Dobbs v. Jackson… Oh My..

DOBBS v. JACKSON WOMEN’S HEALTH | 1st Thoughts
 
My very 1st thought upon reading the SCOTUS opinion in Dobbs v. Jackson Women’s Health is this: Is the author of this decision one of the brightest legal minds America can produce? If so, we are worse off than I feared.

In the written opinion, Justice Alito tries to justify breaking with stare decisis by citing Brown v. Board of Ed., and a prior court’s overturning of the “bad” decision in Plessy v. Ferguson, as if he’s all about equality and how wrong Plessy’s logic was. I’d bet that, if he had been on the court when Brown v. Board of Ed. was decided, Judge Alito would have dissented against that decision. It’s his opinion, now though, that when a previous ruling was decided “erroneously”, then it’s okay to wipe it off the books, arbitrarily. Although, he doesn’t mention why, if Roe is so erroneous, no other Supreme Court Justice in the last 50+ years has found it so. And since the Roe v Wade ruling (and Casey v Planned Parenthood) is also, “egregiously wrong”, he, erudite historian, masterful law reader, champion of equal justice and corrector of past mistakes, must make it right. It has nothing at all to do with his personal religious beliefs.
 
He makes up a new rule, in essence, that there is no Constitutional justification for a right to abortion, and therefore, the court has no authority to make rules about the issue and must allow the states to each decide for themselves. So, he makes a new rule from the bench to override an older rule from the bench, neither of which the Court had proper authority to make. 
 
It is true that abortion is not mentioned in the Constitution. It is also true that the Constitution does not declare that corporations have all the same rights as individual human citizens do, but that didn’t stop Mr. Alito from upholding those judge-invented rights in Citizen’s United v. FEC. The Constitution does not state that for-profit corporations have religious rights that exempt them from obeying federal laws, as the opinion he agreed with claims, in Burwell v. Hobby Lobby. 
 
Or, for that matter, the Constitution does not clearly state that the Supreme Court has authority to modify, diminish or abolish all or parts of laws enacted by Congress, as the court did in Shelby County v. Holder, to which Mr. Alito also joined. In 1803, Chief Justice Marshall granted that extra “judicial power” to himself and the court in a decision he authored, for the case of Marbury v. Madison, 16 years after the Constitution was written. 
 
If the decision to allow or not allow abortions belongs with the people, why does that necessarily mean it can only by regulated by the states? The court has upheld the federal government’s authority to regulate any number of issues belonging to “the people”. On the same day as this decision was released, in the case of New York Rifle & Pistol v. Bruen, the Supreme Court decided it, alone, has the power to decide about gun rights, and therefore, states do not have the authority to regulate the use of concealed firearms in their state. A ruling to which Alito voted in concurrence. 
 
He discusses the correctness of overturning Plessy v. Ferguson. As I recall, Brown v. Board of Ed. overturned Plessy, because the individual states had proven to be incapable of providing truly “equal” education to all their students in separate facilities, and the federal government was required to step in, protect minority citizens and enforce the laws fairly. Time and again, the states have proven to be unreliable in providing fair and equitable treatment and protecting the rights of all their citizens. That is why The Voting Rights Act was passed in 1965 and reauthorized by four additional Congresses. Even after the 14th, 15th & 24th Amendments mandated that states allow black Americans to vote, the states continued to make voting difficult for minorities. 
 
Throughout this opinion, Alito avoids mentioning the core, underlying motive behind his decision; namely, his religious belief that a fertilized egg in a woman’s womb is a sacred human life and God mandates that to take human life is a sin, therefore, removing that egg is akin to murder. And, those little zygote persons must be protected, from the very human being whose placenta it is attached to, by an out-of-control government he often denigrates, but which pays his salary and of which, he is a key functionary. [In this same term, he voted to limit the EPA’s power to protect citizen’s health from environmental pollution.] He, apparently, further believes it is the Supreme Court’s responsibility to defend the rights of that embryonic human form, but not the Supreme Court’s responsibility to protect the rights of the human carrying that embryo, to make crucial medical decisions concerning her own life, mental health and physical well-being. 
 
Alito never openly claims that it is the Judeo/Christian God’s commandment against killing that is at the root of his opinion. Or, the Judeo/Christian belief that human beings have something called a “soul”. But his chain of reasoning, as I outlined, only stands if the first statements in the equation are true, and, those are religiously derived beliefs, which are not based on empirically provable evidence. So, Alito is making secular legal decisions based on his personal opinions about God’s law. The duplicitous outcome of this type of circular reasoning, is that religious laws take precedence over the Constitution, which Alito swore an oath to defend as the “supreme law of the land”. 
 
Here’s another twist: as a Supreme Court Justice, Alito is in position under the Constitution to interpret what that Constitution means. The 1st amendment says “Congress shall make no law respecting an establishment of religion…” It does not say that the Supreme Court can make laws from the bench, but they do all the time. By overturning previous court decisions, Alito is altering the “supreme law of the land” to conform to a religious belief. The Supreme Court amends the Constitution without the Congress or the people’s consent, and those alterations then become the latest “supreme law”. What a dysfunctional system. Law has nothing to do with justice. As Jefferson noted early on : 
 
“…In denying the right they [the Supreme Court] usurp of exclusively explaining the Constitution, …If this opinion be sound, then indeed is our Constitution a complete felo de se. For intending to establish three departments, co-ordinate and independent, that they might check and balance one another, it has given according to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. …
…The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please…
–– Thomas Jefferson to Spencer Roane. vii, 134-Ford ed., x, 140.  (P.F., 1819)
 
The ultimate extension of this ruling in Dobbs, based on that unspoken, religious belief is that society at large, has the right to compel a woman to carry her fertilized egg until it gestates fully and is born. [As I recall, the Third Reich initiated a program not too dissimilar to such a belief in governmental powers over reproduction. It was called “leibensbourn” or some such, where women were recruited by the government to bear the children of SS officers to increase the Aryan population and keep the race pure.] 
 
There is a convoluted logic to these beliefs, in that, it cannot be empirically proven when human consciousness begins. If it begins at “conception”, or at the instant the sperm fertilizes the egg, why not go even further back, and make it illegal to wear a condom or ejaculate outside the vagina? Or, slough off eggs during the menstrual cycle? A “potential life” has been destroyed, hasn’t it? In other words, if it is in society’s compelling interest to make women have babies, what is the ultimate limit of that interest? Why does the “pro-life” movement not want to also decide how sperm is destroyed? Shouldn’t male masturbation or ejaculation outside a woman’s womb also be illegal? Or, in Old Testament terms:
LEVITICUS   15:16 And if any man’s seed of copulation go out from him, then he shall wash all his flesh in water, and be unclean until the even.15:17 And every garment, and every skin, whereon is the seed of copulation, shall be washed with water, and be unclean until the even.15:18 The woman also with whom man shall lie with seed of copulation, they shall both bathe themselves in water, and be unclean until the even.
On the other hand, if “humanity” does not begin at fertilization of the egg, when does it begin? Sometime during fetal development? At “quickening”? At birth from the womb? This is all tied up with the religiously based conception of the human “soul”, an idea that has no empirically verifiable condition. It can’t be touched or seen, it has no weight or mass, it can not be examined or medically tested. Opinions differ if “soul” is unique to humans or if all living being have such a property, etc. Or, if “soul” is eternal or newly born, can be reincarnated, is separate from “spirit”, etc. And yet, anti-abortion proponents treat it as a known quantity that must be safeguarded at all costs. And they are certain all humans have one and when it begins and that it is a mortal sin to destroy it.  
 
Alito in this decision, mentions the legal cliché, but doesn’t analyze the aspects of the, so-called, “state’s interest” in banning abortions. [“state’s interest” is another made up legal phrase which can mean virtually anything] The reason he skims over that is because the state, as a secular, public, administrative organization, has no expedient, compelling interest in prohibiting women from aborting their pregnancies. What? We need more people in our state? We require more waste in our sewers? The street department needs more cars on the road? We can’t survive as a state unless women have every baby possible? It will encourage other women to commit murder? If states did actually have such a compelling interest, wouldn’t it seem logical that they would also, then, have laws incentivizing pregnancy and guaranteeing those children they forced to be “born” were well cared for after being born?  But there is no such clamoring from religious groups for the state to feed and cloth and protect children born to those mothers who wanted an abortion but were denied by state law. 
 
Conversely, with world population right at 8 billion people, wouldn’t it be in society’s interest to encourage fewer human births? Beyond that, is the cost to the “state” of caring for unwanted children. If women are forced to carry fetuses to term and deliver them against their will, will they then be good providers and caretakers for those children? Is society willing to pay the cost of raising children that would not have existed if abortions were legal? If government can mandate one half of the equation, the “unborn” life; doesn’t that government have an obligation to take responsibility for the outcome of that mandate, the “born” life? 
 
It is only if one first believes that human life is sacred and that that “sacred” life begins the instant a spermatozoa and ovule combine inside a woman’s uterus, or immediately thereafter, that one can believe abortion is a private, medical procedure that society has a right to outlaw, without exception. The only other personal, medical procedure that attains similar legal exception is assisted suicide, another religious based prohibition. Both of which, in practice, are outside the concern of general society or any public individuals, besides those directly involved in the medical procedure. Without religious pronouncements, what “compelling interest” does society have in regard to either abortion or suicide? How is the public welfare harmed by either? 
 
So, Alito refuses to address his real reason for banning abortions: his religious beliefs. Whether at the Federal, state or local level, secular governing authorities have no actual reason to disallow the abortion procedure. It is as safe, medically, as many other common operations. It has zero impact on the general welfare. It is a private matter involving, at most, a man and a woman or a girl and her parents. It is quite often only the woman’s decision. No one but she has to live with the outcome of that decision. She alone, must bear and nurture the fetus in her womb and experience the pain of delivery and providing for the child, once born. 
 
Only when special interest groups, motivated by their religious beliefs, take it upon themselves to force the rest of society to behave as they demand, does abortion become a criminal act. The medical procedure has been performed safely for decades, (if not centuries). But abortion opponents are not primarily concerned with the mother’s safety, only the protection of an embryo she carries inside. They claim, the beliefs of their religious sect must be obeyed by all of society. 
 
Therefore, laws banning abortion, being predicated on religious beliefs, are Unconstitutional because “…laws respecting an establishment of religion, or prohibiting the free exercise thereof…” are illegal under the 1st Amendment. There is no other compelling medical or secular justification for banning abortion. Secular society does not oppose taking the life of criminals. Secular society sanctions war, which by its nature involves killing other humans. If life is so sacred, cigarettes and automobiles should also be banned. The motives may be camouflaged behind emotional phrases like, “pro-life”, “baby killer”, “innocent human life”, “life of the unborn”, “defenseless child”, etc., but beliefs founded on religious doctrine, that a fertilized egg, an undeveloped embryo, is sacred in God’s eyes, are the only justification when laws banning abortion are enacted by the states. All the legal verbiage in the world does not change that basic, unspoken truth. 
 
As a native born, American citizen who does not believe in Christianity, I am offended that the Supreme Court thinks it can compel me, or those like me, to conform to the religious beliefs of a faith I don’t share. Christians may “believe” that a microscopic zygote qualifies as a human being. And, their “God” commands them to stop any woman from destroying that embryo. Well and good for them… But I don’t. And, I am an equal member of this society. I should not be forced to obey commands of their “God” against my free will. All laws banning abortion are ultimately based on religious beliefs. Therefore under the 1st Amendment to the United States Constitution, the right to an abortion can not be denied, because any laws prohibiting abortions are laws “respecting… religion” and they infringe on my religious freedoms. Therefore, all abortion bans are illegal.
 
The decision in Dobbs v. Jackson Women’s Health should be rescinded.
 
El Supremo, July, 2022