Many people have already written about the leaked SCOTUS decision on the Dobbs case and no doubt many more will. Here is my take. The decision is 67 pages with 31 pages of appendices. Alito starts by saying it is a profound moral issue with sharply conflicting views. Right off, that is false. Over 80% of Americans believe that abortion should be legal and safe. Since 1994, 59 countries have expanded access to abortion for their citizens. While just three — Poland, Nicaragua, and El Salvador – all catholic countries – have restricted women’s right to choose.
It’s only the far-right christian nationalists who yearn for patriarchal rule.
Alito claimed that for nearly 200 years decisions about abortion were state based. For thousands of years it was left entirely to women. Most states that had any kind of law on it make it a crime after “quickening” i.e. abortion was still legal before the fetus moved.
Alito really hated the Roe v. Wade decision and claimed it was not anchored in solid jurisprudence. He cited Geduldig a decision that said that pregnancy discrimination was not sex discrimination because it was between pregnant people and non-pregnant others. I recall our constitutional law class laughing at the reasoning and wondering what part of biology class the justices missed. It has been criticized from every direction since and is considered one of the worst decisions of the court. I don’t capitalize court anymore because they deserve no recognition as a legitimate court since they have abandoned all objectivity, rule of law, and non-partisanship.
He claims Roe exhibited “raw judicial power” just as he is about to do. The psychological process of projection – claiming others are doing what you are doing – is common among the delusional. He claims that Casey only prevailed because of stare decisis. But he has a very flawed understanding of stare decisis. It means cases can be overruled and laws changed when circumstances change – not when the judges on the court change – that’s politics. He says boldly that both Roe and Casey must be overruled.
His biggest argument is that the Constitution does not mention abortion and therefore it cannot be protected by the due process clause of the 14th amendment. The fact that the Constitution written by 55 men in 1787 did not mention abortion should surprise no one. The Constitution does not mention a lot of things – like the internet, or daylight savings time, or proxy voting, or televised hearings, or credit cards, or semi-automatic weapons, or the death penalty. Yet all of these are or have been vital societal questions.
What else the Constitution does not mention is corporations. However this court, some of these very same justices, determined that corporations were people and have full constitutional rights. Alito cited favorably to Citizens United that gives corporations constitutional rights – but not women.
Nor does the Constitution mention women. Abigail Adams urged her husband on the way to the constitutional convention to “remember the ladies because men would be tyrants if they could…”. Neither Adams nor any other delegate remembered the ladies, the ladies are still not remembered, and the men are still tyrants.
Science however is mentioned in the Constitution. The Constitution also says that only gold and silver coin can be used to pay debt. It says that escaped slaves must be returned to their “owners” – a provision that was widely ignored. It says that an amendment is incorporated when passed by two-thirds of Congress and three-fourth of the states which the Equal Rights Amendment has been and is now the 28th amendment. It says that no religious test shall ever be required to any office in the U.S. But lately only the most religious justices have been appointed wherein lies the problem. It also says that the U.S. shall provide for the general welfare of its citizens, which this ruling violates in spades.
The other fallacy here is that in Roe abortion was not the fundamental right that was identified. The fundamental right identified was the liberty right of a person to control their own body, to make their own decisions about personal intimate matters, to have a zone of privacy that the state could not invade. The same christian nationalists who scream “my body my right” – to not have a vaccine which could harm and even kill vulnerable others now deny women the right to control their own bodies in an act that harms no one. We have a right to refuse medical treatment, except for women, and these same christian nationalists passed laws in AZ to allow people to try experimental medicine or medicine designed for another purpose because – they have the right to determine what happens to their own body. But that right does not extend to women.
Alito also claims that any right not specifically mentioned in the Constitution must be deeply rooted in history and tradition of the U.S. to be protected. What is deeply rooted in the history and tradition of the U.S. is genocide, slavery, and misogyny. Are those to be protected? That is precisely the history of America that the Christian nationalists are trying to prohibit schools from teaching.
Alito claims that abortion is different than sexual relations, contraception, and marriage because it destroys a life. But that is the belief of only one religion. See a previously published article about the scientific facts. https://azcapitoltimes.com/news/2022/02/01/religion-has-everything-to-do-with-abortion/
Alito claims that Roe abused judicial authority in four ways: 1) stare decisis does not require us to stick with a decision; 2) the reasoning is weak; 3) there were damaging consequences; and 4) Roe enflamed debate and deepened division.
He claims that Roe impinged on everyone’s rights. That is simply a lie. Roe allowed a woman to choose whether to have a procedure or not. Those whose religion or philosophy argued against it were not required to have an abortion so they could exercise their beliefs. Those whose religion or philosophy allowed a procedure could likewise exercise their beliefs. All women were able to exercise their own beliefs in their own way – as the First Amendment says we should. By making it criminal for all, the 80% of Americans who think it is compatible with their beliefs are now forced to adopt the religious belief of another group with whom they do not agree – the opposite of what the First Amendment says we should be able to do.
Alito said he wants to return the decision to elected representatives. But there are some fundamental rights that belong to a person and control over their body is one of them. It is standard law in the U.S. that fundamental rights, especially of the minorities or powerless, are not up popular vote. No legislator owns my body; no legislator gets to tell me what I can do or not do with it. Nor can the popular vote.
The justice cited as facts gestation age and a heartbeat at eight weeks. Doctors will tell you that there is nothing certain about gestation age and scientists will tell you that there is no heart at eight weeks so there can be no heartbeat. (See link above.) But we are living in a post-fact age much like the Middle Ages.
Activists and scholars have criticized Roe for arguing privacy rather than liberty, but Casey said the abortion decision was a liberty protected by the 14th amendment. Alito rejected that argument relying on the Geduldig case. Alito goes on about how much Roe has been criticized; Geduldig has been criticized more yet he relies on that.
Because abortion is not in the constitution, and women are not in the constitution no heightened scrutiny is needed to analyze the case according to Alito. When “rational relation” is used, the state almost always wins.
The liberty argument was made but Alito rejected that as well. According to him, due process only protects two categories of rights: these mentioned in the first eight amendments and fundamental rights not mentioned in the Constitution. Women controlling their own body is not a fundamental right to him. To be one of those fundamental rights, it must be deeply rooted and essential to ordered liberty. To a woman, the right to control when and if she has a child is the most deeply rooted decision in her life and it is essential to her ordered liberty. It has an impact on her health, her educational attainment, her income level, her relationships, her other children, and is a lifelong commitment. But to the four men and one “woman” who endorsed this view, they think having your own personal gun, something the court ruled against for years, has now become fundamental. But a woman having control of her own body – not so much.
According to that reasoning, we would maintain every flaw in the original Constitution including slavery and the disenfranchisement of native Americans, women, and men without property – i.e. most Americans. His regressive posture would maintain all the injustices of the past rather than allow society to evolve to a more fair and equitable society. By that reckoning, societies would never evolve but remain forever stuck in the past – a sure fire method for the fall of a society.
Repeatedly throughout the text of the draft decision you know you have been transported into the Brave New World when he projects onto the Roe drafters the very actions he is doing e.g. “Be careful that liberty does not transform into policy preferences of this court.”
Although Alito criticizes the author of Roe v. Wade for delving into history back to the ancients, he then proceeds to do the same only not quite so far. He relied on Hale and Blackstone from the 13th-17th centuries in Europe when women were chattel. They were owned by their fathers until they were married in arranged marriages, then they were owned by their husbands who could do as they pleased with them including rape them and kill them or imprison them in mental hospitals for the rest of their lives – which they frequently did as they found newer, younger or less cantankerous ones. The women did not own or control their own property, their wages if they made any, their children, or of course their bodies. The produce of the woman – her children – belonged to the father and were valuable as property for work or titles or contract fodder as was the baby born to raped enslaved women. So while Alito parades the history from 700 years ago in Europe that is not legal precedent, he ignores the history of the last 50 years in U.S. that is legal precedent.
He especially liked Hale who was a 17th century judge who supported marital rape and had women executed as witches. But he also liked Blackstone who died in 1780 but who coined the phrase that rape was a charge easy to make and impossible to defend. Blackstone’s work was later highly criticized by Jeremy Bentham in the Enlightenment – but the enlightenment is not where Alito is going. That rape statement has been used against women since the 1700s and echoes down through today, though prohibited as a jury instruction in many states, in the few rape cases that are prosecuted or won.
He could have cited Mary Wollstonecraft, A Vindication of the Rights of Women, also written in 1700s. But women don’t exist to him. Nowhere in the entire 68 pages is there any realistic discussion of women, recognition of women, or acknowledgement that women will die from this ruling. One would not know from this reading that women even exist – except as breeding wombs – and they in fact don’t exist as humans holding constitutional rights under the Alito analysis.
Another set up is Alito’s claim that the Roe argument flies in the face of the standard that this court has chosen to apply. That’s the reason we have stare decisis and precedent – so that decisions don’t change with the personnel of the court but with changed circumstances. If the court had applied different standards, they would get a different result.
Research shows that early abortion prohibition was about catholic immigrants having too many babies and protestant women shirking their maternal duties. But this catholic group of judges simply dismissed these facts as not historical argument. They do precisely what they accuse Roe of doing – cherry picking the “facts” and stories and standards they want to use to get the result they want.
Alito makes it clear that this is a religious ruling because they say that abortion is different from the other privacy cases about contraceptives, mixed race marriage, same sex marriage because abortion kills a human being. At the same time they admit that there is no religious or philosophical agreement on that. Yet they have mandated that we accept one set of rules that only one church – their church – believes. That is a decision based purely on religion (and fear of women) prohibited by the First Amendment.
The supreme court has lost the last shred of authority they had and have devolved into nothing but political hacks. They have abandoned the rule of law, science, and reason, to impose their religious belief on the rest of us. They claim they value bodily autonomy but not for women. In the Skinner case that Alito cites, men were given the right to procreate and have bodily autonomy, not women.
They agree one can think and say what they want but cannot act as one wants. But under this decision, women are forced to act (forbearance is an act) i.e. to bear a child she doesn’t want or can’t have or that will harm her or kill her or will live only a short, tortured life. But the judges have no compassion for either the woman or the fetus but insist women must suffer in childbirth – as the bible says.
Allegedly “ordered liberty” sets boundaries between competing interests. But here the only interest the court credits is that of the zygote not the woman at all. She is not mentioned as having any interest in the integrity of her body or the autonomy to control it. Nor is she credited with caring about the fetus and the harm it will endure by being forced to be born only to die in agony shortly thereafter. Many women want the fetus to live but it can’t and so from love and compassion they choose abortion. That compassion is absent completely from the justices.
They claim that voters should make the decision i.e. by their election of persons to office but at the same time they seek to curtail voting. They also fail to mention that certain fundamental rights cannot be voted on. However they do not view women as having any fundamental rights.
Those arguing for maintaining Roe appealed to interracial marriage, same sex marriage, ability to educate your own children, the right not to be sterilized (men), contraception etc. as corollary rights in intimate decision making. Those were dismissed saying that abortion is different because it ends a life, but they also say that none of these rights are deeply rooted in history. No one trusts them to leave these cases alone as it is clear from their confirmation lies that they have forked tongues. (Susan Collins be damned.) The court has zero credibility.
The abortion argument has never been about the fetus. If the concern was for potential life, we would have free or affordable pre-natal care, childbirth would be free or affordable, baby food and diapers would not be taxed, all children would get vaccines, we would have universal pre-school and universal health care, we would have healthy food in our schools, we would have paid family leave for a year, we would have affordable day care – like most rich countries.
But we have none of that. If that collection of cells becomes actual life, the legislatures and courts care nothing about it. It’s on its own. Abortion has always been about controlling women.
Seventy-five percent of all pregnancies result in miscarriage naturally. A woman in El Salvador spent seven years in prison for having a miscarriage. How is a woman to prove that a miscarriage was not an abortion? The mandatory birth crowd praises the “safe haven” laws and claims that a home will surely be found for adoption. So women should bear children to give them to someone else – sounds suspiciously like Gilead.
The court says they don’t have the power to weigh these arguments but return that power to the people and their elected representatives. If nothing else has convinced you, this should – elections matter. Your vote matters. Why would they be trying so hard to suppress it if it didn’t?
The judge next considered stare decisis. He claimed he was concerned not that a constitutional question just be settled but that it be settled right – i.e. making clear women do not exist in the constitutional law space and have no claim to autonomy over their own bodies. Women were not in the Constitution until 1920 with the 19th amendment right to vote. The 28th amendment (Equal Rights Amendment) is now in the Constitution as well however the justices do not acknowledge that. The ERA is what we need to ensure that women not only can vote but have all Constitutional rights and their cases analyzed with strict scrutiny.
Because they don’t want to look like the racists and misogynists they are, they claim support from Brown v. Bd of Education that overturned Plessey v. Ferguson, and West Coast Hotel in 1937 that overturned Adkins v. Children’s Hospital (1923) that a law setting minimum wages for women violated the liberty of the 5th amendment due process, and West Virginia Bd of Ed v Barnette overruled Minorsville School District that a child had to salute the flag in violation of their sincere beliefs. They list other cases that overturned previous ones including Obergefell and Lawrence v. TXoverruling Bowers and Miranda. But the fatal flaw is that each of those cases expanded the rights of citizens; this decision retracts rights women have held for 50 years.
Alito claims five factors weigh strongly to overrule Roe and Casey: 1) Nature of the error; 2) Quality of the reasoning; 3) Workability of the rules; 4) Disruptive effect on other areas of the law; 5) Absence of concrete reliance.
The nature of court’s error is the most astounding of the sections. It claims that an erroneous interpretation of the constitution is always bad but some more dangerous than others like Plessy v. Ferguson because it violated our commitment to equality under the law. This case violates the right of women to equality under the law in receiving health care, in bodily autonomy, and in decision making. This case is more akin to the Dred Scott case, the most reviled case from the court, in which the court said that black people had no rights that whites needed to attend to. Likewise, this decision says women have no rights that society needs to attend to. A corpse has more control over their dead body than do women. They at least can prevent the use of their organs if they have not agreed – women cannot, under this decision, prevent the use of her uterus no matter whether she agrees or not. Cases have decided that a person does not have to donate blood or a body part to another person even if that other person will die. The cases relied on the fact that our body belongs to us, and we have the right to control it. Not so women. They are forced to allow their uterus and their body to be used without their permission for nine months at great cost to them.
Alito says Roe was egregiously wrong and deeply damaging but he doesn’t say damaging to whom. Women are 51% of the population and Roe was not damaging to them, it was freeing. Alito frames those who claim to protect fetal rights as the moral side – but they can protect fetal life under the existing framework. If you don’t want to have an abortion, don’t have one. But regardless of your belief, you have no right to impose it on others. That is the injustice here. Even worse, women are the majority by 51% and pro-choice advocates are the majority by 80%. This is a decision by the minority taking away the rights of the majority. This is not democracy by any stretch of imagination.
Alito claims the quality of the reasoning in Roe was weak. Nothing could be as weak as the delusional argument Alito crafts here. He claims Roe didn’t ground itself in text, history, or precedent. In fact, Alito just used different history or interpretations of history and claimed that the precedents didn’t say what the Roe justices thought they did. Again, this is a change in personnel not in circumstances. We have precedent and stare decisis to prevent these wild philosophical swings based on personnel changes and personal opinion. Alito claims the rules were arbitrary but in fact they were based on the science of the time. The rules were changed in Casey to “undue burden” because the science had changed. But this court does not care about science only theology.
Alito ridicules Roe because the reasoning was criticized – every ruling is including the ridiculous Geduldig ruling Alito relies on. Alito summarizes the trimester structure saying it was a brainchild of the court. This decision too is a brainchild of the church. He whines that Roe is too much like legislation. He admitted that Roe had a lengthy survey of history but to Alito it was irrelevant. Rather Alito cites history from the 13th to 18th century when women were chattel. He cries that Roe did not pay attention to what was happening in the U.S. and then went on to completely ignore 50 years of precedent in the U.S in favor of the rationale of judges who burned women as witches.
He wailed at Roe for listening to the American Medical Association and the American Public Health Association and the American Bar Association. But aren’t courts supposed to listen to experts, and to science, and to reason? Aren’t they voices of America too? This shows the anti-academic bent of this court who relies only on the church for their information.
On the right of personal privacy, Alito claimed the court confused two very different things – the right to shield information from disclosure and the right to make important personal decisions without governmental interference. He claims that only the second right applies. He is wrong. AZ has laws requiring women to have invasive procedures, go to unnecessary appointments, listen to incorrect information in unwanted lectures, and then medical personal must report health data to the state. That private information is none of the state’s business. They don’t ask men about their sexual history when they ask for a condom or a vasectomy. Men can impregnate a 100-women a year or more and women can have only one baby a year. So why don’t we regulate men? Whatever the problem is, go to the source. Or is that too sensible?
Then Alito turns to cases regarding marriage and other intimate issues – Loving, Skinner (sterilization), Griswold, and Eisenstadt – and say that none are related to abortion because of potential life. The catholic church is already after contraceptives with their rhythm method (of failure) and claiming that some contraceptives are abortifacients as argued in the Hobby Lobby case. So they will be coming after that next. While they cite the cases upholding the right to educate your own child, they claim women have no right whether to have that child or not.
Alito outlines four basis for overturning Roe: 1) Relative weights of the respective interests; 2) Lessons and examples of medical and legal history; 3) Lenity (Leniency) of the common law; 4) Demands of the profound problems of present day. He then just disregards the second and third reasons and claims that his version of history from the 13th century is better. A clearer example of political posturing could not be seen.
Then he claims that 1 and 4 are what only legislatures do. He is wrong again. Courts are precisely to weigh and balance when there are conflicting rights – that is their job. Dealing with the profound problems of the day is also their job – is it legal to execute someone, is it legal to allow assisted suicide, should teenagers be tried as adults when their brains have not yet matured? Legislatures can pass statutes, but courts must make the final decision on whether the statute violates the constitution – and they do. They must weigh the respective interests and constitutional claims. His reasoning is a pack of delusional lies from the beginning to the end.
In blatant chicanery, he claims not to understand the justification for the Roe trimester division. Factual medical data was introduced in the case. However, Alito decided he would second guess a court from 50 years ago about what information they should have had or used. That kind of arm-chair quarterbacking is not consistent with the rule of law. Anyone can look back and see what they should have done in a trial, a negotiation, an argument etc. It is not legal reasoning to say because I don’t agree with you today, we are throwing you out.
Roe did explain why they chose the compelling points, but these justices don’t like it. They claim they don’t understand what is different about when a fetus could live outside a womb and when it couldn’t. By that statement, they completely negate the existence of women and reduce them to wombs. It would be clear to any sentient person that when a fetus cannot live outside the womb, another person’s life is involved – the woman. She too has rights as a living, breathing human and citizen of this country. But to these justices, her rights do not enter into the calculus. There is no balancing of rights – only the rights of the fetus matter. The woman is just the carrier.
Alito admits there are differences among philosophers and ethicists not to mention religions about when personhood exists. But by their ruling, they would force everyone to abide by their religious and philosophical choices rather than allow us to make our own.
They admit that medical advances have changed the level of information. Yet they criticized Roe and Casey for taking medical information into account. If you don’t base your decisions on facts, then you are basing it on beliefs – your own beliefs. He asks with faked alarm how can it be that the date of viability has changed over the years and therefore the date that the state has an interest has changed? Viability is not an exact science. Science changes. Technology changes. Amniocentesis did not became widely used until 1983. Not until the end of the 20th century was ultrasound used routinely in pregnancy. DNA was catalogued in 2016. Every woman, or child, is different so yes, the dates of viability differ. These justices seem completely ignorant or unwilling to admit that things change, and society and law has to change along with them or be relegated to the dustbin which is where the supreme court is now.
Alito does note that viability is very difficult to determine, and numerous factors go into it. They cite the vagaries and the difficulty of making decisions based on these vague criteria. That is precisely why the decision should be made by the woman with the advice of her doctor not judges or state legislators, most of whom have never been pregnant.
Alito recognizes that a fetus in a big city with a rich pregnant woman would have a better chance than a fetus in a remote area of a poor country. Usually they refuse to consider the law or circumstances in poor countries but in fact we have places in the U.S. with higher maternal mortality than dozens of poor countries; but they don’t care about that. Don’t look at the moot in someone else’s eye; look at the beam in your own. Since they are catholics they should recognize that saying.
They complained that the Roe court were imposing their values on society. In the classic reversal, that is precisely what this decision does. Alito claimed that the greatest weakness in Casey was the discussion of viability because it was vague. The law (that Alito so liked) used to be based on “quickening” – how is that more definitive or scientific than viability?
Roe made the balance of competing interests that when viable i.e. the fetus could survive outside the womb, its rights then overbalanced that of the woman. But this court would make the right of the potential life superior to the woman’s rights from point of conception. Women have no rights – they are just carriers of potential life.
Alito focused on workability as one of the criteria in the Casey undue burden test. The problem here is he cites the people in dissent in these cases (Scalia, Gorsuch) and acts as if their word was law – but the dissent is not law. The losing party in a decision does not get to determine the rules. They also credit the dissent with being right and building their argument off them though of course the reason they were the dissent is because they lost the argument. Sometimes the dissent does become the majority but that is when there is a change in circumstance i.e. the country has moved away from slavery or segregation or the sterilization of so-called mental defectives. That has not happened here. Acceptance of women’s right to reproductive justice has only increased in the last 50 years. These justices lost the culture wars and just won’t accept that.
“Substantial obstacle” according to Alito presents a problem because of the wide variety and ambiguous of the words. The court works with words to determine the meaning and interpretation all the time. That is their job. This is no more difficult than anything else they do. Have you looked at the tax code lately or the bankruptcy code or god forbid the ACA?
Alito states that Casey was to ensure women are informed though not to place an undue burden on the right. He claims that imposes a different standard. But he just said there was no standard. Defining an “undue burden” is what courts do for a living.
Casey also says not to create unnecessary health regulations that present a substantial obstacle or impose an undue burden. Now Alito howls that he has three vague terms! Tell me what is the “best interest of the child,” which family courts have dealt with for decades or “beyond a reasonable doubt” or “more probable than not.” These are all common “standards” used in thousands of courts across the land daily. None of those judges are crying. The terms “large” and “relevant cases” in Casey also causes Alito heartburn – though judges make these kinds of decisions daily. Maybe these judges need to step down and take a break.
Another astonishing statement among many is that this issue is not about women’s health. Literally hundreds of examples have been given of women who faced serious medical issues from ectopic pregnancy to fatal genetic anomalies. None of it matters to Alito. Yet health regulations are what the opposition have been attacking the last 50 years. Suddenly it’s not about women’s health.
Alito agrees that the effect on women is hard to determine because there are so many different women and different conditions. That is precisely why the decision must be left to the woman with the advice of her medical professional. Instead, they take the decision away from both into their own hands – judges who know nothing about medicine and nothing about women and nothing about that particular woman in need.
Alito bemoans that courts have modified and adjusted the language and meanings of the decisions – that is how jurisprudence works. A decision is made, another is built off it with some modifications and language changes, and then a third comes off that to change a little more and that is how law evolves. They seem to be stuck in some Ground Hog Day scenario where they want nothing to change from one day to the next. Except they want to change Roe for personal reasons.
Alito complains that there are circuit conflicts – that often happens. That is how cases work their way up to the supreme court. The author questions all the established procedures that have worked to resolve problems for a couple hundred years. He wants to toss not just this decision, but the structure that has developed in federal courts and jurisprudence over 200 plus years into the garbage to impose his own religious belief.
Alito is concerned about the impact on other areas of the law. So am I but for entirely different reasons. He claims it distorted other legal doctrines like strict standing requirements for facial challenges, Ignored third-party standing doctrine, disregarded res judicata principles, flouted rules on severability of unconstitutional provisions, abused the rule to avoid unconstitutional findings, and distorted the first amendment. None of this is explained – it is more like losers crying in their beer.
The distortion of the First Amendment is in fact on the other side. Under AZ laws, doctors are told what they must say and not say to their patients, they are told to lie to their patients, and patients are encouraged to lie to the doctors to avoid certain regulations. That is the distortion of the First Amendment – not granting women bodily liberty.
Alito claims there are no reliance interests because abortion is unplanned so women didn’t rely on anything. Again any woman on earth can tell him that is a lie. Women rely on the fact they can get an abortion. But Alito says reliance applies only to things like property and contract rights, not your intimate decisions.
The most incredibly obtuse of all statements is that it’s hard for anyone to determine the effect of abortion on the lives of women. Correct! That is precisely why it must be left up to her. Yet Alito goes on as if he never even heard himself.
He claims that a court cannot adjudicate the status of a fetus – but he just did by putting the fetus rights above the womans. He claims that the decision returns the issue to legislative bodies where women on both sides can lobby, vote, and run for office. If you ever wondered why voting was important, wonder no more.
In a segment ripped from Brave New World, he admits that the public will lose respect in the rule of law if courts decide cases on social and political pressures. He is right about that. The public has lost all respect for the not supreme court that has shown itself as a bunch of political operatives. Alito claims the country will think the court caved to political pressure if they uphold Roe. Wrong. By striking Roe, the country will know that they are ideologues put there to do a job ensuring that women remain second-class citizens. The former (grab them by the pussy) president who put them on the court made clear his disdain for women. Kavanagh spitting and sputtering like the drunken frat boy he was made clear his disdain for women. Alito makes clear that women don’t even exist in his world.
Alito says it’s important that the public perceive that decisions are made on principle. He relies on principle – religious principle – that should never influence their decision and that’s in the Constitution. “But we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.” But they decided the scope was the 13th century when women were chattel. Women are 51% of the population and not extraneous. The 80% of the population that agrees abortion should be legal is not extraneous.
Alito undercuts his own argument when he says that the judicial branch gets legitimacy by deciding whether legislative enactments comport with the Constitution but says in this case, it’s not my job and we’ll give it back to states. A judge’s sole job is to exercise judgment – what law means and how it should apply to the case at hand. That is completely contrary to his earlier statements that it’s not my job. Alito claims to not know how our political system or society will respond to overruling Roe. If that is true, then he and the others are so divorced from the lives of Americans they might as well be ruling from Mars and should be removed from their jobs.
Finally he turned to the Mississippi case itself. Using rational basis review they found that abortion is not a fundamental right. Women have no rights to control their own bodies under the Constitution only to vote.
States can regulate and under the rational basis standard pretty much anything goes. They refer to it as a health and welfare law and so whatever the state says has a strong presumption of validity. They do not designate the health of whom. Certainly not the health of the woman or girl, that is not considered at all.
The AZ bill SB1164 passed and signed has no exceptions for rape or incest. The only exception is: “MEDICAL EMERGENCY” MEANS A CONDITION THAT, ON THE BASIS OF THE PHYSICIAN’S GOOD FAITH CLINICAL JUDGMENT, SO COMPLICATES THE MEDICAL CONDITION OF A PREGNANT WOMAN AS TO NECESSITATE THE IMMEDIATE ABORTION OF HER PREGNANCY TO AVERT HER DEATH OR FOR WHICH A DELAY WILL CREATE SERIOUS RISK OF SUBSTANTIAL AND IRREVERSIBLE IMPAIRMENT OF A MAJOR BODILY FUNCTION. Good heavens doesn’t that have a lot of vague words in it that a court would need to interpret. That should send Alito hyper-ventilating into a paper bag.
The only interest of the court is in prenatal life at all stages of development – not the already living woman at any stage. Thus they justify Mississippi’s Gestational Age Act although they whined about how hard it was to ascertain such ambiguous terms as viability and gestational age. The only exceptions are medical emergency or severe fetal anomaly if the fetus is more than 15 weeks. Alito ends the decision saying the issue is a profound moral question and as the omnipotent ones, they have now answered it for all of us for all time based on their religious principles. This constitutes a violation of the very Constitution they are bound to uphold.
The constitution starts with, “We the People” and we the people dissent. The Declaration of Independence says that governments derive their just powers from the consent of the governed. We do not consent. When a government becomes destructive, the people have a right to alter or abolish it. That we choose to do. In fact it is our duty to throw off such government. The only authority the supreme court has is its moral authority – which they have forfeited. We shall not obey.