(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.
Hi Mike,
ReplyDeleteContinuing thanks for the blog.
I'm surprised by your new position. Aren't you now being like those who prefer the result over the rule of law?
I was in my second year of law school studying Constitutional Law when Roe came down in 1973. I remember thinking "I guess the Supreme Court can do whatever it wants" relying on penumbras and the like!
There is nothing constitutional about abortion on the federal level. Alioto's opinion was brilliant, sensible, and compelling.
Remember the states, the 10th Amendment and what we learned about "police powers" of the states. Love to hear your response.
Your friend and colleague,
John Newport
Thanks for your comment, readership and friendship, John. I guess my main issue is the Court had before it the 15 week rule in Mississippi. That is what they should ruled on. I do agree that the States should have more powers than all branches of the federal government allow. But, I was also concerned about new state laws making it difficult to get an abortion even under the circumstances I said I would allow in the post. Was the original Roe decision on shaky legal ground? Yes. But here we are 50 years later. Another reason I felt the "go slow" approach was appropriate, and the Justices should have just dealt with the actual case before the Court - Mississippi's 15 week rule.
DeleteWell we'll see more when the final opinion is issued, along with the concurring/dissent opinions. Maybe we will both then have different views than presently.
ReplyDeleteCheers!