• Sotomayor and End of Roe v. Wade

    December 20, 2021

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    Posted in: Democracy, Other Ideas


    I don’t know the right answer on abortion. I do know based on the oral arguments recently heard by the Supreme Court regarding Mississippi’s abortion law that our country has problems that cut deeper into our national fabric than the specifics of any abortion law.
    The out-of-the-box role the Founders had in mind for the Supreme Court, basically a check the other branches of government were consistent with the blueprint laid down in the Constitution, did not last long. Almost from the get-go the Court claimed additional authority for itself to strike down laws (Marbury v. Madison, 1803,) the doctrine of judicial review.
    In the years since the Court has used its power to wrestle with Americans over how their country should work. The Court once confirmed slavery (Dred Scott v. Sanford, 1857), later pulled a reluctant public by the ear away from segregation (Brown v. Board of Education, 1954 but only after it had earlier endorsed segregation in Plessy v. Ferguson, 1896 ) and trailed public opinion on same-sex marriage only to finally confirm it (Obergefell v. Hodges, 2015.) As for precedent mattering, the underlaying laws supporting slavery and marriage had been in place much longer than Roe‘s 48 years and in their time were more broadly supported.
    But whether leading public opinion or trailing it, the Court assumed a role unthought of by the Founders, one in the absence of common agreement and/or laws passed by Congress, to decide how Americans would live with one another. Should we be a slave-owning nation? Should our schools be segregated? Should same-sex partners be allowed to marry? In case after case the Court took it upon themselves to determine a solution to a social issue, seeing the need for a nation-wide answer to a contentious question once left to each state.
    And that leads us to abortion. Abortion exists at the raw edges of human existence. It is a religious issue, it is an issue intimately tied to liberal and conservative politics. It can decide elections. In cases of rape, incest, or the health of the mother, it is a moral issue. It is a states rights issue. It is women’s health issue and a societal burden issue. It is a socio-economic issue, with the population of women who seek abortions skewed by economics and race. It is healthcare or murder.
    The Court tried in 1973 to pry Americans from one another’s throats over abortion via Roe v. Wade. When the case was first heard, 30 states had complete bans on abortion. Sixteen states had full bans except for rape, incest or the mother’s health. Three states allowed most abortions, but only for residents. Only New York allowed abortions for out-of-state women, but capped them at 24 weeks unless the mother’s health was in danger.
    With Roe the Court took it upon itself to create a kind of compromise out of all that: during the first trimester a state cannot regulate abortion beyond requiring the procedure be performed by a licensed practitioner. During the second trimester a state can regulate abortion if the regulations are reasonably related to the health of the pregnant woman. And during the third trimester, the state’s interest in protecting the fetus outweighs the woman’s rights, so a state may prohibit abortions unless an abortion is necessary to save the life or health of the mother. Roe v. Wade did not legalize abortion per se. What it did was change the way states can regulate abortion.
    Roe also said abortion was a constitutional right, a claim which forms the basis for many who claim the case was wrongly decided. Critics acknowledge while the Court tried to do its best with an impossible problem, nowhere does the Constitution say anything close to abortion being a right, alongside say freedom of speech or due process. They argue the Court should never have essentially written via Roe the law Congress would not. The basis of the right to abortion seems to rest in the 14th Amendment, which otherwise is concerned with equal protection for freed slaves. This bastardization, which allowed the Court in 1973 to create an abortion policy for the entire nation without any democratic input, may prove the basis for Roe‘s undoing. Even one of the Court’s greatest liberal justices, Ruth Bader Ginsburg, knew Roe was bad law, writing “Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
    Roe‘s other shortcoming is in saying states could not outright ban abortions in the first 24 weeks of a pregnancy. The number was something of a compromise; Justice Harry Blackmun, the author of the majority opinion in Roe, once called the line arbitrary. The question of where to draw the line for abortion, at Roe‘s 24 weeks or Mississippi’s 15 weeks begs the question of why a line exists; aren’t the legal interests (aside from religious/moral ones) basically the same throughout a pregnancy?
    In subsequent cases, Planned Parenthood v. Casey, 1992 and Whole Woman’s Health v. Hellerstedt, 2016, the Court modified Roe in response to many states imposing laws trying to limit abortions by making the process too complicated, expensive or cumbersome. The Court said in the cases above “such laws could not impose an undue burden,” defined as one having “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
    For all that is unclear, three things are clear: 1) Roe always allowed for regulation; it was never abortion without restriction; 2) if the Court can reverse itself on the issues of slavery and segregation it can reverse itself on abortion, and 3) almost no one thinks Roe forever settled the issue of abortion in America. America will ask, and answer, the question anew.
    The current vehicle for asking and answering is Dobbs v. Jackson Women’s Health Organization, which concerns a 2018 Mississippi law banning almost all abortions after 15 weeks. Its version of regulation is a direct challenge to Roe‘s (Texas’ latest attempt to restrict abortion, SB8, will be heard separately.) The Court heard oral arguments on Dobbs in late November. A decision will be announced in 3-6 months, and will likely have more affect on the midterm elections than any other factor.
    The Court can decide to keep Roe as it is and tell Mississippi to get with the program, it can accept Mississippi’s version (i.e., no abortion after 15 weeks) and upend Roe, or it could ignore Mississippi’s version and re-write Roe to create new rules for each trimester. Any of the three would be consistent with the way the Court has acted for some 220 years.
    What is troubling are some of the statements made during oral arguments by the so-called liberal judges, particularly Justice Sotomayor. Sotomayor went as far as to question whether the legitimacy of the Court itself would endure if it overturned abortion rights. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” She accused Mississippi of moving forward with abortion restrictions only “because we have new justices,” referring to the three Trump appointees, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. “If people actually believe that it’s all political, how will we survive?” Sotomayor continued.
    The other liberal justices, Stephen Breyer and Elena Kagan, were equally vehement in their support for abortion as a constitutional right. Alongside Sotomayor, they continually claimed that Roe was “settled law” and was thus somehow above being re-examined. It was left for Justice Kavanaugh to point out to any first year law students in attendance the long line of celebrated cases in which the Supreme Court overruled precedents. If the court had adhered to stare decisis in those cases, he says, “the country would be a much different place” (to include segregation and slavery.) Kavanaugh finished his lecture by noting every current member of the Court has voted to overrule constitutional precedents in various past cases.
    I don’t know the right answer on abortion. Since Congress has steadfastly refused for decades to legislate on the issue, the Court has been left to glean the boundaries among religion, public policy, and individual rights. The compromises and weaknesses in Roe are because of what Congress has avoided doing. Any decisions the Court has made in the past, and the decision they will make in the instant case, will be imperfect. But that’s only the beginning.
    The deeper problem is the Court has taken such an overtly political, partisan turn. Sotomayor in particular embarrasses herself with a fan-fiction quality take on settled law, and her claim that a decision which does not fit her political beliefs will destroy the legitimacy of the Court. She believes in precedent when she agrees with it and does not believe in it when that suits her better. She has suggested the last president’s appointments to the Court are somehow wrong because their mere presence allows Mississippi to challenge Roe. Americans have been trained to claim anytime a court decision or an election goes against their personal preference that means the system is unfair. Shame on Sotomayor for fanning those flames by suggesting her fellow judges are biased and she alone is not.
    Sotomayor is a zealot who sees politics above justice. In that sense it is unclear Sotomayor actually understands how the Supreme Court works. If Roe falls, its supporters may wish to re-examine their champion’s role in so poorly defending it.


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  • Recent Comments

    • Rich Bauer said...


      You really don’t know the right answer on abortion? Dude, what happened to the Repugs “my body, my choice?” Seems the Repugs are zealots when it comes to restricting our freedoms.

      12/20/21 9:15 PM | Comment Link

    • Rich Bauer said...


      Of course FOX News doesn’t believe in vaccination freedoms:

      ALL employees located in the network’s New York City offices will now be required to have at least one vaccination shot by Dec. 27 if they want to work in the office, according to an internal memo sent to the company’s staffers.

      “All workers in NYC who perform in-person work at an office location, including Fox employees, must show proof of receiving at least one dose of a COVID-19 vaccine,” the Fox Corp. memo

      12/20/21 9:42 PM | Comment Link

    • Rich Bauer said...


      Pfizer stockholder Margery Greene has tweeted anti-vaccine misinformation multiple times, sharing unsubstantiated stories that thousands of people have died after being inoculated against Covid-19 while specifically railing against the Pfizer vaccine, claiming that “Many people’s personal testimonies are saying they are still getting sick with covid and vaccinated people are spreading it. It should NOT be approved or mandated”.

      Apparently she doesn’t know the right answer either.

      12/21/21 4:42 AM | Comment Link

    • Rich Bauer said...


      Repugs have developed their very own birth control: getting Covid affects sperm.

      12/21/21 6:53 AM | Comment Link

    • John Poole said...


      To supreme court Sotomayor: Most of us already know the “Court” is purely a political beast. We’ve already learned to survive that rueful fact. Oh, and you’ll also be fine with your for-life appointment which of course wasn’t political at all-right?

      12/21/21 9:47 AM | Comment Link

    • Rich Bauer said...


      U.S. Libertarian Party national political platform states, “Recognizing that abortion is a sensitive issue and that people can hold good-faith views on all sides, we believe that government should be kept out of the matter, leaving the question to each person for their conscientious consideration.”

      For the Repug faithful who have so little faith in their government, why would they give it control over such a personal issue in their lives?

      12/21/21 11:08 AM | Comment Link

    • Rich Bauer said...


      And if you think the Repugs are going to stop attacking your personal freedom, go read the American CON-servitude. They gots lots of religious ideas they want US all to obey.

      12/25/21 12:58 PM | Comment Link

    • Rich Bauer said...


      Reading AMCON one would think it is an exercise in gaslighting US into believing White is black. But it really is a daily reminder that WHITE IS WHITE and blacks are black, and don’t you forget it.

      From the Book of Dreher: I finished the final edits for Live Not By Lies just as Covid was dawning. In the book, I write about how soft totalitarianism is coming upon us in the guise of both compassion and safety. For example, some progressive New York Times staffers protested that running an op-ed by Sen. Tom Cotton advocating for something that 50 percent of Americans believe in must not be allowed to happen, because it would pub BIPOC Times staffers in danger. This absurdity actually worked. James Bennet lost his job over it. Similarly, our schools must become centers for disseminating transgender propaganda, because if not, PEOPLE WILL DIE!

      The truth he should be telling is “dead lies matter”. The Repugs are responsible for the biggest dead lies as 99 percent of the idiots dying today of Covid refused LIFESAVINGTRUMP vaccines. Their death certificates should not list Covid as cause of death. It should list SUICIDE.

      12/25/21 1:07 PM | Comment Link

    • John Poole said...


      Bauer: Let’s lower our blood pressure and accept this spin on an old saying: “It’s not what some Americans don’t know that messes up the rest -it’s what they do know for certain that just ain’t so.”

      12/26/21 10:28 AM | Comment Link

    • Rich Bauer said...


      Wave Goodbye

      The fourth CV19 wave omicron variant is only 11% less lethal to the unvaxxed than Delta, but 20 times as contagious. Repugs unvaxxed who thought monoclonal antibodies would save them, listen up:

      Two of the three monoclonal antibody treatments that doctors have depended on to keep Covid-19 patients from becoming seriously ill do not appear to thwart the latest version of the coronavirus.

      12/26/21 3:31 PM | Comment Link

    • Rich Bauer said...


      While a bunch of old white guys seek control over young women’s bodies, perhaps the answer is more men should take control over their own bodies and just get a vasectomy.

      12/28/21 4:14 PM | Comment Link

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