Abortion Revisited - My Take (Justice Alito's Draft Decision)

(The preliminary decision that was leaked dealt with the case of Dobbs vs. Jackson Women's Health Organization.  See the December 8, 2021 post for a further discussion of the oral arguments, and my incorrect prediction.) 

In Dobbs, the issue was the 15 week limit put on the right to get an abortion by the State of Mississippi.  That was the limited issue before the Supreme Court.  Of course, the Supreme Court is not limited to a review of the technical issue before them.  And if Justice Alito's decision becomes final, the Court will have reversed the 1973, 7 to 2 decision, in Roe vs. Wade.  

In listening to the oral arguments, it was clear to me that Justice Roberts saw the push to overturn Roe.  He kept trying to focus everyone's attention on the 15 week rule.  As I wrote in December, had Roberts been in the majority, I believe he would have assigned the writing of the opinion to himself.  I believe he would have held that the 15 week limit was not an "undue burden" per Casey, but would have also maintained the Constitutional right to an abortion under Roe.  The three liberal justices would have gone gone along in order to avoid an overturning of Roe, but likely would have written their own concurring opinions objecting to any restrictions on Roe.

I would have sided with Roberts.  Here is why.  First, Roe is nearly a 50 year old precedent.  I cannot help but wonder if any of the five Justices signing on to the preliminary draft decision, did not see any benefit to a gradual change in the law regarding abortion.  Yes, abortion has been one of the most contentious issues in our country since Roe was decided.  But did none of those Justices see a benefit to judicial economy?  In deciding cases based on the facts before them - in Dobbs it was the 15 week rule.

The other reason that I would have sided with Roberts is my disagreement with some of the state laws that have recently been passed.  I would allow abortion to protect the life of the mother.  I would allow abortion to protect the health of the mother.  I would allow abortion in cases of rape and incest.  And there are simply too many instances of situations where, at least within the first 15 weeks proscribed by Dobbs, the government should stay out of it.  

  

Abortion Revisited - My Take (The Leak)

Let me start with this.  I am outraged by the leak of a preliminary draft (written in February) of a Supreme Court decision that would overturn Roe vs. Wade.  I cannot imagine that any of the Justices would be the source of the leak.  That would leave the clerks of the Justices, and other Court employees.  The clerks are generally new attorneys.  If one of them is responsible for the leak that person should lose their license to practice law.  

The draft decision was authored by Justice Alito, with Justices Thomas, Gorsuch, Kavanaugh and Coney-Barrett joining.  Between February and June, when a final decision will issue, Justices may change their vote, and the reasoning of the decision may be altered.  I completely agree with a Wall Street Journal editorial suggesting that all nine Justices issue a joint statement deploring the leak.

I question how long our society can last with these non-stop assaults on our basic institutions.  Just in the last few years.  A cop knelt on the neck of George Floyd, and much of the country decided that all police were no good.  Are there bad police?  Of course.  But there are bad members of every profession.  Who is in favor of ending the medical profession because there are some bad doctors?  We have seen the result of undermining the police, with the defund movement, with the lack of political support, and with district attorneys who refuse to prosecute.  It should surprise no one that crime is up everywhere.

No one on the left needs to write to me about January 6.  I said that I was appalled by what I saw.  I said that I immediately accepted that Joe Biden won, and that Trump should have done the same after the Electoral College vote.  And no one on the right needs to tell me about some new evidence of voter fraud.  At this late date the 2020 election results are not going to be reversed.  

Let's not forget the actions of the Majority Leader of the United States Senate, Chuck Schumer, threatening (yes, threatening!) sitting Justices of the Supreme Court, telling them they will "pay the price" if they do not decide how Schumer wanted them to decide.  Now, as with the Capitol building, we have a fence around the Supreme Court building.  We even have protesters outside the homes of some of the Justices.

Schumer, proving once again how little he knows, said it comes with the territory, because he has had protesters in front of his house.  He is a politician, and people have a right to seek a redress of grievances from their elected officials.  Although I do not favor politicians even being harassed in front of their homes either.  

But the Courts are different.  We should not want Courts being pressured to decide cases a certain way.  Cases should be decided on the facts and the law.  If anyone disagrees, tell me this.  If you were a criminal defendant, and a mob outside the courthouse was shouting "hang him (or her)" would you want the jury to find you guilty in order to appease the mob?  Or, would you like the jury to decide based on the facts and the law? 

I am not naive.  I understand that the Justices are human, that they have a view of how the world should be.  And while those personal beliefs do, at times, guide their decisions, there are many times when the results are not so predictable.  

I know that when I attended public school, the teachers instilled a sense of patriotism, a love of country, a respect for the flag.  We were taught about our founding documents, about how the Founding Fathers created the greatest system of government in the history of the world.  (Again, no need to tell me about slavery, and women's lack of rights.)  Our original governing documents created the bases for the freedoms and rights later given to blacks and women.  How much people want to keep America will be up to later generations.  

A Clarification

In my November 28, 2021 post, I explained why I was opposed to capital punishment.  That needs to be clarified.  Yesterday, there was a horrific mass shooting in a market in Buffalo, New York.  Today, there was one inside a church in Orange County, California.  In both of these instances, there is no doubt as to the identity of the shooter.  

In the cases discussed in last November's post, there were no eyewitnesses.  No one was caught in the act of killing.  In Buffalo and in Orange County, the perpetrators were caught in the act.  There were multiple eyewitnesses.  There is no concern about proving the identity of the shooter beyond a reasonable doubt - because there is no doubt whatsoever.    

The only question left for these shooters, is the type of capital punishment and the place it is to be carried out.  These shooters do not deserve a needle in the arm, away from public view.  I think serious consideration needs to be given to a return of public executions - whether by hanging or firing squad.  Yes, you bet I am plenty angry as I write this.  And I have no doubt that some will be horrified by my suggestion.  But I am horrified by evil.  

We need to restore a sense of respect for others.  We cannot do that when so many continue to focus on our differences, such as the color of our skin.  We need to restore a sense of respect for human life.  We need to inculcate a sense of decency in our youth.  And we need to again bring back a sense of shame for wrongdoing.  How we might be able to do all that is the tricky part.  I think a study of the Ten Commandments would be a good start.