My previous blogs, some might surmise, seemed to tread on a closely held conservative tradition often attributed to Thomas Jefferson concerning states’ rights. But Jefferson espoused much more than the states’ rights heralded by contemporary Republicans. His Declaration of Independence espoused the rationale for separating the colonies from Britain. But it also established the foundational principle for a new government based upon “the laws of nature and of nature’s God.” The grievances listed in his Declaration did more than merely subjugate Americans “under absolute despotism.” For they invariably violated this natural order wherein we humans are “created equal . . . (and) endowed with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.” With these words, the Declaration set the ground rules for the American Constitution. Before its creation, no other document in history attempted to create a democratically inspired government founded on the very nature of humanity. Therefore, if all of us humans are to be treated as equal, then every executive or legislative action must assure that equality. Consequently, the American Constitution also created a judiciary as its third and equal branch of government and the final arbiter of our individual liberties. As Hamilton stated in Federalist 78, “the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments.” ¹ In fact, all instruments of governmental power—executive and legislative, whether federal or state—fall under judicial review, with the Supreme Court as the ultimate arbiter of justice in our American government–literally, a bulwark of our liberty. 

 

Before delving into Constitutional Amendments and Court precedents, let me acknowledge that I am not a lawyer. Jurisprudence presumes an extensive knowledge of the law and its myriad applications. But I do have a perspective less encumbered by legal precedent. Partly, my comments are inspired by (now) former Justice Breyer. “The Court’s power,” he explains, “like that of any tribunal, must depend upon the public’s willingness to respect its decisions—even those with which they disagree, and even when they believe a decision seriously mistaken.” ² 

 

 Although the American Constitution is the bedrock of our legal system, its very existence was preordained by the Declaration of Independence that grounded it in the birthright of every human being, male or female. Jefferson’s Declaration, though not a legal document, is the inspiration for the Constitution wherein was crystallized America’s cultural heritage from the Age of Enlightenment. After years of internecine wars and the clash of empires, a few philosophers and statesmen argued for the “rights of man” over the privileged class of monarchs, aristocrats, and government officials. Of course, the Enlightenment had many tentacles into science, politics, culture, and human behavior. But my focus here is on Jefferson’s contribution to the founding principles of our American system of government. Clearly, he represented the ideals of the social contract and “natural rights” espoused by Locke, Rousseau, and others. His counterpart during the creation of the American Constitution was Benjamin Franklin, truly a renaissance man and the acknowledged final arbiter on practically every dispute during the Constitutional Convention. These men espoused ideals that focused the American government on the general welfare of every man, woman, and child, as opposed to any groups, class, dignitaries, moguls, or politicians, regardless of popularity or fan support. Given the founding ideals espoused in Jefferson’s Declaration and immortalized in our Constitution by Franklin and its other cosignatories, how should we adjudge recent Supreme Court rulings on abortion? 

 

First, let us review Justice Alito’s argument to amend what he terms the “egregious error” committed by his predecessors on the Supreme Court. Of course, he was referring to the Roe V. Wade Supreme Court opinion of nearly fifty years ago. All subsequent challenges, he states, were rebuffed not on their merits but on the legal theory of “stare decisis, which calls for prior decisions to be followed in most instances, (and) required adherence to what it called Roe’s ‘central holding—that a State may not protect fetal life before viability.’” ³ Like any good lawyer, his argument is buttressed by references to previous summations and legal precedents regarding the constitutionality of a woman’s right to end a pregnancy, as previously asserted by the Supreme Court. First, he assumes a woman does not have that right. Secondly, he assumes that rights must be placed in legislative bodies duly elected and representative of the voting public. And, thirdly, since “opinion” on the matter differs from State to State, the Federal government cannot assume any authority to decide the matter for the country. In fact, he opines, there is no historical precedence that might or could justify a Supreme Court determination of abortion rights. Indeed, many state laws have defined abortion as a crime, punishable by law. So, Justice Alioto must conclude, the “unalienable” right here cannot reside with the mother to decide the course of her pregnancy, but with the unborn child-fetus-zygote. And since the developing embryo is not yet a cognizant human being, the State legislators must assume that right even though diverse legislatures and their supporting public may differ and change over time. Finally, he concludes that history affirms a uniform consensus on the rights of the unborn since abortion has been previously ruled a crime in 37 states and 12 territories.     

 

In the words of the Mississippi advocate before the Supreme Court, “Court’s decisions have held that the Due Process Clause protects two categories of substantive rights—those rights guaranteed by the first eight Amendments to the Constitution and those rights deemed fundamental that are not mentioned anywhere in the Constitution. In deciding whether a right falls into either of these categories, the question is whether the right is ‘deeply rooted in [our] history and tradition’ and whether it is essential to this Nation’s ‘scheme of ordered liberty.’ (reference Timbs v. Indiana, 586 U. S.).” Should the issue then depend on whether abortion is rooted in history or in its nature as a fundamental right?  

 

According to Justice Alito, Roe v. Wade either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis. He does not consider the argument that a pregnant woman has a fundamental right to decide the term of her pregnancy based on the viability of the unborn and her ability to support the future welfare of a newborn. Any corollary risks to her health and life are not even considered by Justice Alito, since he considers the matter subject to the whim of state legislators governed by dissident or variant public opinion in individual states. In fact, Alito can find no justification for Roe v. Wade other than it being a precedent, which he once supported during his confirmation hearing, but now disavows as an “egregious error.”  

 

In this manner, the long-held doctrine of stare decisis (“to stand by things decided”) is abandoned, even though the fundamental rights affirmed in Roe v. Wade have been accepted law for nearly fifty years. But Justice Alito not only finds Roe v. Wade an egregious error, but the long held legal doctrine of stare decisis no longer relevant. Perhaps, Justice Alito’s summation is not a legal opinion, but a political opinion. Given his arguments, how would he assess the fundamental rights of slaves or of women to own property. The history of the New World did not acknowledge any human rights for slaves in the 17th, 18th, or even most of the 19th century. And women’s rights to own property, to vote, or even to be paid commensurate with men in like positions were not acknowledged until the 20th century. History, Justice Alito fails to notice, can be an unreliable arbiter of fundamental rights. Does he not know that lynching was once legal? Or that women were burned at the stake for exercising supposed magical powers? Though Justice Alito admits that “stare dicisis restrains judicial hubris,” he seems unable to restrain himself from recognizing its relevance to his own hubris. 

 

For my readers, there is no need for me to repeat my distinction between intelligence and reasoning. Justice Alito’s jurist opinion of Roe v. Wade is an impressive legal document with many references that support a well-reasoned argument. Unfortunately, it can become myopic when it excludes a wider view of reality. For example, anybody can quote biblical references from the Old Testament that seem to negate the New Testament—like that uniquely Christian dictum of “love thy neighbor as thyself.” Therein is a uniquely fundamental truth that would have or could have forsworn years of warring tribes not only in ancient Judea but even in our modern world. In a perverse reversal, Justice Alito’s resurrection of mostly 19th century laws criminalizing abortion ignores the more enlightened jurisprudence of the last 50 years. For example, our society has grown to recognize the gross subjugation of women, even in our enlightened democratic republic. America, unfortunately, still struggles with the issue of equality as even Jefferson’s idiom revealed when he wrote “all men” instead of all human beings “are created equal.” But women are not just endowed with the same unalienable rights as men, they are also the caretakers of our regeneration. Justice Alito’s assessment of abortion is so shrouded in legalese that he loses sight of the bigger picture—the human dimension. Namely, he seems insensitive to the roles our wives, sisters, and mothers share in securing the future of our posterity. They are not just a “mechanism” for nurturing fetuses in the womb. Pregnant women must also weigh the viability of their newborn’s future. First, they must consider whether they are mentally and physically able to be a mother. Will they be able to provide for their child’s needs? And can they secure the medical care required to deliver and support the health of a newborn? These are amongst the decisions every pregnant woman must consider. And she must be given the support she needs to make those decisions as well as obtain the medical care to assure a safe pregnancy. Roe v. Wade recognized her right to decide the term of her pregnancy before the fetus became viable, that is, able to live outside of her womb. Her freedom to make these decisions should be protected by the Supreme Court as the bulwark of that liberty it must preserve. Roe v. Wade did so.  

 

According to Alito, Casey abandoned the privacy right scheme (from Roe) in favor of the 14th Amendment’s due process justification. Therefore, he argues, it never justified Roe with new arguments, other than resting on precedent. But “precedent” implies no new arguments are needed. Even the Mississippi opinion admits that “Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed ‘potential life.’”  Justice Alito, however, believes the term “potential life” is a misnomer that he would replace with an “unborn human being.” And this so-called misnomer is at the crux of what he terms the “moral question” neither Roe nor Casey address. The reason his alleged “moral question” is not addressed is because its premise is irrelevant. Neither Roe nor Casey assumes an aborted fetus is human until it can survive outside of the womb. Science tells us that a zygote or fetus with less than 22 weeks in the womb is not able to live outside of the womb. They are not yet what Alito terms “unborn human beings.” They are potential human beings in the same sense as an unfertilized egg subsists in a woman’s womb with the potential to become a human being after fertilization and development in the womb. The mother’s womb nurtures the fertilized egg as it develops into a fetus and eventually reaches term or the ability to live outside of the womb as a human being. Normally, a fetus reaches term after 26 or more weeks in the womb, though some of us emerge as fully human a bit sooner. But medical science has long established that no embryo less than 22 weeks in the womb can survive birth. They are considered “unviable.” And we do not consider these unviable fetuses to be unborn human beings. If we did, then Justice Alito’s term de jure “unborn human being” would make abortion criminal homicide. Is it his intent, then, to allow some States to re-criminalize abortion while others are permitted to authorize safe abortions as a normal medical procedure? If so, his opinion will ignore twenty-first century science and create a jurisprudence hodgepodge across myriad states. And the ultimate victims will not be aborted fetuses but the lives of many pregnant women who may be victims of rape, incest, or the inability to support a child due to age, joblessness, or extreme poverty. Compelling these women to endure pregnancies in such circumstances cannot be ethical nor should it be legal in a just society. Justice Alito’s opinion not only denies them their liberty but effectively casts them as characters in Margaret Atwood’s Handmaid’s Tale.    

 

An interesting facet of Justice Alito’s reasoning is its singular focus on some legal precedents to the exclusion of others or of any other perspective. He agrees with the Mississippi case that “the arbitrary viability line, which Casey termed Roe’s central rule, has not found much support among philosophers and ethicists who have attempted to justify a right to abortion.” The most obvious problem, according to Justice Alito, is that “medical advances and the availability of medical care have nothing to do with the characteristics of a fetus.” The only problem with this logic is that it misrepresents reality. For a large majority of Americans accept the fetus viability standard as both ethical and in concert with medical science. Only the strongly held religious beliefs of a minority believe otherwise. And that belief is protected by our Constitution. Consequently, nobody so believing can be forced to have an abortion against their will—even if their life is at stake. But Justice Alito would take away the rights of those who believe otherwise, even though philosophers, ethicians, ministers, scientists, and medical professionals support them—as did the precedents established in Roe and Casey. Given the disparity in opinions/beliefs on abortion, why does Justice Alito feel it necessary to rule in favor of anti-abortionists without regard for the opposing view which is shared by most Americans? He favors legal precedent from the 19th century over legal precedent of the 20th and 21st centuries. Is this a viable legal decision, or just a reflection of his own bias? If the devil can quote the bible (and he does, check out Mathew ch.4: v.5), then I suppose Justice Alito can quote whatever legal precedent suits his purpose, however inappropriate to the time or circumstances.  

 

 

Among Justice Alito’s Justifications for overruling Roe v. Wade—and all subsequent affirmations, including Casey—is his proposition that it is not workable. Specifically, he states, “continued adherence to Casey’s unworkable ‘undue burden’ test would undermine, not advance, the evenhanded, predictable, and consistent development of legal principles.” I wonder how he would reconcile this statement with the workability of denying prospective parents the medical service of invitro fertilization. Are there “unborn human beings” in lab test tubes or petri dishes waiting to find surrogate wombs? If so, what legal penalties will be necessary to punish egg/sperm donors, doctors, and lab technicians for the hideous crime of imprisoning humans in test tubes or worse, freezing them until surrogate wombs become available. Does Justice Alito have a workable solution for this legal and human conundrum his decision creates? I wonder what “evenhanded, predictable . . . legal principles” he would develop to deal with denying prospective parents the use of IVF technology. 

 

Justice Alito explains why he ignores precedent in overturning Roe. First, he sidesteps stare decisis: “adherence to principle is the norm but not an inexorable demand.” Then he rationalizes his justification for overturning what the Supreme Court had determined as a fundamental Constitutional right by referencing an opinion at variance with Roe, namely, Ferguson v. Skrupa, which supports his opinion that a “rational-basis review is the appropriate standard to apply when state abortion regulations undergo constitutional challenge. Given that procuring an abortion is not a fundamental constitutional right, it follows that the States may regulate and when such regulations are challenged under the Constitution, ‘courts do not substitute their social and economic beliefs for the judgment of legislative bodies’ (Ferguson v. Skrupa, 372 U.S. 726, 729-730P).” But these beliefs are as much a part of cultural history as the judgment of legislatures that can be and often are reversed in an ongoing evolution. Also note that the premise, namely, that “an abortion is not a fundamental constitutional right,” is self-justifying, that is, the premise justifies the conclusion without an argument. And Justice Alito adds “that (the Ferguson opinion) applies even when the laws at issue concern matters of great social significance and moral substance.” If I read this statement literally, Justice Alito just disqualified his own judgment as well as Roe and Casey in favor of duly legislated laws/regulations. Certainly, it is true that the courts do not legislate. As Oliver Wendell Holmes once said, “the power to redress that evil (the suppression of black voting) must be in the hands of the legislature and the executive.” ⁴ Justice Alito reiterates Holmes’ judgement by arguing that abortion of unviable fetuses cannot be a fundamental right unless it is made so by a law duly legislated. Well, Scott v. Sanford was overruled by the 13th Amendment. And Justice Alito seems to be inviting Congress to do likewise with his opinion which, I might add, has the force of law.  

 

So, what have we learned from Justice Alito’s opinion? He believes that the Roe v. Wade opinion was an overreach by the Supreme Court; that it should never have been codified as a fundamental Constitutional right grounded on “social and economic beliefs;” and that State legislators can and should determine how they regulate and/or abolish abortion in their respective States. Consequently, the Supreme Court erred in its Roe verdict by overriding the power of State legislatures. Given the limitations of the Supreme Court’s ability to make or enforce laws, Justice Alito’s opinion does have an historical justification. Despite his myopic legalese and torturous reasoning, his arguments decidedly fail on social and moral grounds, which he would argue is beyond the Court’s purview. His timing is regrettable, for his opinion is fifty years too late. I could have spared my analysis by simply quoting Tom Nichols, a contributing writer to The Atlantic, who wrote, “this is reasoning in a vacuum as if nothing happened over the course of 50 years.”  

 

The real problem here is that Americans do not accept Justice Alito’s opinion. As a result, trust in the Supreme Court has sunk to a new low. Why? I believe this Court is out of sync with America. And, to quote Oliver Wendell Holmes again, “I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law . . ..  I think the word liberty in the 14th amendment is perverted when it is held to prevent the natural outcome of a dominant opinion . . ..” In present day America, the dominant opinion is in support of Roe v. Wade. And a woman’s ability to decide on the “when, what, and how” of her pregnancy should not only be protected but supported as a natural right. If childbirth and progenerating humanity were not part of our unalienable rights, then nothing is. The problem, of course, is with a very vocal minority that believes abortion kills babies. When that belief is fortified by religion, there is no middle ground for any form of reasoned compromise. Belief can trump opinion, science, or even commonly accepted facts. Although the First Amendment guarantees the free exercise of religion, it prohibits Congress from establishing a religion. (For example, it can create religious holidays, but it cannot legislate church attendance.) Since we are a pluralist society, our differences are settled by a majority vote that each citizen must accept as the first rule of our democracy, as Holmes alludes in his “dominant opinion.”  

 

The Supreme Court has officially withdrawn itself from the abortion issue. State legislatures now have the authority to resurrect trigger laws from the 19th century or to legislate new laws that will regulate pregnancies and abortions differently from State to State. Given the divisiveness already inflicting America, this issue will continue to create animosity and even violence until we accept the first rule of our democracy. Most Americans appear to want Roe v. Wade codified into Federal law. Regardless of our personal beliefs, however, every American needs to vote his/her conscience. Given the state of our democracy and its governing majority, the only stakes higher than abortion rights are those of democracy itself. (Reference “Majority Pejoraty”) 

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¹ Alexander Hamilton, “The Federalist or The New Constitution,” The Easton Press, Number 78, p. 524. 

² Stephen Breyer, “The Authority of the Court and the Peril of Politics,” p. 1 (Preface)  

³ All the quotes attributed to the Supreme Court are taken from DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN’S HEALTH ORGANIZATION ET AL. and the Supreme Court decision No. 19-1392, The Opinion of the Court written and delivered on June 24, 2022, by Justice Alito. 

⁴ Breyer, Ibid., p.15.