Today, June 24, 2022, the United States Supreme Court released its Opinion on a case which addressed the Constitutionality of the supposed “Right” to an abortion. The Opinion download in .pdf format is 213 pages. This article is based only on a reading of the 8 page summary, released with the Opinion (plus skimming parts of the remaining text).
The case comes from Mississippi, where a state law prohibits abortion after 15 weeks of gestation, with some exceptions. In short, the case title is Dobbs v. Jackson.
The “Right” to an abortion NEVER existed in the Constitution, but was “created” by a liberal Supreme Court in 1973, by extending the concept of “Liberty” to include the choice of how to maintain or terminate a pregnancy. Since then, Democrats and other Leftists have insisted that the “Right” is “fundamental” and CANNOT be taken away (while at the same time arguing that explicit Rights, such as stated in the Second Amendment, can be limited for safety reasons). This Court now states (rightly and finally) that the Roe decision was not based on proper legal analysis, and the subsequent cases on the same topic should have re-examined the foundation of the Roe decision and rejected it as a precedent.
Justice Alito wrote the Opinion for the Court, with Justices Thomas, Gorsuch, Kavanaugh and Barrett joining. Chief Justice Roberts joined in the outcome with a separate opinion. This welcome and historic change in national policy is SOLELY due to the appointment of CONSERVATIVE Justices during the Trump Presidency. (No doubt the hand of the Almighty played a part, as did the Republicans in the Senate).
The Opinion relates several standards and processes for legal analysis used in “Rights” cases. The first question is whether the “Right” is expressed explicitly in the US Constitution – which this “Right” is not. The Supreme Court is generally reluctant to create “Rights.”
The Opinion states that our Nation has NO history of accepting the “Right” to an abortion as a part of “Liberty” – a “Right” that exists in NO State Constitution, nor in the history of our society. The Opinion further, and boldly states that until the Roe decision, abortion was generally treated as a CRIME. In fact, 3/4 of the states had statutes criminalizing abortion. (Democrats seem to want to turn Crimes into non-crimes and non-crimes into crimes).
Our legal system values the legal analysis and decisions in previous cases, ruled on by higher (appellate) courts. In this case, the Supreme Court also reviews that standard and principle, referring to Plessy v Ferguson and Brown v Board of Education as examples of when the US Supreme Court has righteously overruled previous bad decisions.
Finally, the Opinion reviews the terms of the Roe Opinion, stating that the language used in the Roe Opinion was more like fact finding reports from legislative deliberations than the legal analysis that an Appellate Court should use. Amplifying that, this Opinion states that the details which the Roe decision included were more in the form of legislation than of legal opinion.
In the end, barely related to the legal analysis, was the statement in the Opinion that the social and political environment should have no impact on the legal analysis of a judicial decision. This comports with the “conservative” view that left leaning (Democrat) Judges “legislate from the Bench.” A FUNDAMENTAL characteristic of our Constitution – the Separation of Powers – is the principle in which the powers of the three branches, Executive, Legislative and Judicial, are clearly defined and differentiated. This decision is a WELCOME return to the PROPER role of the Supreme Court, as defined by Marbury v Madison in 1803. Hopefully, there will be more important decisions following this course in the future.
Justice Thomas wrote a separate Opinion, concurring in the Decision, but making a point NOT in the main Opinion: that the Due Process Clause DOES NOT protect Rights. This is a separate weakness in the Roe decision. Justice Thomas states that the Due Process Clause requires government actors to use a “Process” before depriving a citizen of a Right. Justice Kavanaugh emphasizes another, different point. The Constitution does not address abortion, therefore the issue is left to the States. Most importantly, the Supreme Court SHOULD NOT have taken a “side” in the Roe debate, but, rather rejected the authority to decide the case.
Chief Justice Roberts also wrote a separate Opinion. (My opinion is that he should NOT be on the US Supreme Court, and ESPECIALLY NOT the Chief Justice). His Opinion agrees with the final decision of the majority of the Justices, but begins by appearing to accept that a woman has a Right to an abortion, it is merely “when” that Right begins and ends that is questionable. (This man does not deserve the title of Justice or Chief. This Opinion is an example of why he FAILS on multiple occasions to deliver proper judgements. He is simply NOT CAPABLE of rational, legal analysis, but rather, like an activist, leftist judge, he develops legal opinions based on public opinion).
This decision, actually following the US Constitution, DOES NOT stop States from allowing or prohibiting or regulating abortion. This power was NEVER within the jurisdiction of the US Supreme Court. Roe v Wade was a MORALLY bad decision AND a LEGALLY bad decision. Now, it has properly been overturned. The battle is rightly returned to the 50 State Legislatures and the 50 State Courts.