come to light that even the members of Jane Roe’s legal team did not regard the letters as serious scholarship. An internal memorandum characterized this author’s work as donning the “guise of impartial scholarship while advancing the proper ideological goals,” which the Court does not recognize.
8. “The Solicitor General next suggests that history supports an abortion right because the common law’s failure to criminalize abortion before quickening (before showing signs of life, i.e. viability), means that ‘at the Founding and for decades thereafter, women generally could terminate a pregnancy, at least in its’ early stages.” But the insistence on quickening was not universal, see Mills — and regardless, the fact that many States in the late 18th and early 19th century did not criminalize pre-quickening abortions does not mean that anyone thought the States lacked authority to do so. Basically: just because there wasn’t a law against this doesn’t mean that “anyone” felt that the States didn’t have the authority to do just that. “When legislatures began to exercise that authority as the century wore on, no one, as far as we are aware, argued that the laws they enacted violated a fundamental right.”
“That is not surprising since common-law authorities had repeatedly condemned abortion and described it as an “unlawful” act without regard to whether it occurred before or after quickening.”
9. “Another brief relied upon by respondents tries to dismiss the significance of the state criminal statutes that were in effect when the Fourteenth Amendment was adopted by suggesting that they were enacted for illegitimate reasons. According to this account…important motives for the laws were the fear that Catholic immigrants were having more babies than Protestants and that the availability of abortion was leading White Protestant women to “shir[k their] maternal duties.”
10. “Resort to this argument is a testament to the lack of any real historical support for the right that Roe and Casey recognized. This Court has long disfavored arguments based on alleged legislative motives. The Court has recognized that inquiries into legislative motives is backed by statements made by legislators who voted for a law, we have been reluctant to attribute these motives to the legislative body as a whole. “What motivates one legislator to make a speech about a statute is not necessarily what motivates scores to enact it.” — Page 28
11. “Here, the argument about legislative motive is not even based on statements by legislators, but on statements made by a few supporters of the new 19th century abortion laws, and it is quite a leap to attribute these motives to all the legislators whose votes were responsible for the enactment of those laws. Recall that at the time of the adoption of the Fourteenth Amendment, over three quarters of the States had adopted statutes criminalizing abortion (usually at all stages of pregnancy), and that from the early 20th century until the day Roe was handed down, every single State had such a law on its books. Are we to believe that the hundreds of lawmakers whose votes were needed to enact these laws were motivated by hostility to Catholics and women?” — Page 29
12. “There is ample evidence that the passage of these laws was instead spurred by a sincere belief that abortion kills a human being. Many judicial decisions from the late 19th and early 20th centuries made that point. One may disagree with this belief (and our decision is not based on any view about when a state should regard pre-natal life has having rights or legally cognizable interests, but even Roe and Casey did not question the good faith of abortion opponents.” — Page 30
Substantive Due Process: The Supreme Court provides “special protection” for three types of rights under “substantive due process” in the Fourteenth Amendment — an approach which originated in United States v. Carolene Products Co. These include: 1) Rights enumerated in and derived from the first eight amendments to the Constitution; 2) The right to participate in the political process, such as the rights of voting, association, and free speech; 3) The rights of “discrete and insular minorities.” If the Supreme Court cannot find whether a right is a “fundamental right” by examining whether it’s deeply rooted in American history and tradtions, it next applies the “rational basis test.” In more or less words, this means that a “normal” standard of review is applied when considering constitutional questions. Courts “applying rational basis review to seek to determine whether a law is ‘rationally related’ to a ‘legitimate government interest’ — whether real or hypothetical.
Kavanaugh — Concurring
“The issue before this Court, however, is not the policy or morality of abortion. The issue before this Court is what the Constitution says about abortion. The Constitution does not take sides on the issue of abortion. The text of the Constitution does not refer to or encompass abortion. To be sure, this Court has held that the Constitution protects unenumerated rights that are deeply rooted in American history and tradition, as the Court today thoroughly explains (1).”
- (1): “The Court’s opinion today also recounts the pre-constitutional common-law history in England. That English history supplies background information on the issue of abortion. As I see it, the dispositive point in analyzing American history and tradition for purposes of the Fourteenth Amendment inquiry is that abortion was largely prohibited in most American States as of 1868 when the Fourteenth Amendment was ratified, and that abortion remained largely prohibited in most American states until Roe was decided in 1973.
“Because the Constitution is neutral on the issue of abortion, this Court must also be scrupulously neutral. The nine unelected Members of this Court do not possess the constitutional authority to override the democratic process and to decree either a pro-life or pro-choice abortion policy for all 330 million people in the United States.”
“Instead of adhering to the Constitution’s neutrality, the Court in Roe took sides on the issue and unilaterally decreed that abortion was legal throughout the United States up to the point of viability (about 24 weeks of pregnancy). The Court’s decision today properly returns the Court to a position of neutrality and restores the people’s authority to address the issue of abortion through the processes of democratic self-government established by the Constitution.
“To be clear, then, the Court’s decision today does not outlaw abortion throughout the United States. On the contrary, the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process. Through that democratic process, the people and their representatives may decide to allow or limit abortion. As Justice Scalia stated, the “States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. Planned Parenthood of Southeastern Pa. v. Casey (opinion concurring in judgment in part and dissenting in part).
“Today’s decision therefore does not prevent the numerous states that readily allow abortion from continuing to readily allow abortion. That includes, if they choose, the amici States supporting the plaintiff in this Court: New York, California, Illinois, Maine, Massachusetts, Rhode Island, Vermont, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Michigan, Wisconsin, Minnesota, New Mexico, Colorado, Nevada, Oregon, Washington, and Hawaii. By contrast, other states may maintain laws that more strictly limit abortion. After today’s decision, all of the States may evaluate competing interests and decide how to address the consequential issue.’
“The more difficult question in this case is stare decisis — that is, whether to overrule the Roe decision. The principle of stare decisis requires respect for the Court’s precedents and for the accumulated wisdom of the judges who have previously addressed the same issue [rooted in Article III of the Constitution and is fundamental to the American judicial system and to the stability of American law.”
Essentially, Kavanaugh claims that reversing the decision on this, as he is concurring with other judges, that Roe was a mistake for the Supreme Court to ever take on in the first place. This is a legislative matter — one that should be left to the states. Why does it feel so…different then? I don’t think we realized we were being governed by such originalists — but that’s exactly what they are. They interpret the Constitution, as it was written, and then apply that through a modern lens — without fundamentally changing the parameters by which an issue is viewed. Common law requires this — it’s a blend of precedent, English and Roman law — it’s the Commonwealth. The United States of America and the United Kingdom — I’m not sure why it’s so hard for us to understand this concept in terms of how our “leaders” interpret the law.