Part I introduced the issue of the right to have an abortion because it is of sufficient importance to society to understand the decision reached by the Supreme Court to overturn Roe vs. Wade. Part II developed this thesis.
The dissenting judges selectively make the following complaint against the majority decision as they grievously misrepresent the majorities argument:
The lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history”: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty (dissenting pg 5)
The quote of what the majority of Judges believes is technically true; it is just not the reason they give for their decision. The reason why the majority of Judges reached the decision they did is because they could find no evidence of a widespread opinion that it was a woman’s right to abort the fetus in her womb. Absent such evidence, there is no factual foundation for asserting that such a right exists and was intended to be protected by those who wrote or approved this part of the Constitution.
I submit that the most important detail here is that this whole quote is an example of how to tell a lie using a tidbit of truth altered in its meaning by the context of a lie. The gargantuan lie is that “The lone rationale for what the majority does today is ….” An untrue phrase that consigns to the garbage heap everything in the majority opinion not quoted by the dissenting Judges.
The majority of Judges state as a standard or requirement of Constitutional interpretation that there must be evidence showing that society did believe in a particular right at the time a particular part of the Constitution was written, to enable Judges to conclude that “that an alleged Constitutional right” was indeed an “unstated right” affirmed by the Constitution.
The distinction I am striving to identify is that there must be evidence that people believed that the “alleged right” exists; not that there must be evidence that people believed it was part of the Constitution. Requiring the first kind of evidence is reasonable. Requiring the second kind of evidence would be absurd. And the Judges of the majority did not remotely suggest that absurd requirement as support for their decision.
The majority of Judges of the Dobbs decision carefully presented the results of their historical search, which did not show that “there were people who believed that a woman had a right to an abortion” and therefore they concluded that Roe v. Wade needed to be overruled. Incidentally, the historical evidence actually shows that there was a widespread opinion that a woman does not have “a right to abort the human life in her womb”.
Rather than answer the facts provided by the majority Judges, the dissenting Judges first introduced their subtle distortion of the majority’s opinion, and then make another malicious accusation that the majority Judges were not being honest or truthful.
The same could be said, though, of most of the rights the majority claims it is not tampering with…. So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other (dissenting pg 5).
The dissenting Judges totally fail to acknowledge, and even strive to conceal, the majority Judges’ clear and emphatic affirmation that the crucial and unique detail that is central to abortion is the fact that abortion kills the distinct and separate life in the woman’s womb. The dissenting judges not only want the people of the United States to ignore that fact, they clearly show that they as judges do not give that detail serious thought, concern, or importance.
In the pursuit of their malicious accusations against the majority Judges, the dissenting Judges inadvertently admit that Roe and Casey have been the source of a “broad swath” of further Court decisions based upon the same defective misconduct of Judges deciding cases on what they believe should be rather than what the Constitution actually does say and mean.
We start with Roe and Casey, and with their deep connections to a broad swath of this Court’s precedents (dissenting pg 6).
In that statement, I submit that those dissenting judges have just presented the strongest reason for why Roe v. Wade”, with its departure from any real grounding in the actual meaning of the words of the Constitution, needed to be overturned. It was essential to end the further destructive effect of Roe v. Wade’s support for so many additional defective decisions in later cases; decisions that also lacked any substantial basis in fact.
Possibly the worst violence against Constitutional law is that the dissenting judges also ignore the fact that even though wrongly decided, many of those other cases do not involve the destructive character of Roe v. Wade and Casey. Thus the principle of Stare decisis would likely leave the decisions and their character as precedents unchanged for the specific issues involved.
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 (dissenting pg 6).
If the other alleged “rights” actually existed, they would not have needed a decision of the Court to lead to them. I submit that the only foundation supporting a number of Court declared “rights” is that a majority of the Court’s Judges, acting on their personal idea of “what should be”, declared that they are “rights”.
The truth of that statement does not mean that I support the way things were done 100 years ago. People sometimes do the right thing for the wrong reason! When that happens, the goal that I believe in and support is to do the right thing but based on the right reasons, rather than on a fraud.
Notice that the dissenting Judges would have us ignore the factual evidence confirming that “Roe and Casey are aberrations: They came from nowhere, ….” In sharp contrast, the majority of Judges warn that Roe and Casey are not harmless, but would in fact lead to further judicial incursions if not corrected.
The dissenting Judges assert that:
Like Roe, Casey grounded that right in the Fourteenth Amendment’s guarantee of “liberty.” That guarantee encompasses realms of conduct not specifically referenced in the Constitution: “Marriage is mentioned nowhere” in that document, yet the Court was “no doubt correct” to protect the freedom to marry “against state interference (dissenting pg 9).
In fact, the Fourteenth Amendment explicitly states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; …; nor deny to any person within its jurisdiction the equal protection of the laws.” That statement is sufficiently clear that neither the Roe v. Wade nor Casey decision of the Court is needed to justify the Court’s striking down laws prohibiting interracial marriage in some states. Those state laws were a clear violation of the basic human right to marriage by one man and one woman, which is clearly an inherent right that long preceded the Constitution.
That fact—the presence of countervailing interests—is what made the abortion question hard, and what necessitated balancing. The majority scoffs at that idea, castigating us for “repeatedly praising the ‘balance’” the two cases arrived at (with the word “balance” in scare quotes). To the majority “balance” is a dirty word, as moderation is a foreign concept (dissenting pg 12).
Please do note that the dissenting Judges make at least four false accusations in this one quote. The objection of the majority opinion is to the misuse of the word “balancing” to describe a situation in which there is effectively no “balance” in what is asserted. The majority very well understands and accepts the meaning of the words “balance” and “balancing”. It is the dissenting judges who support recent legal practice, which does not recognize “any [real] limitation of a woman’s right to an abortion” right up to and including the process of giving birth!
Of course, the majority opinion refers as well to some later and earlier history. On the one side of 1868, it goes back as far as the 13th (the 13th!) century (dissenting pg 13).
On the other side of 1868, the majority occasionally notes that many States barred abortion up to the time of Roe. See ante, at 24, 36. That is convenient for the majority, but it is window dressing. As the same majority (plus one) just informed us, “post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text. New York State Rifle & Pistol Assn., Inc., 597 U. S (dissenting pg 14).
Contrary to the innuendo of the dissenting Judges, the underlined quote clearly supports the majority Judges’ argument and decision. As the majority of judges carefully explained, they were searching to see if they could find any support for the idea that a woman had a “right” to abortion throughout that time span. But the only information that they found was explicitly contrary to such an alleged “right”.
Or said more particularly: If those people did not understand reproductive rights as being a part of the guarantee of liberty conferred in the Fourteenth Amendment, then those rights do not exist (dissenting pg 14).
On the contrary, as the majority of Judges carefully explained, if there is no evidence that people believed in the existence of “reproductive rights” throughout that time period, then the words of the Constitution could not be a confirmation of – a Constitutionally recognized but un-enumerated right. What is not obvious about that concept?
In fact, the majority of judges took a neutral stand with regard to whether such alleged “rights” do or do not exist. They chose neutrality because they did not find anything strong enough “in the words of the Constitution”, illuminated by history, to guide them towards either viewpoint concerning that alleged right.
The Court reverses course today for one reason and one reason only: because the composition of this Court has changed. Stare decisis, this Court has often said, ‘contributes to the actual and perceived integrity of the judicial process by ensuring that decisions are ‘founded in the law rather than in the proclivities of individuals.’ (dissenting 6).
Both of those statements are absolutely and sadly true. But for a very different reason than the quote superficially implies and that the dissenting Judges claim. Note that most of the Judges of the majority hold that the Constitution as written is a binding document in terms of its fundamental meaning and values, while the three dissenting Judges hold and argue that the Constitution is a living document whose meaning is anything that Judges of the Supreme Court decide to say it means.
The Judges of the majority opinion hold themselves honor bound to do their best to understand and decide issues as the framers and approvers of the Constitution intended! The dissenting Judges claim the power to decide cases according to their personal opinions of how things should be. Their sworn oath to uphold the Constitution is meaningless.
The majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did. And that is indeed what the majority emphasizes over and over again. See ante, at 47 (“[T]he most important historical fact [is] how the States regulated abortion when the Fourteenth Amendment was adopted”); see also ante, at 5, 16, and n. 24, 23, 25, 28. If the ratifiers did not understand something as central to freedom, then neither can we. Or said more particularly: If those people did not understand reproductive rights as part of the guarantee of liberty conferred in the Fourteenth Amendment, then those rights do not exist (dissent pg 14).
Do pause and see that the dissenting Judges have distorted the real opinion that the majority Judges affirm. They did this by merely leaving out the concluding and limiting words “in the Fourteenth Amendment”. Or putting that another way, “If the people did not recognize “reproductive rights” as part of the guarantee of liberty protected by the Fourteenth Amendment, then the Fourteenth Amendment did not either create or protect that alleged right.” The majority Judges affirm and defend the vital principle that the Constitution cannot do something that no one writing it or approving it intended it to do. Do thoughtfully read the quote from The Federalist # 78, that I include further down, which clearly affirms and explains this important truth.
Statements in the Constitution are not some kind of “magic wand” to be used any time a majority of the Judges decide to create a new “right” simply by declaring that it exists. As the majority Judges affirmed in their decision, if today the people chose to affirm the “alleged rights” promoted by Roe v. Wade and supported by the dissenting judges, that is the people’s Constitutional right. But judicially imposing such a right on the people against their will is not a power conferred on the Judges of the Supreme Court by the Constitution. I can only hope that a majority of the citizens of the United States recognize the threat to their liberty that is posed by the views expressed by these dissenting Judges in that last quote.
A fundament feature of the Constitution as written was the protection it provides through “checks and balances” against the uncontrolled usurpation of power by any one of the three branches of Government. The theory works on the expectation that each of the three separate branches would, by defending its own interests against excessive claims of the other two branches of Government, serve to protect the interests of the people.
Unfortunately, today, all three branches of the Government have joined together with the same goal of imposing ever more restrictive limitations on the liberty of the people. Beneath the mock concern for the rights of women and minorities, the freedom of the people to quietly live by the values they believe in are being rapidly eliminated. An athletic coach cannot even quietly pray in the center of the field after the end of a game, because that offends someone. Yet, if a small group, defined by judges as “a minority,” doesn’t want to hear a male or female pronoun, that has been accepted for centuries, then the rest of society must accede to that demand or suffer the legal consequences. As another example of judicial excess and imbalance, doctors, nurses, and pharmacists have no right to say “no” and no legal recourse to demands that they either participate in abortions when told to or take up some other occupation.
Incidentally, I have the quaint and antiquated idea that a crucial test of a “real human right” is that “a human right” is something that is enjoyed equally by every person.
