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.
Good article Greg. Roe v Wade itself ignored the Federalism issue which alone makes it worthy of. being overturned. At the time of Roe v Wade, most States had heavy restrictions on abortion. More to your point, now many States would not return to their former position. Thus the train wreck. It will be a great disaster if the rights of the unborn are not defined. Maybe that would require a Constitutional Amendment.
Greg,
There are two different areas to consider here. From a legal, Constitutional basis, it would appear to me that the draft opinion gets it right. There is no Constitutional right to an abortion.
And so, if the draft decision stands, we will find ourselves in a position where each individual state will have to decide where it stands on the question. And, unfortunately we live in a far different world than the world of 1973.
Which brings us to the second area, which is far more difficult to deal with: changing the moral viewpoint of the society in which we live.
Frankly, I don’t believe that this decision will make a huge difference in the number of babies that are aborted. It will become easier for some women and harder for others. Ultimately, if we want abortions to cease, we have to convince people that having an abortion is wrong.
So, we can celebrate a victory for a little while. But the fact is that we’ve been so focused on changing the minds of a few people on the Supreme Court, that we’ve missed the fact that ultimately we’re going to need to change the minds of millions of our countrymen.
Albert, I generally agree with you on the second point. Changing hearts and minds is where the battle appears to be heading, and that’s an area that has needed more attention.
On the first point, though, I would only characterize the draft as half right. The Constitution doesn’t grant a right to abortion. However, it does, offer some degree of protection for life. To this end, the draft doesn’t get it right.
The draft relegates the unborn to chattel. It rejects the proposition that the unborn innately have rights or legal interests, and only supports the states authority to grant those rights.
To that extent this decision is very much anti-life.
Where did you get the idea that the Constitution grants rights? The Federal government through the Constitution recognizes and protects those rights. The People and the States have many rights not enumerated, but inherent to humans. The Court got it right 100%, but half a century late. It is the Court’s duty to interpret and follow the law without regard to the outcome as neutral arbiters. Now unfortunately it appears that 50 States will have the opportunity to get it right or wrong as it should be if the States are sovereigns in matters aside from Constitutional and Federal issues to which the States and People granted the Federal government powers enumerated in the Constitution. The States and People retained the powers and rights to decide this issue. Some will get it right and some will get it wrong, depending on ones belief system. The people can vote with their feet if their State gets it wrong in their view. God will have to sort this one out. The reality is moral people will govern themselves better than less moral people. Roe v. Wade was Unconstitutional and had to go. If your State gets this issue wrong, it is a free country. Go to a State that protects the rights you believe in. Better the States be divided than the People. Let the People of each State decide and live with that decision or vote with their feet.
Brad, the Constitution can grant legal rights that are distinct from natural (moral) rights. The Constitution should regocnize natural rights, and the courts should recognize those rights as subsnative due process rights.
Greg,
The term chattel is most often used when referring to slaves. Cargo may be a better word. Seems women are the chattel as regards the Alito memo. Also, the notion that any woman who wants an abortion can just hop a plane to Chicago is naive at best. But the disingenuosity of the right focusing on who leaked the memo rather than the effects of overturning Roe overlooks the Texas bounty law, for whom other state’s abortion laws are being modeled, makes no exceptions for rape and incest after six weeks. Also, no mention of the chaos which will surely ensue if Alito gets his way. Methinks Republicans are over their skis going into the fall. Say it with me, Governor O’Rourke.
Loren,
Slavery was wrong for many reasons, but the denial of personhood and treating the slaves as property is what caused them to be treated as chattel. If if someone operates from the position that the unborn babies are distinct persons with innate rights then they are situated the same as slaves were hence chattel is appropriate verbiage.
In the draft decision Alito is saying that the states get to decide. I can see your reasoning. Not saying I agree, but I can see where you are coming from. Even accepting your argument it doesn’t bear on my argument that the decision treats the unborn babies as chattel belonging to the mother.
What’s striking in our discussion is we fundamentally disagree on the underlying issue of abortion, but we both seem to have the same conclusion that the draft decision is bad, and that we have similar warrants to the unhappiness – that the decision doesn’t recognize the rights of (baby/mother). Not quite sure what to think of that yet, but it’s notable and requires more thought.
Good point. I struggle with the unborn baby label and the dictionary is not much help in differentiating a fetus. Seems like common sense that a woman should be able make her own decisions about her own body. Let’s keep the government noses out from under our wives and daughter’s skirts. You’re a small gov guy. Anyway, this issue is a winner for us, let’s keep talking about it.
I didn’t get through Greg’s entire tome but I am pleased with the draft ruling if it stands. I have no desire to marginalize or deviate from the basic principal that killing an infant is not good (okay evil).
We made a decision as teenagers not to abort. Forty six years later we couldn’t be happier about the outcome. My heart does go out to the girls I know that did have abortions and regretted it.
But there is another issue regarding abortion that bares the age old notion of follow the money. By making abortion not only legal but then burnishing it as a right that not only must be protected but lavishly funded at the national AND international level, paid for by those of us that regard the practice as immoral was the rein that led the horse back to the barn. By making it a federal requirement to participate in this abomination was the ticking time bomb that took 50 years to finally detonate.
My hunch is the elected dems and their enablers see some of their skim being depleted and that has them more upset than the murdering babies issue.
Dan, the basic complaint with the decision is the draft decision:
1) Allows the states to decide. Full Stop. This means that the state can enact legislation that says abortion on demand at taxpayer expense.
2) States the decision is not based on the cognizable legal interests of the unborn baby. It doesn’t recognize that killing the babies is bad.
3) States both sides present compelling public policy interests. It means that the Supreme Court is agreeing that killing the unborn babies is a legitimate state interest.
Roe was bad. This is worse as it lets the states grant legal rights of abortion at taxpayer expense if a state desires AND also does not recognize any innate rights or legal interests of the baby.
Your last paragraph is the status quo at the federal level. When PP gets millions in federal grants and can declare it goes for everything but abortion it is beyond absurd to believe that the fiscal entanglement doesn’t allow that very thing. Add grift to democrat initiatives to this kick back scenario.
The draft recognizes there is no constitutional right for abortion. What is not declared a right in the constitution is left to the states or individual to determine.
What you are advocating is having the Supreme Court take ownership of creating laws. That is what got us here.
There is much to be challenged in current law. For instance, why does every citizen in every state have jurisdiction to challenge the altering of a stream path through federal regulation (FEMA through USACE) yet 26 states can’t get standing to challenge a clearly fraudulent federal election in several easily identifiable locations?