Roe v. Wade

Let's stick my face in this fan and see what happens!

Holy moly!

Unless you’ve been living under a rock, you might have noticed that a draft decision from the Supreme Court of the United States (SCOTUS) was leaked to Politico earlier this week. This draft decision was written by Justice Alito and claims to have majority support for the complete and unambiguous overturning of Roe v. Wade and Planned Parenthood v. Casey.

First a little background

Roe v. Wade was decided by a majority opinion in 1973 and effectively guaranteed the right of women in the United States to have abortions under certain circumstances. Casey was decided in 1992 and expanded on Roe’s earlier decision.

The case in question before SCOTUS now, and about which the draft opinion was leaked was Dobbs v. Jackson Women’s Health Organization. The long and the short of it is that Mississippi passed a law that effectively banned abortion after 15 weeks. It was challenged and ended up before SCOTUS.

In oral arguments, a full frontal attack against Roe and Casey were made. The lawyers for Dobbs were not only attempting to keep the post 15 week abortion ban on the books, they were looking to take down the precedent and return to the pre-1973 situation where abortion law was handled by the states.

The lawyers for Jackson Women’s Health Organization were arguing that the 15 week ban was in violation of Roe and Casey and that Stare Decisis demanded that any argument that attacked settled precedent should not be considered and that the law should be deemed unconstitutional on that basis.

Apparently, the majority of the court, at the time of the writing of the draft opinion, concurred with Dobbs. It is believed the count at the time was 5-3-1, with Justices Thomas, Alito, Kavanaugh, Barrett, and Gorsuch in the majority with Justices Sotamayor, Kagan, and Breyer dissenting and Chief Justice Roberts writing his own opinion that the law should be upheld but that Roe and Casey should not be thrown out (splitting the baby, so to speak).

What does this mean and what does it not mean?

There’s a lot of nonsense out there from both sides exactly where things stand right now and what is likely to happen. Let’s go through a few things that keep coming up in news articles and videos.

First, this is a draft opinion and does not necessarily reflect the court’s final decision. In an opinion of this magnitude, a decision would go through many revisions and be circulated among concurring Justices for months with additions and strikes of all kinds being made. Justices might decide not to support it or there’s might join the majority. That said, Chief Justice Roberts has confirmed that the draft is real, and therefore it is reasonable to conclude that it does indicate a vote of the majority of the court to overturn Roe v. Wade could be imminent.

Second, the leaking of a draft decision like this is unprecedented and an obvious attempt to sway the court. More on that later.

Third, since this is a draft opinion, at this time nothing has changed. Abortion is still protected under the same precedents today as it was a year ago.

Fourth, if SCOTUS issues this decision or one like it, abortion would not become illegal in America. Somewhere in the neighborhood of 20 states have trigger laws in place that, in the event Roe is overturned, abortion would become effectively illegal in those state in some fashion. Their language varies but almost all of them have language protecting the life of the mother and making exceptions for rape and incest.

I am not an expert on these laws and haven’t read them so I could be wrong about that in some cases. Having said that, it is very likely that if a state banned abortion to save the life of the mother or in a case of rape or incest, that the law would be struck down.

Fifth, Democrats in congress are responding by attempting to “codify Roe” which means that they want to pass a federal law protecting abortion rights nationally. There are arguments that this law would similarly not pass constitutional muster. There are also arguments that using the Commerce Clause it might pass muster. Either way it is very unlikely that this will actually happen as Democrats do not have the votes to pass such a law, even with Sens. Collins and Murkowski voting as pro-choice Republicans.

Sixth, Kentanji Jackson has been confirmed as a Justice but hasn’t yet been seated because Justice Breyer is finishing this year on the court. There are only 9 Justices and until Breyer officially retires, Jackson is still in waiting. She didn’t have access to this draft decision, she isn’t in on the deliberations, and she doesn’t currently have a vote on the court.

Seventh, protests, threats, and demonstrations are extremely unlikely to move a Justice to change their vote. If a vote is changed it will be because they changed their mind on the law. Whatever the decision is, is what it will be. No amount of pro-life marching for life or pro-choice pink pussy hats will move them.

Breaking down the legal arguments

Pretty much all court watchers have known since 1973 that Roe v. Wade was decided on shaky legal ground. I think one could make an argument that individuals do have a right to make their own decisions about abortion without state interference, however that right is definitely not enumerated in the Constitution and therefore under the 10th Amendment would normally be left to the states, localities, or individuals.

In order to get around this and federally mandate that states allow certain abortions, the majority of the court in 1973 utilized the idea of a right to privacy, not specified in the Constitution but first imagined in a case called Griswold v. Connecticut in which the court struck down a law banning the use of contraceptives.

Utilizing this “right to privacy” which according to Justice William Douglas in Roe, came from “emanations of penumbras” in the Bill of Rights and making its way to the states through the 14th Amendment and the Equal Protection clause… none of which say anything about privacy or abortion.

Please note, this is not me saying that Roe v. Wade is bad or that I am taking a side here… I’ll conclude this article with my thoughts on abortion so my biases and beliefs are plain for everyone to see… but even Ruth Bader Ginsberg understood and stated many times that the decision was vulnerable to being overturned. That’s the fact of Roe. It was vulnerable from the start.

That weakness in the decision and the strong opposition to Roe is why the court felt the need to take up the case Planned Parenthood v. Casey which strengthened Roe v. Wade and was specifically written to protect Roe under strong precedent.

Precedents in appellate law are not just suggestions. The long standing concept of Stare Decisis demands that only under very extreme circumstances is a court, even SCOTUS, permitted to revisit settled precedent.

Having said that, decisions do get overturned sometimes. Famously, Plessy v. Fergusson, which established the concept of “separate but equal” and allowed for Jim Crow to create an apartheid state in large swaths of our county was overturned by Brown v. Board of Education. But like in Brown v. Board, when major precedents are overturned the consequences for society are often monumental.

The argument against overturning Roe is not so much that Roe was perfectly decided, but that Roe and Casey are settled matters on which mountains of case law are built, and that revisiting them is both inappropriate and likely to create unintended consequences that are not foreseeable. That is why Stare Decisis must be respected.

Unintended consequences?

Look at it this way. If Roe is struck down in such a way as to bring Griswold v. Connecticut into question… and it’s hard to see how one could make the argument that Roe was erroneously decided without bringing up the fact that in Griswold the court simply invented the right to privacy though emanations of penumbras or whatever other logical long jumps… then other decisions which counted on Roe and Griswold could be successfully challenged.

What are those decisions? Well Lawrence v. Texas (2004) comes to mind. That’s the case where SCOTUS struck down sodomy laws, effectively making it legal to be a gay person in a red state. Another is Obergefell… the decision guaranteeing gay marriage, nationwide. What happens if the court revisits Obergefell v. Hodges? Would lots of legally married people all of a sudden be just roommates again?

I understand that these are just hypotheticals. There is no political will on either side of the isle to revisit sodomy laws or gay marriage. Actually in the leaked draft opinion, Justice Alito specifically explains that this decision should not be used to revisit any decision other than Roe. But the logic is the logic… and at some point in the future, if this decision is presented by the court as it is written, a smart lawyer could make the argument that there is no right to privacy and therefore a state would have the right to jail two married men for having sex in their own marital bed.

While emanations of penumbras has always been a bit of an eye roll, revisiting Roe this way could, at some future point, bring things to pass that nobody could have foreseen.

Does that make revisiting it wrong? Not necessarily. After all, if you are of the opinion that Roe is leading to the killing of millions of innocent lives, as pro-life activists believe, perhaps a hypothetical risk to a couple of horny gay guys is acceptable. It’s really not for me to say… But that’s the argument.

Talk about the leaker

The fact is that it is both incredibly irresponsible, unethical, and possibly illegal for someone to leak a draft SCOTUS opinion. It is pretty much unprecedented and is seen by most court watchers as the gravest of transgressions against the court.

The reason that it’s such a big deal is that SCOTUS has always held that they were above petty politics and are not able to be lobbied by political activists, elected or otherwise. This is important because all 9 Justices do, in fact, interpret cases based on sound law, precedent, and their own judicial philosophy. While their decisions do vary in some cases with the “liberal” Justices siding with what Democrats want more often and “conservative” Justices siding with what Republicans often want, it really isn’t that simple.

There are different valid ways of interpreting the law and there are also exceptions to deeply held principles. While conservatives like former firebrand Justice Scalia were fond of an “originalist” view of law, meaning that laws mean what they meant when they were written… others like Justice Bader-Ginsberg were textualists which means that laws should be interpreted to mean what the current understanding of the text means.

Here’s an example. Looking at the language of the Second Amendment (the right to bear arms), it is clear from the founders other writings in the Federalist Papers and elsewhere what they meant, at the time, by the language of the Second Amendment… that American citizens should have legal access to firearms as a backstop against tyranny. That is an originalist argument.

The textualist argument would be that the text clearly states that “militias” should be armed, meaning National Guard units and not individual citizens. Furthermore the framers couldn’t have imagined modern weaponry so the right should be restricted to weapons from that period.

Justice Scalia believed that it was the original intent of the framers that the American public should be armed with modern weaponry, which is backed up in their writings and therefore should be the law of the land. Justice Ginsberg believed that the intent of the framers is subservient to the words they used to write the amendment… so as language and culture evolve, so does the Constitution, making it a “living document”.

Understand that while both opinions are not equal, both are valid interpretations of law. It is through those and other judicial philosophies that decisions are reached, not through partisan activism… even though it might seem that way sometimes.

The leaker, who will likely be identified as a clerk working for Justice Sotamayor, threw all of this out, and instead took part in a cynical political game to attempt to pressure the Justices to change their positions.

Not only was it a morally outrageous act, it also belies a deep misunderstanding of how Supreme Court Justices arrive at their decisions. It’s unfortunate and hurts the court. That’s why people are pretty upset about it.

Does this hurt the Republicans in the midterms?

The short answer is I doubt it. It seems that people who are motivated to go to the polls on abortion are already firmly in one camp or another. Overall it probably hurts the GOP more than helps them, but I don’t think anything will change what’s going to happen in November.

Okay Virgil… That’s more than I wanted to know. So what do you think about abortion, anyway? Are you pro-life?

The abortion debate is interesting because it is so morally clear in some ways and incredibly opaque in others.

As for the law, I am neither qualified nor inclined to say whether Roe should be overturned. I honestly don’t know. I’ve read a lot about it and heard some pretty good arguments from brilliant people on both sides. I do believe Roe was badly decided… I don’t think that is particularly controversial among people who really understand it, but I am not sure it was so wrongly decided that we should open the pandora’s box that is the “right to privacy”. Stare Decisis isn’t just cop out, it’s an important legal standard… because just tossing out every incorrect decision without an understanding to what that does to law built on those precedents is a very bad idea.

So as for the legal question, my answer is a firm “I don’t know and so can you!”

We weren’t asking about you legal opinion, professor… Tell us what you think.

Alright, but don’t yell at me. I believe some contradictory things about abortion. First, I believe that an unborn child is exactly that, an unborn child. I am not a parent, but I have been with so many friends as they became pregnant and grew a baby in their womb. Unfortunately I have had friends, as most of us do, that have lost children late in their term.

Watching those parents grieve for the loss of that child, there is simply no mistaking what they lost. It wasn’t a cluster of cells. It wasn’t a fetus. It was a baby. And when it dies, parents grieve like they lost a baby… because they did.

I also believe that there is a massive difference between the first couple of months of a pregnancy and later in term. Much like asking the moment a caterpillar becomes a butterfly, it is not something I am qualified to put a date on, but undoubtedly there is a point where the unborn baby is not formed or sentient or recognizable and then there is a point where it is. I don’t know when that happens but I know that it happens.

I can tell you I feel differently before that point than I do afterward. While I believe abortion is always a tragic end to possibilities and life, it is more tragic after whatever point the transformation happens.

The fact is that abortion just isn’t my issue. I am a gay man. I don’t sleep with women. I don’t have any children. But I do care about children and I don’t think that they should be killed.

Furthermore, were I to get drunk and knock some girl up, I think I would want her to have the child. I have the means to help support it and I think I would be a good father. Would it change my life? Yes. Is that a reason to snuff out another life? No.

Having said that, I can also imagine myself as a father. I can imagine having a 14 or 15 year old daughter that does something dumb… because she is 14 or 15 and some moron wispy mustached little shit knocks her up. I can imagine being very tempted to make that problem go away, ethics be damned. I believe I would violate my ethics to save my child’s future.

But again, this is all hypothetical, because this isn’t my issue. So when asked, am I pro-life? I answer yes, except for when I’m not. Or maybe I am wrong and my imaginary wife and hypothetical daughter and I would decide to have the baby and bring it into a loving, if unconventional home. But I’d definitely murder the little bastard that knocked her up… that’s an easy decision.

I guess in the end, I have to settle on this answer: In the event that I was tempted to avail the services of an abortionist… for whatever long list of reasons people choose such a path, some more valid than others… I would pray about it. I would talk to the people I respect and trust and people who love me. I would wrestle with it and understand whatever decision got made, it would change my life.

But the one thing I don’t think I would do is ask what the government wanted. And if that’s my position for me, how can my position be different for you?

Happy Friday all!

—Virgil

Non Sequitur

The article series from last week will continue this weekend or early next week. But it seemed crazy to be someone who writes about culture and not write about this.

See ya’ll soon!

—V