Abortion, SCOTUS, Roe vs. Wade, and My Take

The leaked majority draft opinion obtained by Politico puts the US Supreme Court in a very awkward position. So awkward that if the final decision were to change to upholding Roe vs. Wade and its subsequent nods at it, then it would smell of the court being heavily influenced by potential civil and political outcomes and outcries…kinda like it did with challenges to the 2020 election.

The conventional take is that the leak must have come from a clerk to one of the dissenting judges in hopes of socially, civically, and politically influencing the majority. There’ll be hell to pay, better reconsider! Probable. But plausible could be that the leak came from the other side, either to strengthen resolve by putting them in that awkward position, or perhaps just to get the inevitable process of wailing and gnashing of teeth over with sooner…perhaps rioting, burning, and looting stores being better in spring than in summer…

Judge Alito’s draft could not be more clear or plain. Here’s 10-key excerpts.

  • “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision….”
  • Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
  • “In the years prior to [Roe v. Wade], about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State. … [I]t represented the ‘exercise of raw judicial power’… and it sparked a national controversy that has embittered our political culture for a half-century.”
  • “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.”
  • “In some States, voters may believe that the abortion right should be more even more [sic] extensive than the right Casey and Roe recognized. Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an ‘unborn human being.’ … Our nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”
  • “We have long recognized, however, that stare decisis is ‘not an inexorable command,’ and it ‘is at its weakest when we interpret the Constitution.’ It has been said that it is sometimes more important that an issue ‘be settled than that it be settled right.’ But when it comes to the interpretation of the Constitution — the ‘great charter of our liberties,’ which was meant ‘to endure through a long lapse of ages,’ we place a high value on having the matter ‘settled right.’”
  • “On many other occasions, this Court has overruled important constitutional decisions. … Without these decisions, American constitutional law as we know it would be unrecognizable, and this would be a different country.”
  • ”Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. … The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe. … Together, Roe and Casey represent an error that cannot be allowed to stand.”
  • Roe certainly did not succeed in ending division on the issue of abortion. On the contrary, Roe ‘inflamed’ a national issue that has remained bitterly divisive for the past half-century….This Court’s inability to end debate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on. Whatever influence the Court may have on public attitudes must stem from the strength of our opinions, not an attempt to exercise ‘raw judicial power.’”
  • “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly. We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”

That’s basically a summation of legitimate conservative and religious talking points for just shy of 50 years for anyone who actually cared to inform themselves—and with only a smattering of civics knowledge and basic provisions of the US Constitution.

And it’s really, really damn fundamental, too. This is why Roe was so egregious, the court setting itself up as the combined legislative and executive branch of the federal government, as well as the legislatures, governors, and all courts in all 50 states. It was a dictatorial court insurrection that has been allowed to stand for nearly 50 years. In effect, they created a constitutional amendment out of thin air, bypassing that very arduous process that requires the ratification by 3/4ths of state legislatures.

This is why, as Alito astutely points out, it only deepened the divide. Even die-hard pro lifers always understood that they’d never have it all. They well understood that abortion would be hunky dory in some states, middle-of-the-road in others, and banned or very difficult in yet others. They could live in the one where they felt most comfortable.

It’s the whole damn design of this Republic and violating that—as Roe did—created a festering sore that won’t heal until it’s made right.

…I wonder how many people know that only three crimes are specifically mentioned in the Constitution: treason, piracy, and counterfeiting. That’s it. The vast, vast, vast majority of crimes aren’t even mentioned.

Why? Because it’s up to the states, duh. And every state has different rules and penalties for all of them. Some things are a crime or misdemeanor in one state, not in another. They even have their own constitutions. They have their own court systems to adjudicate all of it.

To put a fine point on it, the Constitution has no provisions at all on the killing or murder of anyone, fetus to nursing home resident. It’s up to the states. It’s ludicrous to make a single, carved out, socially contentious issue a special case. It has been a continually charged and recharged dumpster fire for 50 years.

Yes, the federal government can make specific laws about all of this stuff. House and Senate pass it, President signs it. But if you look at those laws, they are limited and specific. They don’t trample much on state stuff, in spite of what you see on TEEVEE shows and MOVIES where THE FEDS CAME IN!!! to save the day from the local sheriff-or-police keystone cops.

That’s not how it is, typically.

In conclusion, my own thoughts—or feelings if you will—about abortion is that I see no point in prohibitions very early on. Say, a few days or so for the pills, a few weeks or so for the procedure. I think it’s reasonable and face it, we’re not talking about anything close to viable. Plus, why wouldn’t a women wish to get that over with as soon as possible if that’s what she wants? I understand I’m at odds with people who believe it’s God stuff.

Same goes for rape and incest (which are a miniscule part if you look at data instead of listening to propagandists). It’s interesting how many religious people have this same exemption. Perhaps because it’s Satan stuff? I don’t know.

Bottom line for me: if you want it, just do it fucking really early.

The US is rather ingeniously devised and some of that strength has shown itself lately. Covid showed that the feds had limited powers and Trump recognized that and left all the mandate crap up to them and we saw how vastly different, state-by-state, the impositions were. Imagine if a Democrat had been in office. They would have tried to federalize everything right and left.

Other than some of the drug-availability stuff, the main Fed thing was masks on airplanes, which just crashed in flames, no survivors. The cockpit recorder and data is hilarious.

Now, right on its heels, we get yet another probable example of leaving things to the states, which is at the core of our history as a nation. America is a vast country of common values, regional values, and community values spread all across the place. 50 divisions is a lot to sort that out so that citizens have lots of options to live where they feel most at home.

A weak federal government is best, because it’s a monopoly. Then, you’re left with 50 fierce competitors.

A final thought: Looks like we’re back to ‘my body my choice’ and an understanding of ‘what a woman is,’ again.

12 Comments

  1. Scott Israel on May 4, 2022 at 16:01

    “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

    Personally, I hate abortion but in my view anything that places limits on the power of the people’s elected representatives is generally a good thing.

    This past year, the Mayor of Honolulu issued an order that no one could visit parks or use hiking trails or even walk into the woods all by themselves. This to prevent the spread of Covid. Hawaii’s Department of Land and Natural Resources bowed to his will and placed signs on the hiking trails of Oahu prohibiting people from entering them.

    I was forced to confine my walking to the roads. One day while walking along a wooded road in Nuuanu Valley I was gripped by an inexplicable urge to be rebellious and I walked 50 feet or so through bamboo and deep into the forest all by myself. I knew I was breaking the law. I have to admit I was a little nervous. I wondered if a drone would take my picture or if there was a wildlife camera hidden amongst the foliage. Perhaps my picture would be displayed on Facebook and news websites labeling me a scofflaw and enemy of society, my disobedience of the Mayor’s order making me a danger to everybody.

    There in the forest, I took out my pipe and lit it up. Not the sort of pipe people in Hawaii typically smoke but a Peterson pipe filled with Presbyterian tobacco. I don’t know much about Presbyterianism as a religion but it’s a pretty good smoke. If the only tobacco available was Presbyterian I could certainly get by.

    It’s a very odd feeling being an outlaw, enjoying a nice smoke, out in the middle of a tropical forest. Not necessarily unpleasant but more surreal.

    I fear the little bullies more than I fear the big bullies. I think there are more people in the world that live in fear of homeowners associations than of secret police. Anything that limits the power of the little Hitlers we are forced to share our lives with is a good thing.

    P.S. By the way, there’s a warning message popping on the blog where the subscribe buttons are supposed to be “Warning: in_array() expects parameter 2 to be array, bool given in” There’s actually 3 warnings displayed.

    I should subscribe to your blog. You inspired me to take cold showers and that saved at least $350 a year on electricity (I live in Hawaii) and your advice about L-Arginine was spot on. I’m just worried your blog will take up too much of my time and there’s so much out there to read. Still, you delivered more value than most so I probably will eventually.

    • Richard Nikoley on May 4, 2022 at 21:54

      Such a cool comment. Really a value add to the post.

    • Alan Andersen on May 5, 2022 at 08:24

      Great post. Brings back fond memories. I was raised on Oahu from 1960 to 1970. Spend my formative years hiking in the hills above Laie on the North Shore. I’ve been back several times and each time, sadly, the place has become so much more restrictive and less welcoming. In around 2012, I tried to hike around in the same places, but almost the entire area was then restricted with gates and private property signs. I did what you did, and plunged into the bamboo anyway, but within five minutes I was chased off by a cop or a private security cop. I have no idea how they even knew I was up there. I don’t think I will ever go back there again. Hawaii is no longer the Aloha State.

    • Richard Nikoley on May 5, 2022 at 08:32

      Hey Scott,

      Can you be a bit more specific about which subscribe buttons? Are they the ones to subscribe to the newsletter, or to join up as a member?

      • Andrea Geller on May 5, 2022 at 15:41

        Hello Richard,

        although I am not Scott ;-) but I reply to that: the warnings also come up in the “submit comment” section.

        One says,
        “in_array() expects parameter 2 to be array, bool given in /home/customer/www/freetheanimal.com/public_html/wp-content/plugins/subscribe-to-comments-reloaded/wp_subscribe_reloaded.php on line 1540”
        and two more of that kind.

        Greetings from Germany,
        Andrea



  2. Greg Bur on May 5, 2022 at 00:05

    I think your analysis is spot on. I’ve argued since my 11th grade history class that abortion was a state’s right issue, not something at the federal level. This was during the early 90s, so the shrieking of harpies wasn’t as intense as it is today. As an aside I had the same teacher for 12th grade psychology as I did for 11th grade history, and the composition of students in both classes was almost identical. What do you think happened to the “debates” once I learned how to spot psychological projection?

  3. James McCullough on May 5, 2022 at 07:45

    I’m not as familiar with the US Constitution as you are and appreciated your view on this. I’ve been reading a bunch about it but I’m pretty sure you’re the first to really explain why it’s a government decision to be made rather than a court one.

    About the leak, I found this article to be of interest that outlines the options of who possibly leaked it: https://slate.com/news-and-politics/2022/05/supreme-court-alito-abortion-opinion-leaker-identity-theory.html

    It has been enlightening to me to read on Twitter the experiences women have had with abortions. They don’t always occur at the beginning of pregnancy nor are they wanted, rather they are necessary to save the life of the mother.

    I am curious to see the outcome of this decision if it passes because it could have an effect on how abortions are handled here in Canada.

    • Richard Nikoley on May 5, 2022 at 08:26

      I probably ought to have mentioned saving the mother’s life, along with rape and incest. Still, all are miniscule red herrings in the whole thing. I seriously doubt there will be many, if any states, standing in the way of that.

  4. Alan Andersen on May 5, 2022 at 08:16

    Excellent summary and take on this draft opinion. Especially where you point out what almost no one knows: that there are only three federal crimes permitted by the Constitution. At the time the Constitution was drafted, it was inconceivable that the proposed Federal government would be in the crime-fighting business. Crimes and criminal codes were viewed as exclusively the province of the States. The entire rest of the Federal crimes listed in the Federal criminal code have been justified by the Supreme Court using the much-abused “interstate commerce” clause. Look up any federal criminal statute and you will see that the magic words “interstate commerce” are included. For example, all federal gun and drug crimes are based on the use of said objects in or affecting interstate commerce. And then, of course, the Court has given the most expansive definition of interstate commerce in order to hold the such criminal statutes are constitutional. The most famous example is Wickard v Filburn, that upheld the federal crime of growing more wheat on one’s own property that exceeded Federal quotas. The criminal statute in question included the standard “affecting interstate commerce” requirement. And even though the farmer in question planted, harvested, and consumed the wheat on his own property in a single state, the Court held that the fact that the farmer did NOT sell his wheat across State lines, affected interstate commerce in that doing so meant there was less wheat available to be sold in interstate commerce.

  5. D.M. Ward on May 5, 2022 at 22:04

    This subject sure receives a lot of attention. Much more than the murdering of people in Yemen, Syria, Ukraine, Somalia and all the numerous wars people murder people in. I always notice how much men have to say on abortion. It intrigues me and galls me at the same time. Because how can men talk about abortion and wag the finger at women when they go out and kill people systematically and have done for ages? It’s breathtaking hypocrisy. I’m not for killing fetuses but really, think about if men had a fetus growing within them, how would they feel about total strangers saying they had to go through the pregnancy? It’s just not enough that the constitution was written SOLELY by men (sorry for screaming but it does drive me bananas that) and all politics is an exclusively male-created framework. I know I know, women are the chumps for having anything to do with it. Just that men left women out of even having the ability to be literate let alone partake in public life. Why would men do that?

    • Richard Nikoley on May 6, 2022 at 10:06

      Hey DM,

      My base purpose for this post was not to argue the merits or demerits of abortion but to simply point out that the civil and legal process by which we are here, was all effed up.

      I recognize it’s a contentious issue on all sides and there’s little hope for resolution or consensus.

      So the rational thing to do is toss it back to 50 jurisdictions where there will be tons of choices. Plus, 50 years hence, there’s a ton more women in legislative roles. I think the ensuing legal landscape that comes out of it may surprise a lot of people.

      The harcore pro life will probably be surprised too, because I doubt there will be hyper-restrictions in many states. Funny, but in super woke and progressive EU, 29 of the 32 states limit abortion to 12 weeks.

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