The oral argument in Dobbs v. Jackson Women’s Health Organization was one of the most revelatory airings of how Supreme Court justices think about arriving at consequential decisions. The questions they asked and the opinions they advanced raised a barrage of issues worth pondering:
The legal principle of stare decisis (Latin for “to stand by things decided”), a hifalutin’ way of saying that courts should hesitate before overturning precedents, came up a lot. The conservative justices pointed out that plenty of precedents have been overturned by past Supreme Courts, their prime example being Brown v. Board of Education, the landmark 1954 school desegregation decision that reversed Plessy v. Ferguson, which in 1896 declared that “separate but equal” schools for blacks were just fine. The attorneys arguing against the Mississippi law prohibiting abortions after 15 weeks of pregnancy missed an opportunity to point out that Brown and the other precedent-shattering cases the justices mentioned differ from Dobbs in a very important respect: their reversals righted obvious, consensus wrongs. The original decisions later overturned were by all accounts immoral and unethical. In Dobbs, morality and ethics are a much murkier matter.
The “stench” that Justice Sotomayor said would adhere to the Court if it overturned Roe ignores that this partisan reek already exists. One has to be living in a cave without access to outside world media to believe that the Court has not already been irreparably harmed by the awful, often political decisions it has handed down in this century, e.g., Bush v. Gore (deciding the 2000 presidential election…by one vote) Citizens United (legalizing bribery in politics…and announcing that corporations are people, too) Shelby County v. Holder (gutting the Voting Rights Act), Rucho v. Common Cause (declaring that courts have no role in gerrymandering cases because these are political questions [whereas Bush v. Gore and Citizens United were not?]), and District of Columbia v. Heller (a tortured misreading of the Second Amendment). In all these decisions, the Court ignored logic, ethics, data and last but not least, the law.
Chief Justice Roberts mistakenly claimed that the fetal viability standard was mere “dicta” (i.e., just an aside) and not essential to the decision in Roe. It’s scary when the top U.S. judge doesn’t accurately frame something critical to what he is about to decide.
If Roe goes down, then body autonomy, a central rationale for the constitutionality of abortion, will no longer apply to pregnant women. Compare that to conservative justices in lower federal courts who have recently proclaimed that body autonomy justifies bans on vaccine and mask mandates, an opinion I suspect the Supreme Court’s conservatives also hold.
If the Court overturns or substantially limits Roe, which I believe is inevitable, it will be confirming the Republican inference that the sanctity of human life ends at birth. After that it is every man and woman for him/herself.
Republican legislators rail against abortion while simultaneously opposing any assistance to poor families who strain financially to support their children. They consistently vote against any proposal that would help those families. If conservatives believe that material circumstances prompt women to terminate a pregnancy, they need to do something to ease them. Yet they roadblock universal health insurance coverage, paid family leave, a livable wage and child care tax credits. Hypocrisy, thy name is GOP.
Justice Barrett’s solution, offered from the bench: Women could either leave unwanted newborns at the nearest police precinct or fire station, or give them up for adoption!
Overturning Roe v. Wade will not result in significantly fewer abortions. Restricting access to the procedure will mean fewer legal, safe abortions. Women of means will simply travel to places where they can safely terminate their pregnancies. Poor women will be forced to return to the back alley and coat hanger era.
Dick Hermann
December 3, 2021
The legal principle of stare decisis (Latin for “to stand by things decided”), a hifalutin’ way of saying that courts should hesitate before overturning precedents, came up a lot. The conservative justices pointed out that plenty of precedents have been overturned by past Supreme Courts, their prime example being Brown v. Board of Education, the landmark 1954 school desegregation decision that reversed Plessy v. Ferguson, which in 1896 declared that “separate but equal” schools for blacks were just fine. The attorneys arguing against the Mississippi law prohibiting abortions after 15 weeks of pregnancy missed an opportunity to point out that Brown and the other precedent-shattering cases the justices mentioned differ from Dobbs in a very important respect: their reversals righted obvious, consensus wrongs. The original decisions later overturned were by all accounts immoral and unethical. In Dobbs, morality and ethics are a much murkier matter.
The “stench” that Justice Sotomayor said would adhere to the Court if it overturned Roe ignores that this partisan reek already exists. One has to be living in a cave without access to outside world media to believe that the Court has not already been irreparably harmed by the awful, often political decisions it has handed down in this century, e.g., Bush v. Gore (deciding the 2000 presidential election…by one vote) Citizens United (legalizing bribery in politics…and announcing that corporations are people, too) Shelby County v. Holder (gutting the Voting Rights Act), Rucho v. Common Cause (declaring that courts have no role in gerrymandering cases because these are political questions [whereas Bush v. Gore and Citizens United were not?]), and District of Columbia v. Heller (a tortured misreading of the Second Amendment). In all these decisions, the Court ignored logic, ethics, data and last but not least, the law.
Chief Justice Roberts mistakenly claimed that the fetal viability standard was mere “dicta” (i.e., just an aside) and not essential to the decision in Roe. It’s scary when the top U.S. judge doesn’t accurately frame something critical to what he is about to decide.
If Roe goes down, then body autonomy, a central rationale for the constitutionality of abortion, will no longer apply to pregnant women. Compare that to conservative justices in lower federal courts who have recently proclaimed that body autonomy justifies bans on vaccine and mask mandates, an opinion I suspect the Supreme Court’s conservatives also hold.
If the Court overturns or substantially limits Roe, which I believe is inevitable, it will be confirming the Republican inference that the sanctity of human life ends at birth. After that it is every man and woman for him/herself.
Republican legislators rail against abortion while simultaneously opposing any assistance to poor families who strain financially to support their children. They consistently vote against any proposal that would help those families. If conservatives believe that material circumstances prompt women to terminate a pregnancy, they need to do something to ease them. Yet they roadblock universal health insurance coverage, paid family leave, a livable wage and child care tax credits. Hypocrisy, thy name is GOP.
Justice Barrett’s solution, offered from the bench: Women could either leave unwanted newborns at the nearest police precinct or fire station, or give them up for adoption!
Overturning Roe v. Wade will not result in significantly fewer abortions. Restricting access to the procedure will mean fewer legal, safe abortions. Women of means will simply travel to places where they can safely terminate their pregnancies. Poor women will be forced to return to the back alley and coat hanger era.
Dick Hermann
December 3, 2021
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