A wonderful day for democracy| National Catholic Registry

It seems impossible for me to write the following words: Today, the United States Supreme Court overturned the two decisions that had fabricated a constitutional right to legal abortion: Roe vs. Wade and Family planning c. Casey. His opinion in Dobbs v. Jackson Women’s Health Center means that the Constitution no longer protects abortion. Abortion is again – as it was before the date of the deer opinion, January 22, 1973 – a matter for state legislation.

This long paragraph of the majority opinion summarizes its conclusions:

deer was on a collision course with the Constitution from the day it was decided. deer concluded that the Constitution implicitly conferred the right to obtain an abortion, but that she did not base her decision on text, history, or precedent. It relied on an erroneous historical account; he paid great attention and presumably relied on matters which have no bearing on the meaning of the Constitution; it ignores the fundamental difference between the precedents on which it relies and the question before the Court; he concocted an elaborate set of rules, with different restrictions for each trimester of pregnancy, but he did not explain how this real code could be extracted from anything in the Constitution, the history of the laws on the abortion, precedents or any other source cited; and its most important rule (that states cannot protect fetal life before “viability”) has never been raised by any party and has never been plausibly explained. deer‘s reasoning quickly drew scathing criticism, even from proponents of broad access to abortion.

The Casey plurality, while reaffirming Deer’s central outfit, ostensibly refrained from endorsing most of his reasoning. He revised the textual basis of the right to abortion, silently abandoned deer‘s erroneous historical account, and abandoned the framework of the quarter. But he replaced that diet with an arbitrary “overload” test and relied on an exceptional version of watch the decision which, as explained below, this Court had never applied before and has never invoked since.

Justice Alito wrote the majority opinion for himself and Justices Thomas, Gorsuch, Kavanaugh and Barrett. Justice Roberts, in a deeply disappointing judgment-only agreement, would let deer and Casey standing, and only agree that the Mississippi law could be upheld based on a new standard he just invented on the reasonable opportunity for women to obtain an abortion. Justices Kagan, Sotomayor and Breyer dissented.

Today’s opinion means that some states will continue – as they have done in recent months – to protect unborn human life in the womb according to the will of their people. Others, however, will continue to legislate – as they too have done in recent months – to allow the destruction of human life in the womb at every stage of pregnancy for any reason. Many states will take “in-between” positions, prohibiting abortion at certain times and/or for certain reasons. They could also regulate the conditions under which legal abortions could take place – for example, health facilities, waiting periods, parental involvement, etc. There will be a lot of work for local pro-life organizations to do in all State.

It also seems quite likely that the Court’s pronouncements that the Constitution does not deal with abortion at all – particularly with Justice Kavanaugh’s agreement insisting on this point – will reignite a debate that has been going on since 1973 about whether the 14th Amendment to the Constitution opposite from what Roe had concluded: protect unborn life from intentional destruction. After all, this amendment guarantees: that no state “shall deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (emphasis added). Important thinkers are already urging the pro-life movement to move in this direction once more.

Lawyers, activists and the media will spill oceans of ink over this opinion for months and years to come. There are so many wonderful facets that I could immediately spill several gallons myself. But for the sake of length, I’m only highlighting a few key themes below.

First, the Court pointed out that not only respect for abortion, but respect everything since claimed “federal constitutional rights” do not appear in the text of the Constitution itself, the Court will no longer equate them with the personal preferences of five or more unelected judges. Instead, he will consult actual American legal history and tradition, both at the time the claimed constitutional provision was enacted, and from that time to the present, to determine whether the guarantee of ” freedom” of the Constitution includes the claimed right.

Accordingly, the majority opinion scrutinized state abortion laws at the time of the enactment of the 14th Amendment (1868) – the amendment whose “freedom” clause was the claimed source of the right to abortion. He found that a large majority of states in 1868 banned abortion early in pregnancy, and the remaining states did so in the years immediately following. He also cataloged the continued prohibition by states and territories of most or all abortions from that time to the time. Roe vs. Wade was decided in 1973. She therefore forcefully concluded in this part of her opinion that “The inescapable conclusion is that a right to abortion is not deeply rooted in the history and traditions of the Nation. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal penalties persisted from the earliest days of the common law until 1973.

This is no small legal victory, but a wonderful development that respects democracy. Citizens and states have ratified the Constitution and the Bill of Rights. Citizens and states can change the Constitution if they wish. But it’s not up to federal judges to make things up and call it constitutional law.

An interesting aside here. If the Court means what it says here about how “non-textual” constitutional rights are advertised, then Oberfell v. Hodges, the same-sex marriage case, could fall later. This opinion is largely based on a method of reading the Constitution that is now violently repudiated in Dobbs, namely: ignoring the history of the constitutional provision on which the claimed right is based; ignoring the laws of all 50 states from that time to the time of the current case; and instead consult the personal opinions of five judges, the laws of certain foreign countries and the evolution of public opinion not expressed in law. Oberefell also relies heavily on the Casey the patently ridiculous assertion of the opinion that the “liberty” clause of the 14th Amendment protects “the right to define one’s own concept of the existence, meaning, universe, and mystery of human life.”

Repeatedly in its opinion, the Court states that it is not to spill Oberefell, and that is technically correct. But the logic of Dobbssubstantially rejects Oberefell However. Only time will tell if a case arises, providing the Court with an opportunity to reconsider this case.

Second, and equally remarkable for its clarity and meaning, is the Court’s beating of the deer and Casey opinions – not only their holdings, but their absurd and even non-legal “methods”. He calls them “obviously false”. This is the main reason why the Court has decided to deviate from its practice of watch the decision, which implies respecting and applying previous decisions to later cases. Majority Dobbs basically calls deerand Casey garbage – irrational, not legal absurdity.

This is all so obvious as a matter of common sense and legal reasoning that reading it is like reading the best pro-life constitutional legal scholarship of the last 50 years. Every once in a while you must shake your head vigorously and realize that you are reading a Supreme Court majority opinion – the first majority opinion to use constitutional reasoning that respects the document itself, constitutional precedent and democracy, since 1973.

Third, a note on Roberts’ deeply disappointing and legally convoluted opinion. He refuses to engage the majority’s devastating analysis of how the Court (including Roberts himself) promised to interpret the content of the 14th Amendment’s liberty guarantee. It ignores history, tradition and precedents. And he invents a new rule from scratch – exactly as did deer and Casey. It would guarantee women the right to have “real choice”, “adequate opportunity” and “sufficient time” to “decide for themselves”, whether to “exercise the right deer protected. As a result, Roberts would vote to uphold Mississippi’s 15-week ban because it gives women that time and opportunity, but not vote to cancel deer. Thus, he subscribed only to the judgment, but not to the opinion of the majority.

The dissent of Kagan, Breyer and Sotomayor is, predictably, hysterical. She spares no quarter to the interests of any human being before her birth. It completely sidesteps the Majority’s argument about the American people’s democratic choice to protect unborn life from the founding of the country until 1973. It characterizes the Majority as continuing a sexist tradition begun in the 19th century. It predicts future disasters for women’s health, freedom and equality in the future.

June 24, 2022 is a new and wonderful day for life advocates. It is the culmination of relentless effort – relentless scholarship, relentless willingness to endure the slings and arrows of elite opinion, relentless witness to the value of every human life, relentless care for women pregnant and post-abortion mothers and women, and relentless marches, letter-writing campaigns, visits to legislative offices, and fundraising campaigns. It is also a wonderful day for the United States on the world stage. One of the most powerful nations on the planet has stopped declaring the destruction of innocents a “human right” and instead allowed governments to protect helpless human beings. Finally — and allow me this end of jurist — it is a marvelous day for democracy, and for the Constitution which guarantees it.

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