Rescuing the Right to Life: The Aftermath of Abortion Rights in America
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. ‘The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.’”
~Justice Samuel Alito, citing the late Justice Antonin Scalia, in writing the majority opinion of Dobbs v. Jackson.
Preserving the Right to Life: The Supreme Court’s Monumental Ruling on Abortion
On Friday June 24th, the U.S. Supreme Court handed down what would be its most remarkable landmark decision of the 2021-2022 term and one of the most controversial cases of the Roberts Court. The case of Dobbs v. Jackson Women’s Health Organization went down as a major policy decision among decisions, prominently repealing both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) by denying abortion as a Constitutionally protected right. For supplementary reading about the Dobbs abortion decision, I highly recommend one reading the review of this case by SCOTUSblog.
The highly awaited decision grew from a case involving a state-wide ban on abortion in Mississippi, prohibiting operations after the first 15 weeks of pregnancy. In March 2018, following the passage of the law, Mississippi’s only abortion clinic had sued Thomas E. Dobbs, a state health officer for the Mississippi State Department of Health. The state law was prevented from being enforced by lower courts imposing burdensome injunctions on the basis of Casey’s ruling to prevent states from banning abortion prior to fetal viability (usually the first 24 weeks of pregnancy). This was done on the false understanding that abortion was a protected right to female privacy construed under the Fourteenth Amendment of the Constitution. The Dobbs case was shrouded in national controversy in the months leading up to an official opinion being rendered, due to an unprecedented leak of Justice Samuel Alito’s draft opinion, published by Politico in May.
The unspecified leak by an anonymous judicial branch officer sent shockwaves throughout the national media and sparked public outcry. Such a profound exposé of a written draft opinion by a Supreme Court Justice, material that is regarded as confidential until a final decision by the Court is rendered, was spontaneously published as a Politico piece. The draft opinion was released approximately seven weeks prior to the official decision by the Court on Friday June 24th, with the article acknowledging that the Court’s final decision would likely be rendered within two months of the leak. Such a breach of confidentiality in the legal process of Justices examining a pending case during conference has never occurred in the history of the Supreme Court. The Supreme Court was conceived by the Founding Fathers to be a branch of government that should be insulated from the whims of partisan politics. It was intended to operate with a veil of confidentiality when Justices render decisions that should be unrestrained by outside political influences on the right and left. The unexpected, leaked opinion completely overrode this traditional perception of the Court’s operations, removing its veil of confidentiality and pointed to the larger issue of their being a usurper of established legal procedure within the nation’s highest court. It also placed a target on the backs of the six conservative Justices who were likely to overturn Roe based on the language of the draft opinion.
Who was the leaker of a draft of the Dobbs Abortion decision?
According to various legal analysts, politicians, and reporters who actively examine the Court, the leaker was most likely either a close staffer to one of the Democrat-appointed Justices or one of their twelve clerks. The leak was likely a retaliatory trap used to ensnare the conservative Justices as they made the stance to declare abortion unconstitutional. Despite these predictions, there has yet to be any concrete evidence pointing to the identity of the leaker. Among these, Senator Ted Cruz boldly predicted that “it is likely to be someone who is a hard partisan and who was willing to burn the place down because he or she was so upset about what happened,” Cruz told host Michael Knowles in an interview. “If I were to guess the most likely justice for whom the law clerk is clerking is Sonia Sotomayor … because she is the most partisan of the justices and so she’s the most likely the higher wild-eyed partisan as clerks. I have no evidence of that, I’m just making an inference.”
Such an egregious action and heinous disregard for the sanctity of the Supreme Court’s opinion-making will from hence forth be branded in American history. An official investigation into this scandal was launched by Chief Justice John Roberts and is currently being led by the Marshall of the Court. As new findings become made and inquiry into the leaked draft continues, if the traitor is discovered, he or she will most likely be fired from their position and disbarred from ever working in the law. The public stigma against such a person for committing this infamous betrayal to the American judiciary will be extremely high as well.
In comparing the results of the final decision on the merits by the Court in June to the initial draft opinion, much has remained the same. The five Republican-appointed Justices, Thomas, Gorsuch, Kavanaugh, Barrett, and even Roberts maintained support for Justice Alito’s opinion, fostering a 6-3 decision along ideological lines. Chief Justice Roberts refrained from ruling with the liberal Justices on Dobbs, agreeing with the 15-week Mississippi abortion ban, opting only to write a concurring opinion that suggested his disapproval with how both Roe and Casey precedents were overturned. Other notable similarities are that both the draft and final Dobbs opinions define the Roe ruling as “egregiously wrong” from the time it was decided nearly 50 years ago to modern day. Both opinions assert that abortion is out of context with the U.S. Constitution and that it is strictly a social issue best left to the 50 state legislatures to handle. Justice Alito’s reasoning in the opinion to overturn Roe and deny abortion any protection under the Constitution also remained the same, with a key concluding excerpt reading,
“We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
Post-Roe America—Control of Abortion vs. Preserving Life—Returns to the 50 States
With the monumental decision by the Supreme Court on the scourge of abortion and the overturning of 50 years of standing by the abortion industry leaning on Constitutional protections, a new era begins for the proponents of pro-life policies. Across the 50 states, the issue of abortion is now strictly decided by statues passed in state legislatures and ratified into law by elected Governors. Prior to the gravely misconstrued Roe decision, control over abortion was originally managed by the individual states and not the national government.
As Justice Alito’s opinion in Dobbs reminds, the issue of abortion was maintained by the public, with notions of its legality handled through political discourse among elected state officials. This was the case for the first 185 years after the U.S. Constitution was adopted in 1787, until 1973, when nine unelected judges suddenly deemed it necessary to wade in on a purely social issue managed at the state level. They made the egregious error of contemplating the grant of constitutional privilege for a controversial practice that is mentioned nowhere in America’s founding documents. The misperceived “right” to an abortion is not even remotely implied under any of the Bill of Rights protections, nor is it safeguarded as an individual right to liberty under the Fourteenth Amendment’s Substantive Due Process clause. But this did not stop the Court from providing a broad protective right to abortion in Roe, ending a longtime practice for states to govern its legality.
With the modern Court finally righting this 49 year wrong, the current landscape of abortion rights across certain states stands to develop drastically in the coming years. The March for Life organization, in partnership with the Christian conservative organization, Family Policy Alliance, provides educational information on their website pertaining to the abortion battle following the Dobbs v Jackson opinion. With the end of Roe, 21 states have prepared to launch pro-life measures to greatly deter the ability to perform an abortion. Many of these states have already ratified such measures into law, most notable examples being Oklahoma, which passed the nation’s strictest abortion law a month before the Dobbs decision, and Texas, which passed a ban on abortion—“Texas Heartbeat Act”—after six weeks of pregnancy in September 2021. This law provided the model for Oklahoma’s restriction.
In the months following Texas’s abortion ban, there was a reported surge in abortions in Oklahoma, with people fleeing from Texas to abortion facilities that saw a 2,500% increase in Oklahoma. Oklahoma’s present law serves as a trigger ban to immediately outlaw abortion should the Court overturn Roe, which was prepared just two weeks after the leaked draft opinion became public. In addition to this, Texas’s trigger law, which provides more severe civil and criminal penalties for those who violate its strict abortion ban, is set to go into effect on August 25th. Other states providing robust protections to the unborn following the Roe decision include Georgia, South Carolina, Tennessee, Arizona, and Utah. Abortion is now completely banned (with no exceptions) in eight states, providing a developing trend toward protecting the right to life.
Beyond the 21 states providing substantial protections to children in the womb and respect for parental rights, there are 19 states that are struggling to enact pro-life legislation. States under this category also possess trigger-bans that are posed to be activated when the opportune time presents itself. Some of these states that have prepared new forms of restrictions on the precipice of being implemented are Idaho, Tennessee, and Louisiana. Idaho’s ban is set to go into effect on the same day as Texas’s modified ban on August 25th, and the ban virtually outlaws abortion in its entirety with the slight exceptions of rape, incest, and to protect the mother’s life.
For these states, the Supreme Court’s ruling on the unconstitutionality of abortion was merely the first act in a domino effect to trigger existing policies that are later enacted into law to prohibit abortion. Thirteen states had already prepared trigger-bans to go into effect prior to the Dobbs ruling, with three of these states implementing bans immediately after the ruling was handed down. Many of the states in these categories impose a good deal of restrictions on abortion, but, according to the March for Life website, have far to go before their laws provide a full reflection to the value of human life. States in this area have a responsibility to fight as hard as necessary to revise existing restrictions in a manner that is completely prohibitive of abortion.
The final category of states is those that have provided very little to no restrictions against the terrors of abortion and infanticide. Abortion clinics in these states have the greatest reign to conduct their abhorred procedures against defenseless infants in the womb. Some of these states harbor laws that provide a guaranteed “right to choose” for women to have complete autonomy in aborting their child without any legal or procedural barriers. These states provide access to abortion even after Roe has been abolished and abortion deemed unconstitutional. There are presently 20 states in this danger zone category, and the March for Life distinguishes the legislative fight in these states to implement pro-life measures of protection to infants as an uphill struggle. Some of the states (most of which are heavily Democratic) in this category include, Illinois, New York, California, Washington, Nevada, and Colorado.
Among the most radically pro-choice among this list is Colorado, with the Democrat Governor Jared Polis, passing an executive order that codifies abortion, creating a “fundamental right” to abortion by denying any rights and hope for the unborn in that state. The law dehumanizes an embryo and fetus, deeming these as not constituting a lifeform. It denies basic protections to the unborn, while emboldening radical abortion activists to encourage migration for women seeking abortions to states like Colorado. Another notorious pro-choice state that has worked to codify abortion is New York, which under Governor Cuomo passed a law that safeguarded abortion in 2019 should Roe ever be overturned.
Restoring the Right to Life: Looking Forward in the Fight Against Abortion
With the Supreme Court handing down one of the greatest, most impactful decision in American history, the ramifications of Dobbs to pave the path for dismantling the remnants of the abortion industry are considerable. Many state legislatures across America are hard at work in passing laws that put the death knell into their already anti-abortion statutes. When assessing the state-by-state landscape regarding pro-life vs. pro-choice polices, the battle over abortion seems to currently favor safeguarding the right to life. Following the Dobbs decision, more and more states are gradually imposing restrictive measures to outlaw abortion either substantially or completely, and other states are fighting hard to pass incremental measures to forbid certain forms of abortion. Still, a host of states have clinched hard onto the wicked vestiges of Roe, seeking to carry out its legacy of infanticide by codifying the “right” to abort unborn children.
Looking at the data provided by the March for Life and Family Policy Alliance, there are at least 30 states with some form of prohibition on abortion, whether that be substantial or minor, as compared to the 20 states that provide little to no restriction on abortion. Thus, the majority of states do not completely tolerate abortion and are gradually imposing measures that restrict abortion access up to the moment that a heartbeat is detected. In a post-Roe America, let us only hope that this trend eventually transforms into a full-scale push to completely outlaw abortion across all 50 states.
Category: Socrates Corner
