This weekend, while all of you were torpedoing beers on the beach and playing nekid twister at night, I was busy reading and analyzing the 213 page Dobbs v. Jackson case. I did this for you, so you could be better informed about the Supreme Court’s case that “overturned” Roe v. Wade. Because of me, you will be more knowledgeable than 99.9% of the American public. You’re welcome. As you are reading this I am sure you are thinking, “how do I show my appreciation to that wise sage and eminent scholar Rob Smith?” Simple. Send money.
The debate over Roe v. Wade is and always has been about the sanctity of our constitutional structure and the dangers to liberty when Courts make bad law by arrogating authority they do not have to themselves. This is a dangerous practice. The 1973 Roe case corrupted our constitutional footings. There is a natural tendency for jurists to think they are wise “Solomons” and anointed by the Almighty to deliver their wisdom via judicial edict. This hubris undermines the balance of powers and our liberties. The Constitution is the foundation upon which all our institutions and our laws lay. Sound constitutional analysis requires that each brick laid on top of that foundation be set carefully and with the proper mortar. In Roe, the Supreme Court acted as a super legislative body. Laws are made by legislatures and not judicial edict. If the Court has the power to make law out of whole cloth, then the whole structure of our democratic republic crumbles. Each additional brick after Roe is built on a corrupted structure as case law emanating out of Roe are bricks without straw and laid without mortar.
The Court committed larceny in 1973. It stole powers from other branches of government and now the Court has confessed its crime and is giving these powers back. It is much like the Louvre knowingly acquiring a famous but stolen painting. Now the Louvre is giving it back to its rightful owner.
There is and always has been a distinction between constitutional law and the practical result that adherence to constitutional principles may cause in particular circumstances. Many of the uninformed think the Court in Dobbs outlawed abortion. It did nothing of the sort. It merely did a mea culpa and gave the painting back to its rightful owner, the state legislatures. For years I have cussed the media for how it reports Supreme Court findings. The media leads the public to believe the Court’s duty is to make policy decisions and utterly ignores the legal reasoning underpinning all of its opinions.
One can be an advocate for unrestricted abortion and still acknowledge that Roe was wrongly decided and should be overturned. It is a maxim in jurisprudence that hard cases make bad law. Roe was an exercise in raw judicial power for political purposes and not based on any elements of fact, law or historical precedent. The shockingly shoddy scholarship was widely criticized by members of the Right and Left in 1973.
I love the law and the benefits that the rule of law bestows on not only the democratic process, but on societal order, property rights and the sanctity of contracts. Few people know that much of Roe had already been overturned by the 1992 Casey opinion, where all the legal reasoning behind Roe was completely gutted. Both pro and con sides have always agreed that there is no express right to an abortion in the Constitution. Casey's new standard rested on substantive due process claims under the 14th Amendment. Substantive due process is a controversial doctrine where federal judges try and find rights not found in the Constitution by interpreting the 14th Amendment’s use of the word “liberty.” [No state] shall… “deprive any person of life, liberty, or property, without due process of law.” A body of case law has arisen where judges create federal “rights” if such rights existed and were near universally enjoyed at the time of the adoption of the 14th Amendment. In Dobbs, the Court did not overturn the use of substantive due process, but it did demolish the idea that abortion was a “liberty” enjoyed by citizens at the time of the 14th Amendment’s ratification. The Court reviewed nearly 1,000 years of common law prohibitions against abortions. These laws were later codified by various state statutes beginning in the 19th century, and of course just prior to the Roe decision, virtually every state banned abortion. Thus, it was absurd for the prior Court in Casey to recognize a federal right to abortion based on the 14th Amendment.
Other elements of the decision I found fascinating, but not dispositive on the outcome. One was the common law’s disdain for abortion after “quickening,” an ancient term that describes the time when a baby first moves in the womb. Interestingly, the Mississippi law under review allows abortion up near the time that quickening generally occurs. As one who has read a good bit of Anglo-Norman history, I was also surprised that during times of incredible warfare and brutality, the common law used terms such as “barbaric” to describe abortion. I also learned that the Mississippi law is virtually the same as all the anti-abortion laws of our European allies. Indeed, besides the United States, there are only 6 other countries in the world that allow non-therapeutic or elective abortion on demand after the 20th week of gestation. Two of these 6 countries are North Korea and China.
In Justice Thomas’s concurring opinion he tackles the notion of “substantive due process,” and sees it as another cancer undermining the Constitution. Indeed, I agree with him as this is just another tool for judges to create law out of whole cloth by pretending to find rights that do not exist. I applaud Justice Thomas’ honesty and for having the gonads to state the obvious. Many commentators have expressed alarm at Justice Thomas’s view as this would return the Griswold (contraceptives), Lawrence (consensual sexual acts) and Obergefell (gay marriage) cases to the states. The Courts usurped the rights of citizens to make these decisions for themselves. It is inevitable that unless this abuse ends, the Court will end up telling you what toothpaste to use and what to name your children.
One should judge constitutional law not for the “outcome” of a particular case, but the reasoning leading to the outcome and whether such reasoning strengthens our democratic institutions and thus prolongs the life of the Republic. One must not live in the moment and must recognize that when the Court steals authority, the danger far exceeds the happiness one might feel from a particular result.
There will always be abortions and there will always be people who view abortion as a barbaric act and the killing of a human being. There will never be a perfect solution, but citizens need the right to lobby their state legislatures and have a role in the deliberative process and this is done through legislation. Only the legislature can issue laws and regulations. My guess is in 5 years, abortion will be less of a hot button because those passionate about the issue will have had an opportunity to craft the laws that apply to them and their neighbors.
Although those disappointed in Dobbs may not like the result, the Court has done you a favor. Its reasoning makes it less likely that your rights will be arrogated to a far away, unelected, detached panel of political sophists. It is more likely now and in the future that you can have a voice in your own affairs through your elected representatives. Rather than grabbing authority, the Court limited its authority. Something rarely done in the annals of mankind.
Notice that I have not expressed my thoughts on abortion. My policy thoughts are totally segregated from my legal analysis. It is dangerous to abuse the Constitution and steal authority from the state legislatures merely for immediate gratification on one policy issue. The proper role of courts is to interpret and preserve the law, not to make law. A sober analysis of the law requires maturity and purpose and the ability to see past the present for the benefit of the future.
If one is angry over this decision, I suggest you direct your ire at the 1973 Court. They are the ones who stole the painting. The 2022 Court merely gave it back to its rightful owner.
