Does a Woman Have a Constitutional Right to Abort a Human Life? Part II

Part I introduced the issue of the right to have an abortion because it is of sufficient importance to society. A responsible defense of and support for a particular opinion requires knowledge of the reasons which support holding or rejecting each opinion.

Justice Ginsburg’s opinion for the Court in Timbs is a re­cent example. In concluding that the Eighth Amendment’s protection against excessive fines is ‘fundamental to our scheme of ordered liberty’ and ‘deeply rooted in this Na­tion’s history and tradition,’ her opinion traced the right back to Magna Carta, Blackstone’s Commentaries, and 35 of the 37 state constitutions in effect at the ratifica­tion of the Fourteenth Amendment. A similar inquiry was undertaken in McDonald, which held that the Fourteenth Amendment protects the right to keep and bear arms.

The lead opinion surveyed the origins of the Second Amendment, the debates in Congress about the adoption of the Fourteenth Amendment, and the state con­stitutions in effect when that Amendment was ratified (at least 22 of the 37 States protected the right to keep and bear arms), federal laws enacted during the same period, and other relevant historical evidence. Only then did the opinion conclude that ‘the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights nec­essary to our system of ordered liberty.’ (THOMAS, J., concurring in part and concur­ring in judgment) (surveying history and reaching the same result under the Fourteenth Amendment’s Privileges or Im­munities Clause).

Timbs and McDonald were concerned with the question of whether the Fourteenth Amendment protects rights that are ex­pressly set out in the Bill of Rights, and it would be anom­alous if similar historical support were not required when a putative right is not mentioned anywhere in the Constitu­tion. Thus, in Glucksberg, … the Court surveyed more than 700 years of ‘Anglo-American common law tradition,’ … and made clear that a fun­damental right must be ‘objectively, deeply rooted in this Nation’s history and tradition,’.

Historical inquiries of this nature are essential when­ever we are asked to recognize a new component of the “lib­erty” protected by the Due Process Clause because the term “liberty” alone provides little guidance” (opinion 11-13).

In interpreting what is meant by the Fourteenth Amend­ment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been ‘reluctant’ to recognize rights that are not mentioned in the Constitution. Collins v. Harker Heights. ‘Substantive due process has at times been a treacherous field for this Court,’ Moore v. East Cleveland, (plurality opinion), and it has sometimes led the Court to usurp authority that the Con­stitution entrusts to the people’s elected representatives. See Regents of Univ. of Mich. v. Ewing. As the Court cautioned in Glucksberg, ‘we must . . . exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.

On occasion, when the Court has ignored the ‘appropri­ate limits’ imposed by “‘respect for the teachings of his­tory,’” Moore, (plurality opinion), it has fallen into the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York. The Court must not fall prey to such an unprincipled approach. Instead, guided by the his­tory and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term ‘liberty.’ When we engage in that inquiry in the present case, the clear an­swer is that the Fourteenth Amendment does not protect the right to an abortion (opinion pg 14 – 15).

Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was re­garded as unlawful and could have very serious conse­quences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s ex­panded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of preg­nancy, and the remaining States would soon follow.

Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis. It is therefore important to set the record straight (opinion pg 16).

The original ground for drawing a distinction between pre- and post-quickening abortions is not entirely clear, but some have attributed the rule to the difficulty of proving that a pre-quickening fetus was alive. At that time, there were no scientific methods for detecting pregnancy in its early stages, and thus, as one court put it in 1872: ‘Until the period of quickening there is no evidence of life; and whatever may be said of the feotus, the law has fixed upon this period of gestation as the time when the child is en­dowed with life’ because ‘foetal movements are the first clearly marked and well defined evidences of life.’ Evans ( ‘In contemplation of law life commences at the moment of quickening, at that moment when the em­bryo gives the first physical proof of life, no matter when it first received it’) (opinion pg 21).

Casey elaborated:

At the heart of liberty is the right to de­fine one’s own concept of existence, of meaning, of the uni­verse, and of the mystery of human life.” wish about “existence,” “meaning,” the “universe,” and “the mystery of human life,” they are not always free to act in accordance with those thoughts. License to act on the basis of such beliefs may correspond to one of the many under­standings of “liberty,” but it is certainly not “ordered lib­erty.

Ordered liberty sets limits and defines the boundary be­tween competing interests. Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed “potential life.” Roe, Casey. But the people of the various States may evaluate those interests differently. In some States, voters may believe that the abortion right should be even more extensive than the right that Roe and Casey 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 (opinion pg 30 – 31).

Nor does the right to obtain an abortion have a sound ba­sis in precedent. Casey relied on cases involving the right to marry a person of a different race, Loving; the right to marry while in prison, Turner; the right to obtain contracep­tives, Griswold, Eisen­stadt, Carey; the right to reside with relatives, Moore; the right to make decisions about the education of one’s chil­dren, Pierce, Meyer; the right not to be steri­lized without consent, and Skinner; the right in certain circum­stances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar pro­cedures, …. None of these rights has any claim to being deeply rooted in history.

What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abor­tion destroys what those decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.] See Roe 159 (abortion is ‘inherently different’); Casey, 505 U. S., at 852 (abortion is ‘a unique act’). None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not sup­port the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way (opinion pg 30 – 31).

Both sides make important policy arguments, but sup­porters of Roe and Casey must show that this Court has the authority to weigh those arguments and decide how abor­tion may be regulated in the States. They have failed to make that showing, and we thus return the power to weigh those arguments to the people and their elected represent­atives (opinion pg 35).

The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ inter­est in protecting fetal life. This is evident in the analogy that the dissent draws between the abortion right and the rights recognized in Griswold (contraception), Eisenstadt (same), Lawrence (sexual conduct with member of the same sex), and Obergefell (same-sex marriage). Perhaps this is designed to stoke unfounded fear that our decision will im­peril those other rights, but the dissent’s analogy is objec­tionable for a more important reason: what it reveals about the dissent’s views on the protection of what Roe called ‘po­tential life.’ The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a ‘po­tential life,’ but an abortion has that effect. So if the rights at issue in those cases are fundamentally the same as the right recognized in Roe and Casey, the implication is clear: The Constitution does not permit the States to regard the destruction of a ‘potential life’ as a matter of any signifi­cance.That view is evident throughout the dissent. The dissent has much to say about the effects of pregnancy on women, the burdens of motherhood, and the difficulties faced by poor women. These are important concerns. However, the dissent evinces no similar regard for a State’s interest in protecting prenatal life (opinion pg 37 – 38).

The interested reader can pursue in greater depth the careful search for historic evidence affirming a woman’s right to abortion and the analysis of what was and was not found that is presented by the Court’s majority opinion on pages 1 through 35.  That extensive presentation is beyond the scope, purpose, or need of this article since it is best presented, for those interested in the facts, by the Court’s majority Judges themselves. The purpose of this article is to, as briefly as possible, present the most important arguments of each opinion and to indicate the balanced and comprehensive nature of the Majority opinion’s search for and evaluation of the evidence.

For reasons that will become obvious, if they are not already obvious, I remind every reader of this material that the fundamental issue that was before the Dobbs Court, and that was decided by the majority of Judges of the Dobbs Court, was:  “does the U.S. Constitution affirm and protect a woman’s right to abortion?”

When I began this article, my intention was to initially present each group’s defense of the opinion that they held.  But that has become impossible for me because the three judges dissenting from the Court’s opinion openly acknowledge that the historic facts do not support the original Roe v. Wade claim that the Constitution affirms and supports a woman’s right to abort her pregnancy.  Even worse for their view, these dissenting Judges defend their opinion by claiming that the majority of Judges say and do ugly things that they just do not say or do.  For example:

“It [the Court] says that from the very moment of fertilization, a woman has no rights to speak of”         (dissenting pg 2).

That statement is blatantly not true, as any competent Judge would understand and acknowledge.  What the majority of Judges of the Court essentially said and concluded is that the words of the Constitution do not, either explicitly or implicitly affirm, and therefore do not protect, a right of a woman to abort the life in her womb. Thus, it is the right of the people, through their elected Representatives, to settle the issue of whether such a right exists and if so, whether that right supersedes and extinguishes any rights that the life in her womb might have.

The dissenting Judges also subtly introduce tiny distortions into the conclusions and actions of the majority Judges in response to the facts that were before them for examination.  The majority of Judges explain that the devastating legal fact for those who defend the Roe v. Wade decision is that there is no evidence that anyone thought a woman had a right to end a pregnancy, or that the Fourteenth Amendment affirmed such a right, until shortly before the Roe Court decision.  But notice what the dissenting Judges assert:

The majority makes this change based on a single ques­tion: Did the reproductive right recognized in Roe and Casey exist in “1868, the year when the Fourteenth Amendment was ratified”? Ante, at 23. The majority says (and with this much we agree) that the answer to this question is no: In1868, there was no nationwide right to end a pregnancy, and no thought that the Fourteenth Amendment provided one (dissenting pg 1, 3).

Here again, is a tiny distortion by the dissenting Judges of what the majority Judges actually did find and affirm.  This distortion enables the dissenting Judges to imply, with malice, that the majority did nothing more than assert the absurdity that “Roe v. Wade couldn’t have found a right in the Constitution because, “In in1868, there was no nationwide right to end a pregnancy”.

A careful reader will realize that in their haste to accuse the majority of Judges of wrongdoing, the dissenting Judges just agreed that their claim that the Fourteenth Amendment affirmed a woman’s right to an abortion is not true, because “In 1868, there was … no thought that the Fourteenth Amendment provided one!”  So, it wasn’t the words of the Fourteenth Amendment themselves or what anyone, in 1868, understood the words to mean that established Roe’s alleged Constitutional right. What’s logically left is that it was only the opinion of the majority Judges of the Roe v. Wade Court that “created” that alleged Constitutional right. It is an alleged Constitutional right because the Constitution does not give Judges the authority to create rights just because they believe that is the way things should be.

The powerful evidence against the Roe v. Wade claims that the Constitution affirmed a woman’s right to abortion is the fact that no evidence was found, throughout a vast span of history before and after the date of the Fourteenth Amendment, that expressed or affirmed that people believed in a woman’s “right to end a pregnancy”.

Compare the fact of the absence of anyone affirming the idea that a woman had a right to abortion to the abundant evidence that many white people affirmed that Black slaves were people who did have rights.  This view was so widespread and strongly held that more than 618, 222, mostly white men, died in the Civil War while defending and supporting the right of black people.  This is an important historical detail that too many people studiously avoid acknowledging in our current society, just as the dissenting Judges refuse to acknowledge or even try to offer a rebuttal to the real reason that the Judges of the majority opinion rejected the Roe v. Wade et al decision.  The claim underlying the “Roe” decision is totally unsubstantiated by any evidence from history that the “alleged right” was widely believed, or even believed by anyone when the Fourteenth Amendment became part of the Constitution.

The careful reader might notice that the dissidents harshly condemn the methods of many previous Judges, even of Judge Ginsburg, which in their condemnation they falsely portray as ugly and groundless innovations introduced by the Dobbs Court’s majority Judges.  Indeed, the dissenting Judges show a vast contempt for and express a vicious condemnation of numerous previous judicial arguments, that the majority of Judges quote as normal practice, in support of their approach and decision in the Dobbs case.

Given the evidence of the serious distortions present in those first two quotes of the dissenting judges provided above, I believe that is a reasonably sufficient foundation for me to explain that in my opinion the quotations and arguments of the dissenting Judges are so egregiously misleading and so foreign to decent discourse in presenting opposing opinions, that I cannot list them as a whole. Rather, in a fair promotion of the truth, I must respond to their defects immediately and individually.  Even so, for me, digging through the muck and mire is a painful and unpleasant process.