Abortion (and the Supreme Court Dobbs Decision)

Today, I have posted separate blogs regarding the Supreme Court nomination process, the 2022 religion-related Supreme Court decisions, the Supreme Court’s West Virginia v EPA decision and the NY Pistol & Rifle Association case.  Also relative to the January 6^th Committee hearings and why I oppose appointing Nusrat Choudhury as a District Judge.  I also intend to add a paragraph to my blog regarding Ukraine.

I have been unwaveringly¹ pro-choice since I first became aware of the issue.  However, I also believe that life begins at conception.  Therefore, I acknowledge that abortion is murder.

The most difficult ethical questions occur when various principles are in conflict.  I believe in parental authority and responsibility and that humans should be able to control their body.  I also believe murder is generally² a crime.

In this case, I resolve my competing ethical standards by believing that fetuses do not have rights.  (I was pleased to learn that the justices in Roe v. Wade, Casey and Dobbs all refrain from assigning rights to fetuses.  I had not realized that my personal position in that regard was so broadly held.)

Because I recognize abortion as murder, I routinely describe it as our most difficult political issue to resolve.  It is understandable that pro-life people would find it extremely difficult to accept murder.  Because I respect their position, I have been able to have respectful discussions with pro-lifers.

Roe v. Wade did not support my view.  From my perspective, parents had the right to commit infanticide if their baby was born with handicaps that caused the parents to feel that they could not cope with those problems, that their baby would not have a good life, that the birth would have significant detrimental impact on siblings and possibly other reasons.³  Yes, I’m one of the more extreme pro-choice people that pro-lifers sometimes highlight.

Forcing the woman/family to continue the pregnancy commandeers the woman’s body for the rest of the pregnancy.  It also requires the family to raise that child for a couple of decades or more.  We don’t have a large capacity of waiting adoptive parents.  (To the degree that we had waiting adoptive parents, we could reduce the problem by creating an economic incentive to continue the pregnancy.  Side note: I’ve always thought that a woman should make the final decision about her pregnancy, but that she should discuss it with the father, if it was the result of consensual intercourse.  Perhaps the father could persuade the mother to keep the child or maybe that he would be capable and willing to raise the child with the mother being able to be involved as little as she desires.)

Because people can have strongly-justified substantially different stances relative to abortion, I believe that their positions should be treated like religious beliefs.  Neither side should impose their beliefs on the other side.

Although Roe v. Wade did not endorse my personal position, I accepted it as a compromise.  However, until now I had not read Roe v. Wade.  Over the years, I’ve wondered if Roe v. Wade was a sound constitutional decision.  It has also been clear that some pro-choice scholars did not think Roe v. Wade was justified.  With my recent reading, I’ve learned that some of the pro-choice scholars who questioned Roe v. Wade felt that permitting abortions could be justified under the Constitution in other fashions than relying on the 14^th Amendment due process clause.

How would I have voted on Dobbs v. Jackson Women's Health Organization if I were a Supreme Court judge in that case? 

Initially I did not expect to reach a firm decision because I am not a legal scholar, I did not hear the court proceedings and I was not involved in the court discussions.  Without such involvement, it is questionable whether someone can reach an accurate conclusion.

I expected to respect the Supreme Court’s Dobbs decision because I recognize that laws and the Constitution don’t necessarily support my preferences and because I’d always wondered about the soundness of Roe v Wade.

However, I have concluded that I am NOT supportive of the Supreme Court’s decision in Dobbs.  As explained below, I think they misinterpreted the Constitution and, despite criticizing Roe v Wade and Casey for leaving a lot of questions open, they created a new rule that will result in repeated litigation.

I believe I would have encouraged “stare decisis” or at least requiring state laws to protect some circumstances for abortion (rape, incest, health of the mother, health of the fetus, at least a reasonable period of time after becoming aware of pregnancy) and the right to travel to another state for an abortion.  Roe v. Wade and Casey definitely have some problems, but Dobbs seems too vague and permissive toward state governments.  (Per Dobbs, “A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.” Heller v. Doe, 509 U. S. 312, 319 (1993). It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.”)

The framers of our constitution were reluctant to attach a Bill of Rights to the Constitution because they feared that enumerating some rights would imply that others don’t exist.  To try to protect against such an interpretation, they included the Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”  Indeed, Roe v Wade notes that the District Court cited the 9^th amendment in rejecting the TX law that was the basis of Roe v. Wade.

The framers wanted to protect the citizenry from unreasonable searches and seizures.  From my perspective, banning abortion is an unreasonable intrusion (or seizure) of the woman’s body.

Roe v Wade documents that early laws related to abortion were focused on the mother’s health⁴, but I was surprised and educated by the Dobbs majority’s recitation of significant evidence that common law before the Constitution and state laws prior to the latter half of the 20^th century either totally banned abortion or banned abortion prior to “quickening” (when the fetus’s movement could be easily ascertained).

The dissent in Dobbs counters that the principles the framers espoused protect abortion (as per my intrusion comment above) but that legislatures, judges and others in the first 150 years of our republic did not recognize the applicability of those principles to abortion because laws were not reviewed with women in mind and women were not among the legislators or judges.  I find this persuasive, as the framers were clearly concerned about seizure, etc.

As with other medical procedures, I believe the State has a compelling reason to assure that abortions are done in a safe fashion.  But I do not believe that the State has a sufficient interest in the life of the unborn to outweigh the mother’s rights.

From my perspective, the Roe v. Wade decision included a fundamental problem for pro-choice advocates.  Roe made abortion legal prior to fetus viability outside the mother’s womb.  Technology has been allowing babies to be viable sooner (at the time of Roe, viability was generally accepted after 28 weeks, but the parties in Dobbs considered viability to start at 23 or 24 weeks.)  It seems clear that the time to viability will get even shorter and what if the baby could be transferred to another (human or artificial) womb? 

Changes in technology also erode my “infanticide” position.  To the degree that a pregnant woman becomes aware of fetus impairments earlier during her pregnancy, there is less justification for late-term or post-birth terminations.

Changes in technology have made conception easier to avoid, which also should reduce the problem.  While it is wonderful that the frequency of the problem may be reduced, the significance for the individual who is faced with an unwanted pregnancy remains.

The Dobbs decision says that laws regarding abortion apply at the state level.  I did not see discussion of why Congress would not be able to pass a law regarding abortion.  State-level decisions have some appealing results:

1.      Each side will have jurisdictions that support their view.  Pro-choice states can create what they consider to be a superior standard to the long-term weakening standard that Roe settled on.

2.      If people are in a state that bans their circumstances for wanting an abortion, they can go to a state that supports those circumstances.

a.      I’ve always felt that it had to be unconstitutional for states to forbid citizens to travel out of state for any reason (unless incarcerated, etc.).  Recently, I heard an NPR report in which a lady attorney commented that there is legal precedence for such a decision.  Yikes!  I’d like to fight such provisions and I would beseech legislators not to adopt such a provision.  Even if it is legal, I think it is abhorrent.

b.      Charities would likely fund the cost of travel, etc. for people who needed such help.

3.      Abortion is more likely to be a dominant campaign issue at the state level than at the national level.  So, the voting public is more likely to be successful in electing state legislators who reflect their position.

4.      One of the concerns of Progressives is that the Senate is dominated by rural, Republican states.  If this is a state issue, that concern becomes irrelevant.

5.      The European Union is an interesting comparison, albeit imperfect because the European countries are more independent than are our states.  It is my understanding that the abortion issue has been satisfactorily settled by allowing each country to make its decision and to allow citizens of any country to travel to another for an abortion.

Despite those positives, there are many concerns of course.

My first concern, of course, is the impact of women seeking abortions.  Even if I am willing to compromise, as with Roe v. Wade, Dobbs leaves insufficient guideposts related to state abortion laws as noted above.  Could a woman be fired from her job because of getting an abortion?

Secondly, the majority in Dobbs criticizes Roe v Wade and Casey for not succeeding in settling the law, but they have assured that case after case will be tried to determine whether a state legislature had a rational basis on which to think a particular abortion law would serve legitimate state interests.

A third concern is that other laws may also be impacted by this decision.

A fourth concern is that court decisions (at various levels) may be re-visited.

A fifth concern is that Supreme Court nominees may have lied in their Senatorial hearings.  At the time of Justice Kavanaugh’s appointment, I thought he would be an excellent Supreme Court judge, but I concluded at the end that I would have voted against him because I felt that he lied to the Senate about his substance use while in high school.  (Note: I did not update my Kavanaugh blog at that time, although I hinted at this position in my 2018 holiday greeting.)

We have not heard Mr. Kavanaugh’s side of the story.  As noted above, judges should not have pre-determined positions.  They should listen to the facts and arguments in the case and learn from their peers’ commentary and other Constitutional insights they may have picked up while being a member of the Supreme Court.  Maybe he changed his position; maybe there is another explanation.  How can I judge his vote in the absence of such information?

 

Notes:

¹Being unwavering is not necessarily a virtue.  We should be willing to reconsider our opinions.  As noted herein, my opinions on abortion have changed a bit.  I refer to myself as unwavering to expose the strength of my conviction.

²Murder is acceptable in self-defense or protecting others, including in war, or combatting terrorism or crime.  I also support the death penalty, but that is not germane to the point of this article.  I’m NOT saying that all murders in war or policing are valid, but sadly some are.

³Roe v Wade noted some of these potential family problems as follows:

“Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.”

⁴Quotes from Roe v Wade:

“The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the State's interest in protecting the woman's health rather than in preserving the embryo and fetus.⁴⁸”

⁴⁸ See, e. g.. State v. Murphy, 27 N. J. L. 112, 114 (1858).

“throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today”

“organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family.^58”