The issue of legal abortion is a thorny one, and one reason is that the issue has become so politicized. Conservatives hate it, and liberals love it, pure and simple. But just as simple is the fact that both justice and the Supreme Court are supposed to be apolitical. They’re only interested in the law.

And that’s how I want to look at this issue for this article. I am putting my personal and political feelings on this issue aside, and I’m throwing out the possible political motivations of the justices of both courts. I want to look at this issue in terms of interpreting the law. Because that’s what it’s all supposed to be about. And I invite you to put your personal feelings on the issue aside for a few minutes and join me. Let’s have a chat. If this isn’t your bag, thanks for stopping by, and I’ll catch ya tomorrow, hopefully with something more interesting for you.

In a landmark decision in 1972, the Supreme Court ruled in a 7-2 decision that the fight to an abortion was a constitutional right. They set a 26 week limit for a legal abortion, and enjoined individual states from banning abortion.

This decision was a pure interpretation of the law and the constitution, which is what the Supreme Court is specifically set up to do. Correct me if I’m wrong, but I don’t ever recall seeing the subject of abortion is never mentioned in the constitution. The justices listened to oral arguments, their law clerks did the research, they debated, and came to a decision. And remember that there were multiple conservative justices appointed by GOP Presidents who voted in the majority.

Liberals celebrated the decision as a confirmation of individual rights and free choice under the law. Conservatives railed the court had overreached. The constitution sets strict limits on what the federal government does and doesn’t have control over. And moral and medical issues weren’t two of them. Constitutionally those should have fallen under states rights. Fast forward to 2022. A different court, with a different ideological spectrum relitigated the issue in the Dobbs case. And in this case, the court determined that the previous court had ruled erroneously in favor of abortion rights on a federal level. They determined that there was no constitutional reason for the federal courts to intervene, and that the issue should have booted back to the states for self determination.

Let’s make this crystal clear, because it’s important. Nowhere in the Dobbs decision does the Supreme Court criminalize, restrict, or ban abortion! It simply states that the previous court had no right to adjudicate abortion rights, and sent the issue back to the states for self determination.

And now we get to the meat and potatoes of this thesis. We are now slightly over more than a year since the Dobbs ruling, and there has been a great deal of motion on both sides. On one side, several red states such as North Carolina, South Carolina, Florida, Mississippi, Alabama, Texas, Utah and Arkansas have all enacted restrictive new abortion laws. Which was the whole basis of the Dobbs decision, leave it up to the states to decide.

But here’s the McGuffin. In several of these states, including Texas, Utah, Georgia and I believe North Carolina, those new laws are now tied up in state courts fighting out the issue as to whether or not the new laws are constitutional in those states. And that’s also exactly what the Dobbs ruling meant to do. Leave it up to the states to decide.

And if I’m Chief Justice John Roberts, here’s where I’m taking a victory lap. In the year since the Dobbs decision, seven states, six of them red, have all put citizen driven constitutional initiatives on the ballot in state elections to enshrine abortion rights into the state constitution. And you know what? Every goddamn time out, those bad boys won! The court sent the issue back to the states to decide, and this time it was the citizens, and not the legislature that had the final word on bodily autonomy. The system still works. And this November, Florida and Ohio have ballot initiatives to enshrine abortion rights in the state constitution. And ya know what? I bet the day after election day, the pro choice side will now be 9-9.

Look, I’m no moron, or you wouldn’t be reading this. Nobody makes critical decisions on a totally impersonal basis. Every decision we make, whether what car to buy, where to live, or which politician to vote for is tainted by our own personal prejudices, likes, dislikes and opinions. And if we can’t do it, why should we expect our judges to leave their own personal beliefs at the door. As a political philosopher once said, Even fascism would be an acceptable form of government if it was run by angels.

But our system of government is a little more realistic and flexible than that. Our Founding Fathers took into account that our system of democracy was being created by imperfect men, and would be run by imperfect men. And that’s fine. After all, whom among us has never f*cked up a decision. But the concept of democracy requires that the citizens believe that their chosen representatives are governing for them in good faith. And as Chief Justise Roberts might point out, if the citizens don’t like the way their representatives are representatives are dealing with the abortion issue, there’s a remedy available that doesn’t involve the Supreme Court. It’s called the ballot box. A solution seven states have already made good use of.

And I will close with this, my first and last act of personal privilege. In the Dobbs decision, I don’t believe that the conservative members of the court were honest brokers. I believe that they used the Dobbs decision to settle personal scores for themselves and their backers. At the same time, that doesn’t necessarily mean that the decision was wrong, only that the logic was wrong. But in that single decision, they unwittingly woke the sleeping giant. They blaringly reminded every American citizen that it is the voters who ultimately determine our destiny, and not the slobs we elected. And as shocked as the conservative members of the court are at the outcome of their handiwork, it should also serve as a flashing red light to the slobs in GOP controlled legislatures. We’re pissed. We have long memories. We have the power. And we vote. Here endeth the lesson.

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  1. Interesting take, but I must respectfully disagree as to the basis of the Roe decision. Abortion is as you correctly note an issue that evokes strong opinions and courts getting into personal morality isn’t what they are meant to do. At the same time, decisions about family planning and unexpected pregnancies are as personal as it gets and at what point does one citizen have a right to impose their morality on someone else? Roe was a decision rooted in people’s privacy, their ability to make profound personal choices and it’s no more a state legislature’s business what the best thing is in any given person’s/couple’s situation than it is the courts.

    Scientifically and medically a fetus cannot live outside the womb up until a certain point of gestation, and even at the point of “viability” and with far more advance medical intervention now than there was in 1972 it’s no sure thing in the test laid out in Roe. The Constitution doesn’t use the specific word Privacy but there are multiple places where it makes clear people do in fact have zones of privacy from government intrusion. And that the govt. must meet some standards to invade individual’s privacy.

    Anti-abortion people say at the moment of conception the fertilized egg is a human life. Ergo it deserves full protection of the law as if it were a living, breathing human being. Others disagree. But the science doesn’t support that. Only at a certain point does a fetus become able to survive outside the womb. Until then it’s a collection of tissue that’s a potential baby.

    What Roe did is say prior to viability of a fetus it’s a private matter, and that yes the Constitution not only provides for individual privacy but is weighted towards granting it. That people are free to make their own choice. If people believe abortion is immoral then they aren’t forced to have one. For those who don’t see it that way, they are free (or were) to choose to terminate a pregnancy, and their PRIVATE, individual choice could be for any number of reasons.

    There’s been an awful lot of hypocrisy on abortion since the latter 1970s, the bulk of which has been from conservatives. And since we’re the same age think back. Yes, there was some outcry when Roe was handed down but it didn’t actually become a huge conservative cause until the latter 1970s. Some conservative influencers were looking for an issue to highlight and they chose abortion. Had that not happened a great deal about our politics and country would be very different. And mostly better.

    Finally, you’re correct to note how as the issue has gone to voters including in red states the anti-abortion folks have gotten their butts kicked. CHOICE has ruled the day. It will probably continue to do so. But don’t kid yourselves. Those on SCOTUS who stripped away a right that had been reinforced by subsequent SCOTUS rulings never imagined things would work out that way. They smugly believed that they had destroyed access to abortion in lots of states and that the movement would spread. That was their INTENT with the decision. To put the issue in the hands of a handful or red state legislators who would go nuclear on abortion and other reproductive rights. They’ve since learned they were dead wrong, that people, and not just women didn’t like having such a basic right as to make their own decisions about abortion taken away from them.

    It’s a PRIVATE matter, and the Constitution does in fact provide for individual’s privacy even if it doesn’t explicitly use that word. That was the basis for Roe.

  2. As it was my oldest daughter’s birthday yesterday, I will relate just how complex this issue can be. She just turned 31, and had my first grandchild 4 months ago. My ex and I started trying to have kids in 1989. After multiple medical procedures, thousands of dollars and many depressing nights after watching our friends have children, I learned through a biopsy, I would need a medical procedure to use my sperm invitro. My ex, it turned out, had a rare blood disorder, discovered at Duke, that affected her fertility. We did the donor program at UNC for 3 years, going monthly to have her inseminated, since we couldn’t afford the exorbitant cost of invitro. Every month was a rollercoaster of hope and then disappointment. She had monthly transfusions and every procedure known to try and figure out why she wouldn’t get pregnant. Finally, after every MD told us to give up, we went against medical advice, and I gave her shots in the rear using pergonal. It was usually for women who didnt ovulate, a problem she didnt have. It worked. She tested positive for pregnancy in December 1991. We were thrilled. A few weeks later, I was startled from sleep by her screaming, laying on the floor in a fetal position. I called 911, and we rode across town by ambulance to Durham regional. She was screaming the entire ride. When we reached the ED, they rushed her back to a waiting resident and nurses. They tried to stop me from going back, but I charged into the examine room to find the MD prepping a shot. I had to shout since my ex’s screams were rattling the windows. No one knew what was wrong. Later they discovered she had 11 eggs in one ovary and it had twisted on its stalk. I shouted for him to stop until he knew she was just a few weeks pregnant after 3 1/2 years of trying. I asked what was in the needle, and he shouted morphine, and to get security. I asked if the pregnancy would survive a massive dose of morphine and he said no. I told him he couldn’t give her the shot. We shouted back and forth and I threatened everything from his medical career to his well being to use a drug that wouldn’t cause an abortion. He eventually agreed to use Dilaudid. Her pain eventually eased and the screaming abated. When I came out, every security guard was there, and I assumed I was going to be arrested. I wasn’t. She recovered, and my daughter was born 9 months later. Luckily I had a career working with doctors, and had no illusions about their clay feet, which helped me that night. So, I am a man who believes strongly in a woman’s right to choose, but almost went to jail to stop an abortion. Simple right? Sure.

  3. roe was decided on privacy. this applies in many medical cases. yours and mine. I don’t want the government to tell me what choices I can make about my medical care. Dobbs was a massive failure of judgement. democracy doesn’t define my rights. alito better check what he wants people to know about his medical conditions because he doesn’t have rights anymore.

  4. “And as Chief Justise Roberts might point out, if the citizens don’t like the way their representatives are representatives are dealing with the abortion issue, there’s a remedy available that doesn’t involve the Supreme Court. It’s called the ballot box. A solution seven states have already made good use of.”

    Unfortunately, many states DON’T allow for that “solution.” Alabama, for instance. No one in the state legislature offered to propose a Constitutional amendment (to our already overburdened Constitution) to ban or allow abortion. Nope. Our “glorious” deep-red, GOP-supermajority Legislature decided to pass a law all on their own without once considering whether the “good people” of the State should have a say. It’s kind of funny, that. About 20 years ago, the Legislature decided to put forward a Constitutional amendment about the subject of same-sex marriage and they let the people decide. About 25 years ago, the Legislature decided to put forward an amendment designed for the SOLE purpose of repealing the Constitutional ban on interracial marriage (something which the Supreme Court had overturned nationally back in 1967–the scary thing is the amendment passed with only a 60% majority, even though the state’s official ban on interracial marriage was completely meaningless and had been for more than 30 years).
    But, when it comes to other matters, the Legislature has simply made the law and forced it on us mere peasants. For instance, back in the 1980s, the Legislature passed a law requiring seat belt use and tying the possession of a driver’s license to having auto insurance (only liability insurance–anything else was up to the insured). Were the people offered a chance to vote on these intrusions into our “personal” spaces? Of course not. The Legislature passed the laws and they were imposed on us with no recourse (for people who did have cars without seat belts, they were “grandfathered” into the law). And when the Legislature decided to impose new abortion restrictions, they simply passed the law and imposed it on us.
    Of course, if a county decides it needs to raise taxes to fund a new county landfill or a county wants to start selling liquor, then the entire state MUST vote on that via Constitutional amendment (in practice, most state voters tend to ignore any and all such local amendments so you’ll see an amendment that gets 2 million votes because it applies to the whole state while 5 or 10 amendments get no more than 50,000 or 100,000 votes because they only apply to a single county).

  5. One of the main reasons to keep it out of the hands of the states is because of what we are seeing right now–the patchwork of laws governing a woman’s right to reproductive healthcare. This will also be the case regarding gay marriage, birth control, and other hot-button issues. Logic dictates that these things NOT be in the hands of the states. Of course, logic in this country is in very, very short supply. This is why we need people capable of rational thought on the s.c. Unfortunately, with people like thomas, alito, beer bong and the vagina, we do not have enough of rational justices on the s.c.

  6. Liberals do NOT love abortion. We value the bodily integrity of the female human carrying a fetus. We would be thrilled if no unwanted child is ever conceived,because every born child should be loved. For this reason we strongly support factual.sexeducation and free or low cost birth contol.and Plan B.
    We are, however, realistic. Every birth control method has a failure rate, including the Pill. We also realize that there are nonviable fetuses which will die within a few hours. These fatal.defects (heart and intestines outside the body; brain exposed because the skull.doesn’t close) We don’t believe the mother should be forced to.carry that fetus for 3-4 more months. And then there are cases where the mother’s own life is endangered by the pregnancy. And rape victims.
    Essentially liberals value the mother,who is already a person, over the potential person of the fetus. We also believe that a woman has a,right to.decide what happens to her body (the very basis for laws criminalizing rape),and thus forcing her to carry a pregnancy to term is cruel and unusual punishment and indentured servitude.
    So please do not claim liberals love abortion. We would be thrilled if there were never any need for abortion. That no woman will be raped. That no woman will.suffer birth contol.failure. That no woman will get drunk and taken advantage of by a Matt Gaetz,type. That no woman will have the amniotic sack break and face the very real.possibility of sepsis.
    But this is not a perfect world.


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