I’m sure there is going to be significant blowback on this post, and contemplated not writing because of the negative reaction that’s going to follow. However, in light of the irrational exuberance in the wake of the leaked draft decision in Dobbs v Jackson Women’s Health Organization this needs to be written. The draft decision is horrific. We will soon see who understands law and who simply understands politics.
When addressing Roe three options for modification are available. First erode Roe, but keep the “central holding” intact. Second, overturn Roe based on federalism principles. Third, overturn Roe, and replace with a different decision based on the right of the unborn child. The draft decision falls squarely in the second option and seemingly rejects the third option. This leads to utterly horrific outcomes.
Federalism and the End Result of the Decision
The draft makes clear the Supreme Court is returning the issue to the states. In various places the decision states:
It is time to heed the Constitution and return the issue to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like the most important questions in our democracy: by citizens trying to persuade one another and voting.” (Emphasis added)
Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated. (Emphasis added.)
Both sides make important policy arguments… and we thus return the power to weigh those arguments to the people and their elected representatives. (Emphasis added.)
It’s clear from these statements that the Supreme Court is returning the power to the states to decide what is and is not permissible in the particular state. If Texas doesn’t allow abortions, and someone wants an abortion they simply need to travel to a state where abortion is permissible. The draft opinion empowers states to authorize abortion on demand at taxpayer expense.
If you can’t get an abortion in Houston simply hop on a plane and get the abortion in Chicago or one of the many other direct flight destinations that will have abortion available. The impediment to abortion becomes an issue of logistics. Logistics can easily be overcome. Judge Hidalgo already has tried to implement Harris County paying for such travel in the wake of the heartbeat bill. Private companies are saying they will offer such travel as an employee benefit.
Unborn Babies are Regulated to Chattel
The specter of abortion on demand at taxpayer expense isn’t the only disturbing consequence if the draft decision is adopted. The Court also in effect categorizes the unborn child as chattel. The Court states:
Our decision is not based on any view when a State should regard prenatal life as having rights or legally cognizable interests. (Emphasis added.)
By specifically mentioning their decision s not based on prenatal life as having rights or legally cognizable interests the Court denies the personhood of the baby. The baby is simply chattel in the sole control of the mother. This decision is incompatible with the ban on partial birth abortion since that decision is rooted in the rights of the baby. To maintain the ban on partial birth abortion will now require a definition of birth as when any portion of the baby exits the birth canal or some sort of other similar reasoning.
This is an artificial demarcation that has no basis in science or reason. Under the draft decision liberal states can, and will, pass legislation that allows an abortion to occur during active labor but before the baby has exited the birth canal. The radical left has already changed their mantra from “safe, legal, and rare” to “abortion on demand at anytime at taxpayer expense with no apologies.” Where will the line be drawn?
Rational Relationship and Difficulty Initiating a Challenge
Any proposed legislation allowing abortion on demand at taxpayer expense will be difficult-to-impossible to successfully challenge. As an initial matter standing to initiate a challenge will be difficult. Fathers do not have rights regarding their unborn child so they will not have standing to challenge any legislation. The Religious Freedom Restoration Act and Hobby Lobby line of reasoning is not going to offer an effective vehicle for challenging legislation. At best that could create a cut-out with a workaround for entities with deeply held religious beliefs. Finding someone or some legal entity with standing to file a challenge to permissive abortion legislation is going to be an exceptionally difficult task.
Even assuming someone could successfully initiate a challenge and survive a standing challenge the standard of review is going to be difficult to overcome. The decision adopts the rational relationship test for reviewing abortion related legislation. This standard of review requires the government to have a legitimate interest, and the proposed legislation to have a rational relationship to the interest.
Remember the both sides present compelling arguments statement in the decision? That’s acknowledging that the government has a legitimate interest in promoting abortion. As long as permissive abortion policies are rationally related to the interest the policy passes constitutional muster. The Court essentially is giving the blueprint to pass permissive abortion legislation in the decision.
Be Careful What you Wish For
The old adage “be careful what you wish for, you just might get it” seems to aptly describe the draft decision. With the Supreme Court specifically stating, “Our decision is not based on any view when a State should regard pre- natal life as having rights or legally cognizable interests” the unborn are left without protection in liberal areas where the states will pass permissive legislation. In effect, this eliminates any legal barrier to abortion. The only barrier becomes one of logistics – how does the mother get to a location where abortion is permissible?
We should not be celebrating. This is a disaster in the making.