Flunking the Supreme Court

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So much has already been said or written about the U.S. Supreme Court’s Dobbs decision that I hesitated to write a column about it.

For those that don’t closely follow the court and its logic, their decision was that the U.S. Constitution does not guarantee a right to abortion.  They also overturned the 1973 Roe v. Wade decision that said women do have a constitutional right to abortion.

The morality of abortion is not up to the Supreme Court. Morality is about the choices each person makes every day, guided by their faith and answerable to God. The court clarifies how the Constitution protects personal liberty from government. 

Their decision, in essence, is a government decree that every woman at the moment of conception must be a human incubator for the next nine months, and then provide total support to another being for the next 20 years.

The court majority argument had two main points.  The first was that the Constitution does not specifically say there is a right to abortion. We are a nation that fought a bloody revolution for personal liberty as stated in our Declaration of Independence, with a Bill of Rights to further emphasize personal liberty, including the Ninth Amendment stating that failure to note a personal liberty doesn’t mean we don’t have it.  

Any logical conclusion about our Constitution, based on this long history, would be that people get to live their lives as they wish unless an overwhelming compelling argument can be made for government interference.  Yet this court of so-called constitutional experts couldn’t find a basis in the Constitution to let women make personal decisions about their own bodies just because it doesn’t explicitly mention it.

The second point was that abortion rights are not deeply rooted in our history.  Any honest examination of our history would’ve easily found that women had safe access to abortion into the 1800s. Abortions were only banned after “quickening,” which meant the mother could feel her baby kick. Also rooted in our history is that we burned and drowned witches. Let’s hope this court’s historical root analysis doesn’t conclude the Salem witch trials were good law. Women in the most primitive cultures knew of herbs to end pregnancies.  

The history of abortion, in fact, is as old as the history of man – including the moment the Pilgrims landed on Plymouth Rock.

Even more bothersome to me were two comments by majority justices. One was Justice Alito’s criticism that the Roe decision was wrong because it had damaging consequences. Does he not think that removing a liberty half of U.S. citizens have had for 49 years is not going to have damaging consequences?  

The other comment, from Justice Kavanaugh, was that the court’s decisions cannot be influenced by the public’s reaction.  This arrogantly ignores the reality that the reaction is based on the practical application of their decisions in people’s very real lives.

How real? Here are some situations that can and do occur in Monroe County:

Your 14-year-old daughter sneaks away to her first ever high school party.  She drinks. The football captain pays attention to her.  She desperately wants to be popular and accepted and cool, so she has sex with him. Perhaps Justice Kavanaugh can be the one to explain to her what the law now requires of her for the next 20 years because she is pregnant.

Your oldest daughter excitedly goes off to college and attends her first frat party. She is drugged and raped. She comes home, humiliated and depressed and struggling to resume any kind of life. And she finds out she is pregnant.

A divorced woman finds a second husband, who provides needed economical stability to the home and seems like an attentive father to her children. She talks herself out of the little signs that he is too affectionate to her daughter. Her daughter becomes pregnant from incest rape and knows she cannot ask even her mother for help.

A happily married couple with three wonderful children are blessed with a late pregnancy. The doctor informs them the pregnancy is a grave risk to the mother. Perhaps Justice Kavanaugh should be the one who tells the woman she will die, tell the man he will be a widower, and tell the children they will no longer have their mother.

The development of law is too easily a closed exercise among an elite few. They attend elite law schools, join legal societies, sponsor each other to judgeships, and debate abstract arguments, twisting words to make illogical conclusions, insulated from real world consequences, convincing themselves only they know what’s best.  

I’d suggest it is critically important for the justices to be in tune with how their decisions will work for the people they serve. To believe otherwise is sheer arrogance.

The Supreme Court provides a “majority opinion” that details the legal argument for its decision. A poor argument exposes a majority that has compromised its legal leadership and clarity for political ideology. A solid argument is the only thing that separates justices from politicians. 

An argument that the Constitution doesn’t broadly protect personal liberty would get an “F” in any first-year law class. And historical research that can’t find past legal abortion would get an “F” in a freshman history class.  

The objectivity of history will see this court as our worst since before the Civil War. 

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