U.S Supreme Court Decisions Based on Feelings, NOT the Law
America
Welcome to America. The gun totin’ capital of the world.
Last week’s news: the Highland Park, Illinois Fourth of July Parade Massacre. 7 innocent souls murdered, and 39 others injured. To be clear, the word ‘injury,’ should not be confused with a ‘bruised knee.’ One of the shooting victims, an 8 year old child, sustained life threatening injuries; the bullet that tore through his small body severed his spine. He is now paralyzed from the waist down.
A Fourth of July Celebration is typically celebrated with friends, family, parades, hot dogs, ice cream and fireworks. NOT Military grade weapons used to fire upon human beings in tee shirts and shorts on a warm summer day who are merely spectators sitting on lawn chairs waiving U.S. flags and children blowing bubbles along the parade route.
I am disgusted. And how do you feel?
More importantly, do you wonder how the Supreme Court Conservative Justices feel? Oh, wait a gosh darn minute! They ruled it is totally okay to walk around the United States of America with a gun. Any gun.
What contrived constitutional excuse will they come up with to justify another mass shooting?
The Founding Fathers who wrote the U.S. Constitution, are literally rolling over in their graves as to how the Justices have twisted the meaning of the Second Amendment’s ‘Right to Bear Arms.’
At this point, any law abiding citizen must wonder…Do the Justices even have feelings? Do they care about the catastrophic impact their rulings are having on today’s society? Oh yes they do!
Based on their recent rulings, the Justices feel:
1. A woman has no rights.
2. A woman has no rights, because these Justices took away the right for women to make personal decisions over HER own body.
3. The Justices feel human life is sacrosanct. Therefore, abortion is illegal.
4. The Justices feel that law abiding citizens can carry guns outside of the home, anywhere in the United States to protect themselves.
5. The Justices feel that human life of a gun owner is sacrosanct. Therefore, a law abiding citizen can carry a gun, and can use that gun to shoot and to kill another human being if that gun totin’ person feels threatened.
6. Do not quibble over the words ‘feel threatened;’ if a person feels threatened, that person can and will protect themselves. The Court essentially gave the green light to shoot to kill. Hey, I did not write that decision, the Conservative Justices handed that decision down last week.
I have a few questions for the Conservative Justices:
1. What is the definition of a Law Abiding Citizen as per the US Supreme Court today?
2. Who is afforded the rights of a Law Abiding Citizen? Any person?
3. Is a person who lawfully obtains a gun a Law Abiding Citizen?
4. Is a person who lawfully obtains a gun, and then intentionally shoots at other law abiding citizens watching a parade, a Law Abiding Citizen?
5. Is a fetus a Law Abiding Citizen?
6. Is a Woman a Law Abiding Citizen?
7. Is a Child a Law Abiding Citizen?
8. Is a ten year old girl who is raped considered by the Court to be a Law Abiding Citizen?
9. How does the Court define ‘Human Life’?
10. Are Justices, who went to Law School, not Medical School, qualified to determine when Human Life Begins?
11. What value do the Justices place on a Human Life?
12. Is the term ‘Human Life’ only applicable to a fetus?
13. Is the term ‘Human Life’ applicable to victims of gun violence?
14. Is the term ‘Human Life’ applicable to white, brown, purple human beings, women and girls?
15. Last week, a 10 year old rape victim was 6 weeks pregnant and was denied the right to an abortion. What value does the Court place on that victim’s human life?
16. The Justices are not Physicians, not Scientists. Nor are they Clergy, although the Conservative Justices on the Court seem to be preaching religion. They strive to espouse virtuous morals…yet is it moral to force a 10 year old child who is a rape victim to give birth to the evidence of the crime committed upon her?
17. Does the Court ascribe Rights to victims of gun violence?
18. Does the Court only ascribe Rights to Gun Owners?
19. Is the Right to Bear Arms greater than the rights of a victim of gun violence?
Hypothetical: What if a pregnant Woman who lives in Texas, a verified Law Abiding Citizen, walked into a Doctor’s office totin’ an AR 15, and demanded an abortion? She allegedly was protecting herself from the pregnancy, because she could die if she carried full term. Can this Woman assert her 2nd Amendment Right to Protect Her Own Body?
Reality: Why do gun owners have more control over their guns, than women have over their own bodies?
Oy vey! I need to take a break from writing about the recent Supreme Court Decisions that have literally been shitted out by the Conservative Justices.
These Justices are not enacting laws. They are re-writing the U.S. Constitution to reflect the edicts of their Messiah, whoever that may be.
It is clear that these Conservative Justices are all suffering from amnesia; they have forgotten their oath of office, and their responsibility to adhere to the legal principles of Stare Decisis and Precedent.
Time to Switch Gears
And now, a break… Let us switch gears for a moment and talk about our favorite Former Mayor of New York City, Rudy Giuliani.
Rudy, Rudy, Rudy. My oh my. What has become of Rudy?
The Back Tap!
I needed a little laughter this week and thank you Rudy for entertaining us all.
As the story goes, which was caught on video, Rudy was campaigning in Staten Island, New York for his son Andrew, who was running for Governor of New York State in the Republican Primary. Andrew did not win the Primary; thank you Lord, something went right this week.
As I was saying… Rudy was campaigning for his son in a supermarket, whereupon a grocery store employee allegedly ‘tapped’ Rudy on the back. Now, I say ‘tapped,’ because that is what it looked like to a reasonable person watching the video that captured this interaction.
So, I was watching the news and Rudy was interviewed to give his ‘side of the story.’ First, I would like to address Rudy’s demeanor. Rudy was very calm, not erratic, totally muted. By the by, this is not Rudy’s public persona. Clearly, it was as though he were acting, trying to play the role of a feeble old man. In fact, his hair was not dyed brown… no, there was no brown shoe polish running down the side of his face which he previously sported as some new ‘fashion statement’ when he held a press conference several months ago in front of the Four Seasons landscaping company that just happened to be adjacent to a sex shop. Not to ramble on, but, how convenient to shop at the sex shop once the press conference was over.
Rather, for the ‘back tap’ interview, the three remaining strands of hair left on his shiny bald crown, were gray.
According to Rudy, “I got hit on the back, as if some boulder hit me.” He didn’t stop there… Rudy said, “if I wasn’t in better shape, I was lucky he did not knock me down, and hit my skull, and die… or got a concussion or got seriously injured.” Oh wait, there is more. He even implied to the NY Times ‘it’s a miracle I am able to still walk.’ Oh my goodness! What other injuries could this ambulance chaser have concocted?
Hallelujah for Miracles Rudy! He survived the back tap!
If I may, Ladies and Gentlemen of the jury, Rudy made that statement on a television interview. To be clear, if a boulder hit Rudy, yes, it is possible he could have been ‘knocked down.’ But I hate to speculate. I would need to know what kind of boulder; size; weight. If we follow the boulder scenario, would the setting of this incident still be a supermarket in Staten Island? I just don’t know.
I don’t ever recall seeing a boulder in a supermarket. Are we talking about a boulder hitting you in Boulder, Colorado? Would this have occurred outdoors while Rudy would be hiking? Would he be wearing hiking boots? Does Rudy even hike on a trail where there are boulders? Just wonderin.’
Oh, maybe Rudy is using the ‘boulder’ as a metaphor… that the tap on his back by the grocery store employee should be equated to a boulder falling on you? I don’t know. This seems to be a farfetched legal theory. Right?
Let’s not forget that Rudy’s license to practice law is suspended in New York State. Question: Why is he not disbarred? Just wonderin.’
It is quite possible, if a boulder hit him, and it caused him to be knocked down and hit is skull, would he have sustained serious injury? We would need an expert opinion to determine whether there was anything in his skull that could have sustained any damage.
Note, in some jurisdictions, you take your victim as he comes. In this situation, if an expert deemed Rudy to be damaged goods prior to this incident, and the boulder that knocked him down caused him to hit his skull, die, get a concussion or got seriously injured, well, there just might be liability.
Then there is that but…
Ladies and Gentlemen of the Jury, we must determine whether Rudy also played a role in this incident. One must ask, ‘did he provoke the grocery store worker’ to tap him on the back? Did Rudy misinterpret the back tap as an atta-boy? Did Rudy provoke the grocery store worker by his presence in the store, by merely breathing and speaking? I just don’t know.
Lastly, we would have to determine ‘what he is worth’ for compensation purposes. Rudy said he was an old man. At this point, we would review actuary tables and jury awards in NYS for people getting hit with boulders in Supermarkets, to determine what an old guy his age is worth. And watching all of his crazy antics over the last several years, probably not much. Don’t forget that press conference he held in the parking lot of the Four Seasons Landscaping Company, that just happened to be adjacent to a sex shop, where the shoe polish was running down his face. Apparently, everyone thought he was supposed to hold a Press Conference at the Four Seasons Hotel, not at the Four Seasons Landscaping Company. To make matters worse, it was in the parking lot of this company.
And you know, I haven’t even mentioned his alleged involvement in the January 6, 2021, attempt to overthrow the U.S. Government.
Just look at this guy’s state of mind. It is possible that his recollection of the events of the back tap do not correspond to the video tape.
I suspect in NYS, no one has ever gone to trial for a ‘back tap;’ received monetary damages for a ‘back tap’; no one has ever gone to jail for giving someone a ‘back tap;’ and to be clear, it is not a crime to give someone a ‘back tap.’
Better yet, if the boulder hitting Rudy were an ‘Act of God,’ well, shit happens, and there is no liability. You can’t sue mother nature or the Good Lord. As the good book says, some things were just meant to be.
But wait…when I watched the video of this incident, I did not see a boulder hit Rudy. I saw a guy, walk pass Rudy, and literally ‘tap him on the back.’ Did anyone see what the Grocery store employee looked like? He did not resemble Mr. Universe or the Action Figure Thor.
This tap on the back looked more like someone giving you a pat on your back, like ‘atta boy, way to go.’ A closer examination of the video revealed that Rudy, a Gladiator (not), barely flinched when the grocery store worker tapped him.
Rudy claims that his assailant was angry about the Supreme Court’s decision to overturn Roe v Wade, and thus hit him on the back. What a great opportunity for Rudy to try to make nothing into something. Now he was spewing shit that ‘crazy pro-choice people will start attacking people.’
The grocery store worker was initially charged with a felony, which was reduced to a misdemeanor. Before we know it, the matter will be reduced to a violation, and disappear.
Poor Rudy. The only injury poor old crazy Rudy sustained was a bruised ego.
Save a Woman’s Right to Abortion and Reproductive Health Care Now!
TIME TO ABORT THE TEXAS HEARTBEAT ACT
Ladies and Gentlemen of the Jury; you are tasked with the responsibility to determine whether the Texas Heartbeat Act SB 8 is unconstitutional and therefore must be struck down.
The Texas Heartbeat Act SB 8 was argued before the United States Supreme Court on November 1, 2021. The Supreme Court Justices focused solely on the legal procedural issues of this case and did not address the factual issues that address the long standing Constitutional Right to Abortion as set forth in the landmark decision Roe v. Wade.
Thus, the scope of your deliberation is limited to determine whether Texas deprived citizens their Constitutional Right to an Abortion by drafting a law that precludes Federal and State judicial review of the constitutionality of the statute.
The effect is stunning: Texas SB 8 silences a woman’s Constitutional Right to Abortion and prevents her from having her rightful ‘day in court’.
In addition, as you will learn, this so-called ‘law’ deputizes people to become Abortion Bounty Hunters to literally accuse anyone of assisting a woman carry-out her Constitutional Right to Abortion. Which ironically, the Court did not address.
FYI, ignoring issues does not make them go away. But the Justices know that.
Realistically ladies and gentlemen, the Supreme Court appears to be on its way to extinguishing the Constitutional Right to Abortion and Reproductive Health Care for Women that was established in Roe v Wade. Thus, the monumental task of upholding Supreme Court precedent case law rests on your shoulders.
As you hear the facts of this case, I am certain you will conclude that Texas SB 8 in its entirety is unconstitutional and must be struck down. The Supreme Court is having a difficult time garnering a majority vote on this matter, so maybe you can ‘help’ them see the proverbial light and uphold their own precedent. Accomplish what the Supreme Court ought to do NOW.
What is next for women? What other rights can and will be silenced?
Thank you.
The Facts of the Case
Elected officials of the great state of Texas enacted the law SB 8 to prevent women from obtaining an abortion after the sixth week of pregnancy.
There are no ‘exceptions’ to this law. It does not matter if the pregnancy resulted from:
Rape.
Sexual Assault.
Sexual Abuse.
Incest.
SB 8 is a ban on abortion after the sixth week of pregnancy.
However, the ban on abortion was not the question before the United States Supreme Court. Surprising…right?
No, not really.
Wait a minute. You ask yourself… “Why didn’t the Supreme Court determine whether SB 8 violates the constitutionally protected right to abortion?” The answer is simple. Well, not so simple.
The Court knew they would hear oral arguments on December 1, 2021, notably the Mississippi case Dobbs v. Jackson Women’s Health Organization. The Dobbs case will determine whether the Court will uphold Roe v. Wade.
Until the Court renders that decision, the 50 year-old constitutionally protected right to abortion will continue to precariously dangle by a thread.
The Issue of the Case
The Supreme Court deemed the only justiciable issue before them was whether anyone can sue to stop the enforcement of Texas SB 8. Indeed, a curious question to a non-attorney. Nevertheless, a deeply concerning legal procedural question.
SB 8 Evades Judicial Review
Ladies and gentlemen, I am confident you are confused. Yes, you are correct in thinking that the purpose of this law is to ban abortion. However, that is not why the law was written and enacted. The purpose of Texas SB 8 was insidious at the outset: it was written to specifically evade any judicial review.
What does judicial review mean? Exactly what it says. Courts are empowered to review the lawfulness of a Federal or State statute. In this case, the drafters of SB 8 intentionally wrote this legislation to be beyond reproach; essentially bulletproof to any judicial review.
Shocking? No.
Sneaky? Yes.
SB 8, not only enforced a ban on abortion, but legislated that no person, no entity, can sue the State of Texas to argue the lawfulness of this law.
This is the perplexing part of SB 8. Generally, when a person alleges they suffer an injury from a Federal or State statute, that person will sue the entity (the Federal, State or Local Government) that enacted said legislation. The relief sought would be to invalidate the law considered to be unconstitutional or invalid; to stopenforcement of the law.
However, Texas claims SB 8 is not enforced by any State official. Thus, opponents of this law who seek to stop enforcement of it have a real problem determining the correct named party/defendant to sue.
For the pregnant woman from Texas who is prevented from getting an abortion due to SB 8, who does she sue? What party does she name, to argue that the law is denying her constitutional right to an abortion? The answer is… I do not know. And neither did the Supreme Court Justices when they heard oral arguments in this matter.
The unmitigated gall of these so-called Texas ‘legislators,’ who allegedly represent the interests of their constituents. They drafted and enacted a law that prevents the very people who elected them from legally challenging this abortion ban.
Texas Asserts They Do Not Enforce SB 8
Wait a minute…just what did the drafters of SB 8 do? According to SB 8, Texas Governmental Officials do not enforce SB 8. Funny, that is what the State of Texas asserts.
Ask yourself: Well, if the State does not enforce this law, then who enforces SB 8 in Texas?
The Enforcers
Pursuant to the law, this legislation deputizes anyone who is not a State Official to enforce SB 8.
Ladies and gentlemen, kindly pause for a moment. Ask yourself: Do you really think the State of Texas is not enforcing SB 8?
Please, follow along with me. Banning all abortions after the sixth week of pregnancy is cruel and unusual punishment to women. And as bad as that is, the insidious component of this law is the deputizing of private citizens to be knighted ‘Abortion Bounty Hunters,’ to hunt down and accuse any person who participated in the procurement of an abortion.
The Abortion Bounty Hunters
Incredulous as this sounds, it is worse than you can imagine. To reiterate, the State of Texas has turned plain ‘ole folk into Abortion Bounty Hunters, to prey on anyone who seeks to get an abortion. Oh, and the bounty is up to $10,000. A rather profitable endeavor to be an Abortion Bounty Hunter.
Keep in mind y’all, Texas says they do not enforce this law.
It does not matter that the deputized citizen/bounty hunter, who becomes a plaintiff in a future civil suit to claim the reward, was not directly injured by the person they are suing. Which is odd, because in the real world of civil litigation, a plaintiff must allege he/she sustained some injury caused by the defendant.
Then again, this is Texas. Clearly, they just make up their own rules.
Seriously ladies and gentlemen. SB 8 appoints private citizens to become bounty hunters to sniff out abortion in Texas. It is clear these bounty hunters are acting as an arm of the State of Texas, and this ‘bounty hunter’ will become eventual plaintiffs against their prey to recover the cash reward, the bounty, for enforcing the law.
According to Justice Clarence Thomas, ‘SB 8 plaintiffs are acting in concert with Texas to enforce this law.’ To clarify ladies and gentlemen, this means that the great state of Texas is enforcing this law.
Sorry Texas, your government is enforcing this law. But y’all already know that. Shame on Texas. They can’t hide behind their bounty hunters and proclaim they do not enforce the law.
Aiders and Abettors of Abortion
The following are just a few of the people who can be sued for ‘aiding and abetting’ the procurement of an abortion and be liable for payment of the cash reward:
The husband/partner who drove a woman to an abortion clinic/private physician.
The cab/uber driver who drove a woman to an abortion clinic/private physician
The nurse who assisted in the abortion.
The Doctor who performed the abortion.
The woman who received the abortion.
A shocking list of ‘so-called’ aiders and abettors. These people are your sister, mother, brother, father, uncle, grandma, grandpa, doctor; get the picture?
Right Leaning Justices
Apparently, some Supreme Court Justices were more concerned about a State appointing Bounty Hunters to enforce their laws, as opposed to banning abortion after six weeks of pregnancy.
The Supreme Court is supposed to be ‘apolitical.’ However, this Court is clearly aligned along partisan lines, which is a no-no. The Justices who were appointed by Republican Presidents, do publicly espouse conservative political views. Yes, these ‘right leaning Justices,’ who now comprise the Majority rule of this Court, are not ‘fans’ of Roe, and have expressed a willingness to dilute that Landmark Decision.
Once again, that is no excuse to not address this Texas ban on abortion.
Women Have Constitutional Rights
Clearly, the majority of the Justices are aligned with Texas in this matter. Did these Justices forget that the very Court they sit on has ruled that a Pregnant Woman has Constitutional Rights, but the unborn fetus does not?
A fetus at 6 weeks, 12 weeks, 15 weeks, and 23 weeks is not recognized by this Court to have any Constitutional Rights.Roe v Wade determined the viability of a fetus at 24 weeks; the RIGHTS OF THE PREGNANT WOMAN MUST BE BALANCED WITH STATE RIGHTS.
Oh, don’t you love selective memory.
However, are you really surprised? I am not. Let’s be serious. Texas clearly does not care about the health, safety and welfare of a woman. Because if they actually did care about a woman, they would not have enacted SB 8.
And why should the Justices address the abortion component of SB 8 now? No matter that all abortions in Texas have come to a screeching halt due to this law. No matter that women are suffering. No balancing of a pregnant woman’s rights with that of the State. This is just another news cycle, hoped to be forgotten.
The pain and suffering experienced by thousands of Pregnant Texas Women who are unlawfully denied their right to an abortion will not be forgotten. As of this writing, 62% of Americans polled support Roe. The Court cannot turn a deaf ear on the ‘pulse’ of the Majority of Americans.
The Justices are working on their own timetable: they heard the Mississippi case on December 1 and will continue to erode at the Court’s rule of law by not upholding precedent.
Great message from the Court: Screw you Texas Women.
Legalization of Bounty Hunters
Justice Kavanaugh, in his infinite wisdom, pondered what would happen if the court upheld SB 8 and thus permitted the State to use bounty hunters to limit other Constitutional Rights.
I ask you: At this moment in time and history, what is more important than a woman’s Constitutional Right to Abortion and to Reproductive Care?
Well, Justice Kavanaugh was more concerned about the potential restriction of the Second Amendment. Really? Bless his heart.
Guns? What do they have to do with Abortion Rights?
Oh, and yet, this case gets better. The Firearms Policy Coalition, submitted an amicus brief and was very concerned that ‘Blue States’ (i.e. California, New York) will act just like Texas and create unlawful procedures and penalties to enforce a law that is blatantly unconstitutional. Mind you, they were not talking about the Texas ban on abortion being unconstitutional.
My word! Heavens to Betsy! This coalition was sickened at the mere thought of liberal states banning the sale and ownership of handguns and appoint bounty hunters to hunt down gun-totin’ people. Can you imagine?
Of course, Kavanaugh agreed with this amicus brief and envisioned the ownership or sale of a handgun would be illegal in States like New York and California, if the court upheld SB 8. Oh, my word! Don’t you love the ‘tit-for-tat’ game?
Children of the Court, oh, I mean Justices, stay focused on the Abortion component of SB 8, not the procedural smoke screen.
Reap What You Sow
You betcha Kavanaugh! Your worst nightmare came true! Bravo to Governor Gavin Newsome of California. Newsome just proposed a gun law that would be modeled on the Texas one. Sucks when you have to take your own medicine.
Bottom Line
In simple English, SB 8 is a nasty law. It completely ignores established Constitutional Law, exempts itself from any Judicial Review, and deputizes citizens to become Abortion Bounty Hunters to enforce a law that in fact violates Constitutional Rights. Not to mention it silences women’s rights.
Ladies and Gentlemen of the jury, consider this thought: If women are stripped of their Constitutional Right to Abortion and Reproductive Rights, what is the next right women will lose? The right to vote? What about rights that are not protected by the Constitution? What if a State wants to enact a law that prevents women from attending college or driving an automobile?
I betcha did not think women could be stripped of those rights. If it happens in other countries where women’s rights are restricted, why not here?
If SB 8 is constitutional, a State is empowered to enact any law that is not subject to judicial review. Frightening to say the least. What is to become of the good ‘ole U.S. of A.?
The Supreme Court, as a result of its inaction to declare SB 8 unconstitutional, has caused this matter to spiral out-of-control. The Conservative Justices, by their own doing, are making this Court impotent.
The Constitution is a living document. The ‘Founding Fathers,’ the Men (no women) who wore the wigs, were actually forward thinking human beings. They purposefully drafted the Constitution to grow with our nation, not against it. They founded this country to not be ruled by the absolute power of one ruler; they wanted to spread power among different ‘branches’ of government for ‘checks and balances;’ and they wanted to separate Church and State.
The Supreme Court is a separate and distinct arm of government. It should unequivocally not be political. In modern times, it should rise above all the bullshit that occurs in Washington and this Country.
A Woman’s Constitutional Right to Choose: Roe v Wade
In truth, I realized that most people do not know and/or understand the legal meaning of Roe v. Wade. Oh yes, we all know that on a macro-level, it affords a woman the Constitutional Right to choose to have an abortion. However, that is a very broad understanding of Roe.
An attorney would define Roe as The landmark 1973 U.S. Supreme Court Case that afforded constitutional protections for women to choose to have an abortion prior to the viability of a fetus.
Why did I decide to write about Roe v Wade? To define legal terms as ‘viability of a fetus,’ explain how the Constitutional Right to Privacy affords a pregnant woman the right to choose, and the timetable the Supreme Court set forth to delineate when a woman can lawfully obtain an abortion, if she chooses, in this country.
Fragility of Roe v Wade
On September 1, 2021, the State of Texas enacted SB 8, The Texas Heartbeat Act, which bans abortion after the sixth week of pregnancy, with no exceptions.
The State of Texas unequivocally limited women’s rights upon the enactment of SB 8, which is in direct contravention of established Constitutional law, Roe v Wade.
To all the non-lawyers out there: The Constitution and Supreme Court Decisions take precedent over conflicting federal and state laws.
Stop the Presses! I thought the United States Supreme Court in Roe v. Wade ruled that a woman has a right to choose to obtain an abortion prior to the viability of a fetus.
I am confident that you all, just like me, do not understand how Texas can blatantly disregard the landmark decision of Roe v. Wade and ban abortion in their state.
However, before we talk in depth about the ‘Constitutionality’ of SB 8 (which will be addressed in another article), we all need to understand Roe v. Wade and how that case legalized abortion in the United States.
Facts of Roe v Wade
Does anyone know the underlying facts of Roe v Wade? I am confident that most Americans do not. Roe was first litigated in 1971… 50 years ago. Jane Roe lived in Texas, was a single, pregnant woman who brought a class action lawsuit to challenge the Texas criminal abortion laws. Texas in 1971 made it a crime to obtain an abortion, with the sole exception that an abortion could save the mother’s life.
Jane Roe wanted to terminate her pregnancy for the following personal reasons:
‘She was unmarried and pregnant.
She wanted to terminate her pregnancy via abortion by a licensed, experienced physician in Texas.
She was precluded from obtaining a legal abortion in Texas, because her life ‘did not appear to be threatened by the continuation of her pregnancy.’
She could not afford to travel to another state to obtain a legal abortion.
She asserted in her lawsuit the Texas abortion statutes were vague and violated her Constitutional Right to Privacy.’
The Right to Abortion is NOT Absolute
Jane Roe argued before the US Supreme Court, “a woman’s right to an abortion is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.”
What most Americans do not realize, is that the Supreme Court did not agree with Jane Roe’s argument that a woman’s right to abortion is absolute; and disagreed with the notion that a woman is entitled to terminate her pregnancy at any time.
Justice Blackmun’s Supreme Court Majority Opinion
The Honorable Justice Blackmun wrote the Majority Opinion for Roe. The majority opinion is the legal decision rendered by a majority (more than half) of the Supreme Court Justices and explains the reasoning behind the court’s decision on a legal and factual basis.
In the Majority Opinion, Justice Blackmun was cognizant of the differing opinions towards abortion in 1973 and in my opinion, addressed the issue of abortion with great sensitivity and compassion towards all Americans.
The issue of abortion was a ‘hot button topic’ in 1973 and seems even more divisive in 2021. Justice Blackmun’s Majority Opinion articulated a comprehensive review of the history of abortion from ancient Greece and Roman times to present day in the United States.
I believe, the most important part of Justice Blackmun’s majority opinion, was how the Court determined the 14th Amendment of the Constitution, the ‘Right to Privacy’, afforded a pregnant woman the right to choose to have an abortion. However, the court determined this is not an absolute right to abortion. Here is the BUT: The State can regulate abortion vis-à-vis showing a Compelling Interest to protect the health of the mother and fetus; then there is the AND: the abortion must occur prior to the viability of the fetus.
Easy to understand that Roe gives a woman the ‘right to choose to have an abortion,’ but yet it comes with caveats, that we will discuss.
The Issue Decided by the Supreme Court
For all you non-lawyers: Every legal matter that is litigated in court, always has a question, an issue to be decided by the Court.
The issue before the Court in Roe: Whether the U.S. Constitution protects a pregnant woman’s personal liberty to choose to have an abortion without excessive State regulation.
In Roe, the Supreme Court ruled that a woman has the qualified right to terminate her own pregnancy. Please note the italicized words qualified and absolute. These words are critical to understanding the ruling in this case.
The Court determined the Due Process Clause of the Fourteenth Amendment, which affords the Right to Privacy against State action, also grants a woman’s qualified right to terminate her pregnancy.
In plain English, the Constitution gave Jane Roe personal liberty protections to fight the Texas ban on abortion; and the Supreme Court granted her a qualified right to get an abortion.
However, in constitutional matters such as the Right to Privacy, the Court will look to balance the State’s interests against that of a Woman’s control over her pregnancy. Yes, balance means reviewing the facts; assessing factors that would determine ‘fairness’ to all parties.
A Woman’s Qualified Right to Get an Abortion
The Court considered whether the following factors would unduly harm a woman who is prohibited by State law from ending her pregnancy:
‘Medical Harm to the woman.
Psychological Harm.
The social stigma of being an unwed mother.
The eventual birth of an unwanted child may bring psychological harm on the family.
The financial, economic stress.’
In this regard, the Court would ask a woman who sought to obtain an abortion, whether the State’s ban on abortion is detrimental and causes irreparable, undue harm to the health and well-being of a woman who is forced to continue an unwanted pregnancy?
The State’s Compelling State Interests to Regulate Abortion
Did you wonder why a State aggressively opposes abortion? In Roe, the State of Texas alleged they have an interest to protect the health of the mother and the fetus.
The Court in Roe determined that a woman has certain fundamental constitutionally protect rights, and when she seeks to obtain an abortion, the State may limit these rights by asserting a compelling state interest.
Remember: The Supreme Court REGULATED a woman’s right to abortion to effectively balance a woman’s privacy rights with that of the State’s interests.
Compelling State Interest Factors
According to Roe, at some point during the term of a pregnancy, the State interests become dominant for the following reasons:
To protect the Health of both the woman and the fetus.
To uphold Medical Standards.
To Safeguard Prenatal Life.
In addition, the State argued in Roe that the woman’s Right to Privacy is NOT ABSOLUTE throughout the entire pregnancy.
The Supreme Court: The Qualified Right to Terminate a Pregnancy
What does a qualified right to terminate a pregnancy mean? Exactly what it says. No American citizen can just ‘go and get an abortion.’ The Supreme in this case, set up ‘guard rails’ to define:
The Viability of a Fetus. and
Provide a Timeline for the Regulation of Abortion via ‘Trimesters.’
The Viability of a Fetus
The viability of a fetus is a long debated topic. The court concluded, based on historical, religious, and medical facts, that viability occurs when the fetus can survive outside of the mother’s womb at 24 weeks of gestation.
The Court: The Rights of a Pregnant Woman Must Be Balanced with State Rights
As previously discussed, the Court sought to balance the Fourteenth Amendment’s Right to Privacy and State Interests. This was accomplished by the Court identifying three trimesters of pregnancy; each comprised of twelve weeks.
First Trimester: ‘Approximately’ prior to the end of the first trimester, A state cannot regulate abortion. Exception: A state can require the medical procedure be performed by a licensed physician in a medical clinic, office, hospital.
Second Trimester: A state may regulate abortion to promote its interest in the maternal health.
Third Trimester: A state may ban abortion. ‘Considered to be the stage before fetal viability, the State has a compelling interest in protecting the potential human life; however, may proscribe abortion for the preservation of the life or health of the mother.’
The Majority Opinion of Roe v. Wade
As I previously mentioned, Justice Blackmun, who wrote the Majority Opinion, cited the common law. The common law is based on the history of social customs, traditions, and judicial review, and not on statutory law.
To quote Justice Blackmun:
“It is thus apparent that the common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this county well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.”
The above quote is in my opinion, profound. Why did American women have a ‘broader right to abortion’ in the 19th century, than today? It is even more incredulous to comprehend, how in 2021, some States are relentless in their efforts to ban abortion.
Consequence of Overturning Roe v Wade
The effect of overturning the decision in Roe, means that Texas SB 8 would ‘stand’. The Abortion prohibition in Texas would create a domino effect for every State that wants to ban Abortion.
True. Overturning Roe would greenlight a State’s prerogative to enact legislation that would Ban abortion.
Once again, I ask you all to consider the undue hardship and detrimental effect this would have on all women who reside in neighboring states that prohibit abortion. Women would have to travel hundreds of miles (perhaps thousands of miles) to obtain a legal abortion. Women would have to leave their families to travel via plane, bus, car, or train; women would be required to take days off from work and find childcare for other children in the family in their effort to obtain an out-of-state abortion. The financial costs incurred would be an insurmountable obstacle for many women.
Oh, and by the way… a woman’s choice to have an abortion is not a decision that is made with the ‘flick of a switch.’ There is an emotional component that cannot be quantified. A decision to have an abortion is an individualized process, a thought process subjective to each pregnant woman. Obstacles literally thrown in the way of this process not only unduly harm a woman but can result in permanent emotional and physical harm to a woman for the rest of her life.
Keep in mind that Texas is not the only State in the good ‘ole U.S of A. that wants to deny women their Constitutional Right to choose to have an abortion. Alabama, Georgia, Kentucky, Louisiana, Missouri, Mississippi and Ohio all want to enact similar heartbeat legislation.
It is clear these States march in solidarity with Texas to disregard established Constitutional protections of the Fourteenth Amendment Right of Privacy granted to all women.
Now. I ask you all to think for just one moment…Roe was first litigated in a Texas courtroom in 1971. It was ultimately argued before the US Supreme Court in 1973. Today is 2021.
Why do we continue to move backward as a nation, and not forward? Why do some folks want to impose more restrictions on choices that affect our own bodies? Keep in mind, that a pregnant woman who chooses to get an abortion does not impact society as a whole. The impact is on her body, her life and her family. Her choice does not affect my life or your life.
Stay tuned… the next article will address the Constitutionality of Texas SB 8.
*This Article Currently Appears in the Tracy Anderson Magazine Fall 2021 Issue
The Honorable Ruth Bader Ginsburg
Welcome to the good ‘ole US of A. Land of the free and the brave. And, Texas, the proud owner and divine creator of the Heartbeat Act. Those Texans, so damn creative to come up with legislation that prohibits and criminalizes abortion.
Suppression of Women’s Rights
It is true, Texas stripped women of the right to make decisions that concern their own body. And just like that, with the stroke of a pen, the Heartbeat Act became the law of the land in Texas. Thank you to the Texas State Legislature and Governor Greg Abbott. Y’all give yourselves a high five for reducing women to chattel. For all you non-lawyer folks, chattel means ‘thing’, or ‘property’.
Indeed. Texas women, consider yourselves owned by Texas men.
I am serious. How did these politicians come up with this law? The last time I checked, politicians, lawyers and judges are not physicians. Hmmm. Who are these people to determine the where and when of abortion?
Check your calendars. Is this not the 21st Century?
I ask y’all: Why is there an overwhelming WANT in this country to suppress the rights of women? For that matter, why do our fellow sisters, our brethren, want to suppress our collective rights? Why?
The Heartbeat Act
The Legislative intent of the Heartbeat Act is to block Texas women from obtaining an abortion. Plain and simple.
The state legislators seemingly picked out of ‘thin air’ a cut-off date as early as 6 weeks for Texans to legally obtain abortions. In law, we call that ‘arbitrary and capricious’, because this statute was not rooted in medical science. Again, the intent was to ban abortions because they wanted to.
Definitions of Statute
Let us together, review the statute, to understand the far-reaching implications of this legislative abomination. In order to understand the meaning of the statute, we first must read the “Definitions” section.
When we read statutes, you must first look at the definitions section of the statute which is the road map to decipher the actual law. Sometimes, statutes are written with lots of fancy, schmancy legalese, to confuse the average person. Yes, it is written to confuse YOU.
It is important to note that the Texas Legislators determined the definitions of these words. Not you. Not me.
The Detection of a Fetal Heartbeat
According to the statute, “…The Heartbeat Act was enacted to amend The Texas Health and Safety Code, Chapter H”. This statute allegedly protects the health of Texans. Wow. Does it really?
The statute defines words, such as ‘Fetal Heartbeat’, ‘Gestational Age’, ‘Gestational Sac’, Pregnancy’, ‘Unborn Child’, and ‘Cardiac Activity’. That is a lot of medical terminology. To reiterate, I had no idea politicians, lawyers, and Greg Abbott knew so much about medicine. Fascinating, right?
When you put all these definitional words together, the Texas legislature banned abortions as early as six weeks.
A question to every woman who has ever been pregnant: Did you know as early as 6 weeks, that you were pregnant? I for one, did not.
Viability of a Fetus
The Heartbeat Act, has determined that a ‘fetus’ is now ‘viable’ as early as 4 weeks into a pregnancy. Did you know that the viability of a fetus is defined as when a fetus can survive outside of the womb? The landmark U.S. Supreme Court Case Roe v. Wade, recognized fetal viability at 24 to 28 weeks.
In fact, this legislation determined a fetus is viable at 4 weeks, when, the State of Texas claims, a fetal heartbeat can be detected via ultrasound. However, many physicians will assert that at 4 weeks, the ‘fetus’ is an embryo, and a human heart is not developed yet. Thus, it can be argued, that the alleged heartbeat is really an electronic flicker that the ultrasound recorded rather than a human heartbeat.
For purposes of this statute, the ‘fetal’ viability clock starts ticking from the first day of a woman’s last menstrual cycle (also known as ‘period’).
Once again, I ask all women who menstruate: Do you know the last day of your menstrual cycle? I for one, when I had menstrual cycles, never knew the last day.
I ask women who have ever been pregnant: Did you know as early as 4 weeks, which was calculated from the first day from your last menstrual cycle, that you were pregnant? When I was trying to get pregnant, I did not have any idea that I was pregnant at 4, 5, 6, or 7 weeks. Really.
Not surprising that many women do not know they are pregnant. As a matter of fact, the only way you can tell if you are pregnant, is when you ‘skip’ or ‘miss’ a menstrual cycle, which typically occurs 2 weeks after conception. And by the way, many women’s menstrual cycles, are not timely and punctual. They are erratic. Thus, if a woman’s ‘period’ is ‘late’ by a few weeks, not all women would suspect a pregnancy. Under this common scenario, a woman may learn she is 7 or 8 weeks pregnant by taking a pregnancy test at home.
The problem with real life and this statute, is that when a woman finally is examined by a doctor to confirm a pregnancy, she could be 9 weeks pregnant. In Texas, a woman no longer has the right to choose what is right for her and her family.
Compelling State Interest to Protect
Now, the statute cites that Texas has a compelling interest from the outset of a woman’s pregnancy to protect the health of the woman and the life of the unborn child.
Ask yourself: Do they really have a compelling interest to protect the health of the woman and the life of the unborn child?
According to the statute, Texas wants the Woman to ‘make an informed choice about whether to continue her pregnancy’, specifically, that ‘the pregnant woman has a compelling interest in knowing the likelihood of her unborn child surviving to full-term birth based on the presence of cardiac activity’. This is ludicrous for the reasons previously set forth. Most women do not know they are pregnant at 6 weeks; for that matter, at this juncture of the pregnancy it is difficult to medically determine whether the embryo will survive full-term.
Quite the contrary, this legislation limits health care to women and the unborn child. The legislation does not take into consideration the health of the woman, nor the health of the fetus.
Misconception of Conception
There is a misconception as to how women view an abortion.
I have never met a woman who was ‘eager’ to have an abortion.
I have never met a woman who used abortion as a form of birth control.
Walk in My Shoes
How do I know this? Walk in my shoes. I had an abortion 23 years ago, almost to the day of writing this article. There. I said it out loud.
I have finally decided to share my life experience, because I believe it unequivocally provides clarity as to why the Texas Statute does not protect a pregnant Woman or the Unborn Child.
Quite the contrary. The Heartbeat Act is cruel and inhumane, because it sets forth specific dates that define in-utero developmental milestones not rooted in medical science and disregards the health, safety and welfare of both mother and unborn child.
The consequences of this ban on abortion are in truth, far more emotionally and physically detrimental than the actual abortion.
In simple terms, the Heartbeat Act is a wolf dressed as a lamb. Governor Abbott and the Texas State Legislature have no interest in protecting the health, safety and welfare of both the woman and unborn child. Rather, this Act promotes their own agenda to ban abortion at the behest of all people.
If I lived in Texas now and chose to have a baby, my pregnancy would be subjected to the Heartbeat Act.
My Story
My husband and I are carriers of the Tay-Sachs gene, which is a fatal genetic illness that emerges when a baby is 6 months old. As my doctor told me, babies born with Tay-Sachs are beautiful, have piercing blue-eyes and blond hair. At 6 months of age, all of the motor skills a baby has developed up to that point, such as sitting up, rolling over and crawling come to an absolute, sudden HALT. The baby will go blind, deaf, and experience severe mental retardation. Typically, a Tay-Sachs baby lives between the ages of 4-7. However, due to modern medicine, the child, could ‘live’ longer. Clearly, this would be no ‘life’. It would be torture for the baby/child and mother. The baby would have to be institutionalized. Horrible.
When both prospective mother and father test positive for Tay-Sachs, there is a 1 in 4 chance the baby will be born with the disease. To be clear, for each pregnancy, there is a 25% chance the baby could be born with the disease.
In truth, despite the fact we were both carriers, I did not believe there was a chance that we could possibly have a child diagnosed with that terrible disease. The odds seemed so remote at the time to me. You know, the ‘that will never happen to us’ scenario.
When my doctor confirmed my pregnancy, he discussed 2 tests I could take to determine whether the baby had Tay-Sachs.
Test #1 was a ‘Chorionic Villus Sampling (CVS)’ performed no earlier than the 10th week of pregnancy. CVS is a prenatal test in which a sample of chorionic villi is removed from the placenta for testing.
Test #2 was an ‘Amniocentesis’ (Amnio) performed no earlier than the 16th week of pregnancy. The Amnio is a procedure in which amniotic fluid is removed from the uterus for testing or treatment.
I elected to take the CVS test because I could get the results earlier in the pregnancy. The sooner to know whether the baby had this fatal disease, the better. Right?
In the 10th week of my pregnancy, I took the CVS test. The test proved to be extremely painful. I actually thought I would pass out during the test. After 2 failed attempts to get a sample, we had to end the test. I physically could not endure the pain.
Thus, I had to wait to take the Amnio. I can assure you, there is a big difference from the 10th to the 16th week of pregnancy. I was now in my second trimester and was sporting a little ‘belly’. Even had a bit of that pregnancy ‘glow’.
In the 16th week of that pregnancy, my doctor performed the Amnio. It takes 2 weeks to get the test results.
In the 18th week of that pregnancy, my doctor personally called me, and told me the baby did have Tay-Sachs. It was as if the world stopped. My doctor was sensitive to my disappointment, shock, and sadness. He proved to be my guardian angel for the next few weeks, months and years.
In addition to my doctor, a counselor from the genetic center at the hospital immediately phoned me, to also give me emotional support and guidance as to ‘next-steps’. According to several of my physicians, including religious advisors, the only option was to have an abortion. If this were Texas, I would not be permitted to choose to have an abortion.
We all concurred it would be cruel and inhumane for this innocent child to suffer from Tay-Sachs.
The Late-Term Abortion
I was now 18 weeks pregnant with a fetus that had a fatal genetic illness. Upon my consent, my doctor immediately made an appointment for me to see another doctor to perform the late-term abortion. If this were Texas, I would not be permitted to choose to have an abortion, nor would a doctor be permitted to schedule an abortion.
To make matters worse, we were about to celebrate my first born child’s second birthday.
Literally, the next day, I met the doctor who would perform the abortion. In truth, all I can remember is his smile. Oh, and he promised me that in the future, I will be able to conceive 50 babies. Apparently, late-term abortions are not so easy, and a skilled physician is required to perform this procedure.
I considered myself to be blessed. Even then, despite my heartache and despair, I wondered what less fortunate women would do in my situation.
I had no fear. I put my life in the hands of this experienced physician, who, along with my regular OB-GYN, guided me through this dramatic life experience.
To understand this timeline of events, it is the 18th week of my pregnancy. Within 2 days of learning the fetus I was carrying had the fatal genetic illness Tay-Sachs, I was scheduled for an abortion at an abortion clinic in NYC. If this were Texas, my doctors would be precluded from scheduling an abortion.
In truth, never in my life did I ever entertain the idea of having an abortion. However, never in my life did I ever know that my husband and I would be carriers of a fatal genetic illness. If this were Texas, my husband would have been accused of ‘aiding and abetting’ an abortion and be fined $10,000 for taking me to the clinic. I know. So hard to believe, but that is the Texas law.
Behind the façade of a very tall NYC building, was a non-descript abortion clinic tucked away. Hidden from the world. No signage, no labels. It looked like a business office from the hallway. Why so clandestine?
The year was 1998: At that time, it was common to see anti-abortion activists protest in front of medical facilities where abortions were performed. There were a few instances where these facilities were the target of violence, such as bombings, vandalism and arson. In October 1998, a physician who performed abortions, was specifically targeted and murdered at his home. Clearly, these were turbulent times.
My doctor scheduled this procedure at a clinic, and not in a hospital, for the sole reason that the clinic had up-to-date medical equipment to perform a late-term abortion. My health was a priority, and my doctors wanted me to be able to conceive future children. Again, if this were Texas, this would not be an option.
After the procedure, I awoke in a large room that must have had at least 12 beds for women to recover post-operative. One by one, we woke up. As I lay in my bed, I looked to the left, I looked to the right. Women of all colors, nationalities, and religions were just like me. The only difference was we came from different neighborhoods.
When we were still laying in our respective beds, we all started to talk to each other. This proved to be a life-altering moment for me. First of all, everyone was sad. Not one person was happy. Second, everyone was honest. Of course, we were, we had no choice, we were coming out of anesthesia. Third, everyone had an incredible reason for choosing to have an abortion. And not one reason was for birth control.
In truth, I loved each and every one of those women. This experience is something that I have carried with me for 23 years.
Fortunately, my wonderful doctors gave me the best medical care. And as my doctor promised, once I was fully recovered, I learned I was pregnant. This time, after waiting for the amnio results at 18 weeks, my doctor happily congratulated me that the baby was healthy.
No Badge of Honor
Abortion is a personal, private choice. There is no badge of honor awarded for choosing to have an abortion. Alternatively, a woman should not be shamed to wear a Scarlett letter for choosing to have an abortion.
In truth, no one understands what it means to have an abortion. Unless, of course, you chose to have one.
Please do not limit, restrict or ban my right to an abortion unless you have walked in my shoes.
