When in trouble, or in doubt, run in circles, scream and shout.
Unknown.
Everyone has heard the news, of course, a leaked draft of a United States Supreme Court opinion would, if it becomes the final opinion, definitively overrule Roe v. Wade.
Which means that the Supreme Court has not overruled Roe v. Wade yet, and it very well may not, and if it does, it frankly likely will not in the form of the draft opinion, even though the draft is a good draft and this is the approach, absent one based on natural law, that they should take, in context.
Well, anyhow, a firestorm of predictable protests has broken out. So let's look at the controversy, such as it is, and the supposed issues and features of it.
A surprise that isn't a surprise.
Let's start with an obvious one.
Every legal analyst in the universe has known that Roe v. Wade was going to be overruled, so this is no surprise whatsoever. The huge surprise would be if it wasn't. This has been suspected for years.
So why the shock and amazement?
. . . a Lander resident, said she wasn’t surprised by the leaked draft, which was publicized Monday. But she was “a little surprised at the audacity of the claims that (Roe v. Wade) has been so wrong all along,” she said.
Casper Star Tribune.
Well, I really don't know, quite frankly, but part of it is simply manufactured. Indeed, for that reason I think the leaker is most likely from the political left, not the right. Since the leak, the press has taken up the theory that surely the leaker is from the right, and this is an effort to keep doubtful judges from straying. Knowing that protests would result with Roe was overruled, no matter what, the opposite is much more likely. The release was likely from the left, as part of a last ditch effort to keep Roe in place.
As part of that, quite frankly legal scholars have found the text of Roe to be wanting right from day one. Hardly noticed now, quite a few on the left questioned it for decades, and even such figures as Justice Ginsberg stated that the text was pretty much crap. The Court nearly overruled it at the time of the Casey decision, and apparently was set to until Justice Kennedy changed his mind out of a fear of what it would do to the court. Kennedy is my least favorite modern justice so that he'd become a limp noodle at this point only cements my opinion of him, quite frankly, but as he's done on to retirement, and the justices appointed after him were not of his mindset, that Roe would be reversed isn't a surprise at all.
Scary democracy.
Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.
From the draft opinion.
So, after the tulmet and shouting, what does that draft, if it becomes the law, really do?
Well, if you listen to folks like Chuck Todd, Cossacks will be arriving at your house next Thursday to rifle through your drawers, steal your children, eat your lunch, and shave your cats.
Not so.
It does one thing, really, and only one. It returns the issue of legislating and regulating on the topic of abortion, to the voters, through their legislators.
That's it.
Basher: All right chaps. Hang on to your knickers. [He triggers the bomb, and the safe door cracks open.] [Laughing, Basher dances into the vault – and the alarm goes off] Basher: Oh leave it out! You tossers! You had one job to do!
Ocean's Eleven
And everybody loves democracy, and therefore the left in particular is excited about that, right?
Obviously not. So much so, that even legally trained Democratic politicians are willing to tell some huge whoppers about it.
The court's decision does one thing and one thing only. It returns this issue to the states, which means it returns it to the voters.
That doesn't deprive anyone of anything, if the concept of deprivation is even operable here. It doesn't tell women what to do about anything whatsoever.
Our nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.
* * *
Our decision returns the issue to those legislative bodies and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting and running for office. Women are not without electoral or political power
Justice Samuel Alito.
Well, that's just a sham, right because men control the vote, right?
Not so at all.
Women are registered to vote in the U.S. at higher rates than men. In recent years, the number of women registered to vote in the U.S. has typically been about 10 million more than the number of men registered to vote.
Rutgers.
And here's the thing, it's been shown that in states that will act to restrict abortion, like Oklahoma for example, the female electorate in those states supports those moves. That is, more women favor restricting abortion than not.
That's the way democratic societies are supposed to work.
Indeed, while there are indeed rights enshrined in the Constitution to protect minorities against majorities, they are few in number, and they should be. They must be limited to essentials to guard against demonstrated abuses, or they inflict abuses, or, and here's the thing, they can also address essential existential rights to protect them.
Well, that's what Roe did, right?
Not so much. Indeed, right at all.
What a conservative court could do, and didn't.
To listed to the press, you'd think that what the Supreme Court determined was that abortions should be illegal, which is completely false. But that's why this decision is not a "conservative" one, it's a libertarian one.
We've noted before that there are no real "conservatives" on the Supreme Court. If there were, a much different result could be reached.
At one time, the Supreme Court openly took the position that there was a natural law, and that the natural law deserved consideration in matters. It didn't always dominate, however, and a really good example of that is a case we've discussed here before, The Antelope. In that pre Civil War case the Supreme Court outright held that slavery was against the natural law, but not against the law of the United States, and therefore the law of the United States won out.
As abortion, however, involves the killing of a human being, no matter how a person may wish to camouflage that, a very different result could be reached.
Indeed, perhaps one thing the long build up to this debate may have served to do is to destroy the bogus arguments about the topic of abortion that had existed at one time. Early on there were plenty of people who claimed to not know when human life began, but hardly anyone takes that position anymore. Current abortion supporters either just don't address this at all, or are outright in their view that a mother has the right to off her child up to a certain point.
In order to take that position, except in the case of the life of the mother, a person is really limited, if they think it through, to a position of atheistic conveyance. That is, there's nothing beyond us and our immediate goals dominate. That argues, we'd note, not only for abortion, but also pretty widespread killing in general. Certainly euthanasia should be allowed, if we believe that, but we probably ought to kill most felons too, as it would be a lot cheaper and convenient if we did that, rather than warehouse them in prisons. And for that matter we probably ought to do in those with serious mental defects.
That very few really are for mass killing tends to demonstrate that few have really thought this through. It's much easier, frankly, just not to. If you do, this is the only place to go. Once we start killing for convenience, the old phrase "well. . he needed killing" begins to have pretty wide application.
Anyhow, a contrary natural law position is that all humans have a right to life that can only be forfitted to protect a person or society from the putative decedent inflicting bodily harm. Ie., generally, there's a right to self-defense, but that's where the line is drawn in an individual killing another person. And there's no reason that a really conservative court couldn't hold that the infant's rights and the mother's are co-equal, and therefore at a bare minimum she could not kill the infant save in the instance of the infant being set to inflict certain grave bodily injury.
And indeed, frankly, in the history of our laws, and in keeping with the concept of being secure in our persons, that's the opinion that would make the most sense.
That isn't the one the court decided. Not even close.
The Supreme Court has never taken away a right
This argument is based solely on the idea that the unborn child has no rights at all, that's the only way you can get the argument to work.
Even then it's a bad argument, although its the stare decisis argument. Essentially it holds that no matter how badly the Supreme Court messes something up, once they totally screw it up, it must be preserved as a screw-up for all time and eternity.
If this was the case, the Dred Scott decision, which held that a slave owner had a right to the return of his slave even if they crossed into a free state, would still be admired as a brilliant legal decision. Indeed, it should be noted, that holding wasn't much different than Roe. One party had a right, and the other didn't.
The Civil War and the post-war amendments took care of that situation, of course, not the Supreme Court itself. But the point is obvious. If some people had a right, for example, to a "separate but equal" education, and then that was changed, yes, you were taking away a right that had previously been extended, but one that needed to be because the prior decision was wrong.
This decision doesn't even go that far, of course. It just tosses things back to the states.
It jeopardizes other "rights"
This is the one argument, and the only one, that actually makes some sense, although only somewhat.
Because the fanciful creation of a fictional right by Roe utilized a discovery of a right that didn't actually exist within the "penumbra" of the Constitution, it created a method to extend such rights where they also didn't really exist in print. That created a frankly dangerous situation in that Roe was easy to cite as a basis for finding those rights existed.
Having said that, the impact here is much more limited than might be claimed. The claim that it's going to lead to a lot of state legislation regarding marriage, for example, is constrained by Loving v. Virginia, which predates Roe. So no matter what may be claimed, it's not the case that states can now outlaw interracial marriage, as some have suggested might now occur. That wouldn't occur anyhow, but the holding in Loving and what it means is in no way impacted.
What it might mean for same-sex marriage, however, is in fact much less clear. The reason for that is that the holding in Obergefell was frankly made up just like the holding in Roe, and everyone pretty much knows that. Indeed, Obergefell may be the last of the post 1970s decisions that really simply invented something out of whole cloth, and the process used to arrive upon it was nearly identical to that of Roe's.
Indeed, the near term history of it was as well. Like Roe, following it gained widespread acceptance while, at the same time, it was clear that it wasn't universally accepted, and it had the impact of simply preserving a debate rather than deciding one. Long term, therefore, it might very well be expected to have the same history. Given that, its frankly the case that it would be better if Obergefell was in fact overruled and this returned to the states right now. That won't occur, however, as it would be too traumatic for the court.
This likely might mean, however, that coming attacks on state's rights to regulate marriage, which has always been the legal norm, might be arrested. I.e., we may not see any polygamy challenges soon, which we could have expected otherwise.
The other thing we keep hearing is that this may mean that the Supreme Court will send the issue of the regulation of contraceptives back to the states. This is also unlikely.
The Court determined this issue before Roe as well, in 1965's Griswold v. Connecticut. The raising of the issue is a stalking horse, but it's not a wholly illogical thing to bring up. Rather than Roe being a foundation for Griswold, it's actually the other way around.
The thing here that's of interest is that contraceptives have become so accepted that their health hazards, known to a much better degree in 2022 than they were in 1965. That's not really on point, but it's interesting in that if the same pharmaceuticals were being released for the first time today, as they were then, I'm not sure the FDA would actually approve them for public safety reasons. At any rate, this decision, if it becomes law, has no impact on the 1965 opinion and no matter what the arguments on this topic are, or may have been, its doubtful this will change in any fashion, even if legally it probably really ought to revisit the topic.
That brings up "abortion pills". It's been claimed that this may mean, and it very well might, that states will outlaw these, or outlaw them coming by mail.
On the last item, that's a curious one, and particularly creepy one, which will simply note.
The thing here is whether or not court's will rule that this is simply an area dominated by the Federal Government through the Commerce Clause. Generally that's the case with pharmaceuticals and state's don't, and probably can't, regulate them at all. That issue is sure to come up, and the direction even the Supreme Court takes on this may very well be surprising to those panicking now. It should be noted, as will be below, that the entire concepts of abortion pills as legitimate pharmaceuticals is more than a little Orwellian and not much different than imagining small arms ammunition to be the same thing, but nonetheless, this is not nearly as predicable as some may imagine.
But what about. . .
Because so much of this is patently obvious, supporters of abortion resort rapidly to stalking horse arguments, the classic one being "well what about instances of rape or incest".
No normal person even wants to discuss rape and incest, so this argument sends a person into silence as a rule, but we'll point out here that at least as to rape, ever single living human being on the planet is undoubtedly a descendant from that event at some point. I know one very gentle soul who knows for a fact that, in his case, he is, his grandmother having been employed as a maid and suffering a rape from her employer. His "grandfather" was not, but rather a man who married her while she was still pregnant.
Here's the thing, a person is no less a person because of a rape. That's a hard truth, but a truth nonetheless. Yes, carrying a child due to rape must be awful, but nonetheless, killing a person because of it doesn't make the event less awful.
Interestingly here, I'd note, rape is one of the original common law felonies and was in fact punishable by death at one time. Seemingly nobody makes the argument that rapist should be executed, but then that argument does not have an equivalency here.
Incest is an even more horrific crime against the individual and nature, but the same arguments pertain.
In both instances, however, it would be noted that the number of abortions due to these events is incredibly small, something like 1% at most. So the argument that widespread bloodshed should be allowed because of the 1% is knowingly disengenguine. It's much like the logic that allowed white communities to wipe out entire black ones in the South due to an allegation of rape. One person, that is, was accused, typically falsely, but the entire black section of town is torched.
That in fact gets to two other arguments, one involving distance and the other involving race.
Another argument that's revived in this debate is the old one about somebody having to travel for miles and miles to another state to procure an abortion. First of all, that assumes abortion is legitimate to start with. But just as an argument, it's a dog that doesn't hunt anymore.
By and large, in states that will outlaw abortion, it's already the case that it's fallen out of favor to such an extent that people already experience this. So that won't change much. The other thing is that an argument that made some sense as an argument in 1973 doesn't anymore.
Indeed, in 1979 the Nitty Gritty Dirt band issued a song about wistful thinking of traveling that included this line:
Voila! An American Dream Well,
we can travel girl, without any means
When it's as easy as closing your eyes
And dream Jamaica is a big neon sign
That song involved a person dreaming of travel, but the "we can travel . . . without any means" became pretty much true in later years and almost was then.
The truth is, in the modern United States, this is already a feature of the landscape of this issue and, while people really hesitate to note it, the American culture of 2022 is so much wealthier than that of 1972 that things like travel are much less an impediment to anything than they were then. Indeed, the concentration of poverty in some urban areas of the United States actually reflects that, as the urban poor have migrated to them, rather than being stuck in urban areas that they were previously in by default.
That bring up the odd "particularly minority women", by which pro abortion people fall back on one of their oldest arguments, which is that abortion is necessary to off African American babies.
This treads on being a racist argument on their part, and it at one time very much was. Early proponents of any type of birth control often based their arguments on controlling the black population.
There's no overt effort to do this now, but the racist nature of the argument nonetheless comes through. It suggests that there's just something different about blacks and for abortion . . .
An interesting aside to this is the degree to which the WASP culture in the US is sort of a post children culture in and of itself. There are a lot of cultural aspects of that which are outside this debate, but regarding children as almost sort of a virus is part of it. Which gets to this
"Healthcare"
There's suddenly all sorts of claims and for that matter press about abortion being "healthcare".
Something that frustrates a natural process isn't healthcare, and that's obvious. The natural process is what is seeking to be prevented. It's the antithesis of healthcare. This is no more healthcare than it would be if you stopped into your doctor, and he just suggested killing you if you had a cold. Yes, it'd stop the cold alright, but sure wouldn't be healthcare. Accelerating death or actually causing it never is.
It'll impact the fall election.
Finally, this is really a different topic, but it comes up again and again. How will this impact the fall election?
The hope of Democrats is that it brings out hordes of enraged Democratic voters who will help them keep slim majorities in the House and Senate.
It won't.
If anything, recent history has shown that no matter what the issue is, Democratic voters tend to stay home and watch reruns of Dawson's Creek or something rather than go vote.
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