Year End Reflections, Part II (Abortion Rights at SCOTUS)

Imagine my surprise when, while eating my breakfast, I turned on the TV last Wednesday morning and found myself listening to oral arguments at the Supreme Court in the case of Dobbs vs Jackson Women's Health Organization.  While there was no video, only audio, I could not recall another time where I was able to listen in on arguments at the Supreme Court.  As an attorney, I was fascinated.  

Allow me to start with what should be obvious, but maybe not.  Neither side argued "morality" or religious doctrine.  While much of our society, and laws, are founded in Judeo-Christian doctrine, we are not run as a religious country.  Our government is, and should be, a secular one.  

The Dobbs case involves a Mississippi statute banning most abortions after 15 weeks.  (See the October 5, 2021 post for a discussion of this and the Texas abortion law, which banned abortions after 6 weeks.)  The 15 week limit conflicts with the 1973 decision in Roe v. Wade, allowing abortions prior to the date of fetal viability, generally considered to be at 24 weeks.  (Some would argue now as early as 22 or even 20 weeks.)  In Planned Parenthood v. Casey (1992), the Supreme Court added (modified Roe?) an "undue burden" on abortion rights standard.

Arguing on behalf of Mississippi was their Solicitor General, and opposing was the US Solicitor General and counsel for Jackson Women's Health.  The pro abortion side argued that Roe should be treated as a "super precedent," akin to the 1954 decision in Brown v. Board of Education.  Brown overturned the 1896 decision in Plessy v. Ferguson, which had held racial segregation laws that were "separate but equal" were constitutional.  Brown reversed that decision.  I am reluctant to declare any court decision a "super" precedent.  If it is deserving of that nomenclature, then perhaps the proper approach is to add a constitutional amendment based upon the Court's holding.  

Justice Amy Coney Barrett asked whether or not the so-called "safe haven" laws obviate the need for abortions.  There are safe haven laws in all 50 states, although the terms vary somewhat state to state.  Generally, a woman or legal guardian is able to drop off a newborn baby at a fire station or hospital and, assuming no issues of child abuse, they can remain anonymous and not face any legal charges.  

Chief Justice Roberts tried to keep the arguments focused on Mississippi's 15 week rule which was technically the only issue before the Court, even though there was much argument on both sides on the overturning or upholding of Roe v. Wade.  Roberts wanted to know if 15 weeks was an undue burden, and why it would be considered a significant departure from the 24 weeks allowed by Roe.  I do not believe Roberts wants to explicitly overturn Roe.  

Justice Kavanaugh inquired why the Court should even be involved in the abortion issue, suggesting that the Court remain "neutral" on the issue.  It would seem that "neutral" would necessitate the overturning of Roe, and leaving the decision to the States.  Although, I imagine Pelosi and Schumer would immediately pass federal legislation permitting abortions consistent with Roe, if the Court overturned Roe.

Justice Sonia Sotomayor was having none of it.  She was outraged at the mere possibility that the Court might reverse Roe based upon a change in the make-up of the Court.  After all, President Trump ended up being able to appoint three justices to the Court (Gorsuch, Kavanaugh and Barrett).  Sotomayor:  "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?...I don't see how it is possible."

In the October 5 post, I opined that I thought the Court would not overturn Roe, with a 6 to 3 vote.  Listening to the arguments (not all of it) I am inclined to slightly amend that opinion.  There is a chance that the Court will uphold the Mississippi statute's 15 week limit, without expressly reversing Roe.  In other words, abortion would still be a constitutional right.  And, they would need to declare that the 15 weeks is not an undue burden, consistent with Casey.  If Roberts is able to get a majority to agree with that, he would like assign the writing of the opinion to himself, in order to guarantee that Roe was not overturned.

Year End Reflections, Part I (In Case You Had Any Doubt)

I certainly had no doubt, especially given the number of times that people on the left stopped being friends with me because of political differences.  But now I have located poll numbers to prove it.  People on the left are far more intolerant than people on the right.  Does this really surprise anyone?

An Axios poll of college students conducted last month is quite revealing.  71% of Democrats would not go on a date with the someone who voted for the opposing party's presidential candidate, while only 31% of Republicans felt the same way.

41% of Democrats said they would not shop at, nor support a business, who voted for the opposing candidate.  But only 7% of Republicans agreed with that.  And while 30% of Democrats would not work for someone who voted for the opposing party, only 7% of Republicans concurred.

And, perhaps most telling, 37% of Democrats would not be friends with someone who voted for the opposing party, a mere 5% of Republicans agreed with that position.

A Pew Research poll of all adults from 2019 bears out the same findings.  43% of "single and looking" Democrats would not be willing to be in a relationship with a Republican.  But only 24% of Republicans described an unwillingness to be in a relationship with a Democrat.  

Now, some may argue these differences are all due to Trump/Trump derangement syndrome.  Maybe in part.  But some commentators have long discussed the fact that Democrats think Republicans are evil, while Republicans tend to think that Democrats are wrong.  And Axios commented on the fact that some Democrats simply believe their issues - such as abortion, LGBTQ rights, and immigration - are more important than any issues Republicans care about.  I guess that means things like free speech, liberty, less government involvement in our lives, capitalism and the like, are relatively unimportant. 

One thing is certain.  I have not ended any friendships with those holding opposing political beliefs.  But that has not stopped friends and colleagues of 25 years, 30 years and 40 years (3 different individuals) from ceasing their friendships with me - simply providing yet more examples of left-wing intolerance.