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?
Get it? Oil and water don’t Mix. Church and State don’t mix. And the Messiah, Ronald Reagan decreed that edict during his two terms in the Oval Office.
As I live and breathe, with my hand upon a bible, the highest court in our land, the U.S. Supreme Court, has always ruled Separation of Church and State is PRECEDENT case law. Period, end of discussion.
I was educated at Public Schools. I received my Law Degree from a Private Roman Catholic Law School.
At my Law School, we were not ‘schooled’ in an alternative reality accompanied by alternative facts. My Constitutional Law Professor relied on real facts to teach this subject. Indeed. We studied real Supreme Court cases and learned how precedent case law evolves not over months, or years, but decades.
To be clear, it was always my understanding Supreme Court precedents are final. I.e.. Roe v Wade was precedent case law for over 50 years. The Conservatives Justices currently sitting on the bench all acknowledged that Roe was precedent, established case law, not to be re-litigated. So much for their word…
Many legal scholars and everyday folk interpret the U.S. Constitution to be a living, breathing document that was written to adapt to societal changes. You heard me… in my opinion, the Founding Fathers, wanted to heed the will of the American people while upholding Constitutionally protected freedoms.
On the other hand, some folks believe the Constitution must be strictly construed, where there is no flexibility to its interpretation. This is akin to the saying, “follow the letter of the law”. No surprise here that many ‘conservatives’ espouse this opinion.
So what does this have to do with prayer at a public school? Everything these days.
As we all know, the Supreme Court Conservative Justices ruled in less than one week, that people can walk anywhere in the United States with a gun; Women have no rights over their body’s; and now, a football coach can pray on the 50 yard line at the public high school he teaches at.
Clearly, these Conservative Justices do not give a shit about legal precedent and have no respect for the Justices who served on the Court before them. Their behavior on a professional level is abhorrent. As I have previously stated, the Justices are ruling on cases based on their own personal opinion/bias, not the rule of law.
Oh wait a minute. Are you thinking, ‘it’s no big deal if a coach gets down on one knee at the 50-yard line during a football game held at a public high school’? Oh, but the coach prayed after the game. Like that makes a difference.
Seriously, this is really bad. It totally violates precedent case law regarding Separation of Church and State.
Welcome to the Supreme Court Crazy Town. Justice Neil Gorsuch wrote the majority decision and ruled the coach’s prayers on the 50-yard line of a football field were ‘private speech’ protected by the First Amendment. Oh, and by the way, the Majority opinion believed this was all okey dokey, because the coach was not representing the public school district. Seriously? This is a legal opinion by a Justice?
Stop for a moment! Let me get this straight…the coach was on the field when he was actively working in his capacity as coach of the public high school football team. And then he engaged in Private Speech? That is absurd! The coach was praying on the 50-yard line in public…what is private about that? I have to stop; my head is going to explode.
As a point of reference, at the Private Roman Catholic Law School I attended, when we studied Supreme Court Landmark Decisions, i.e.., Roe v Wade, a Priest did not come to our lecture hall and discuss the Catholic Church’s opinion regarding abortion. That would have been wholly inappropriate.
I just am unable to write at the moment. I am watching the January 6 Senate Hearings, and an ex-white aide to Former Chief of Staff Mark Meadows that Trump wanted to remove all the magnetometers so the angry mob could storm the Capital with their AR 15s, brass knuckles, and other weapons. Trump knew the crowd had weapons, body armor when he told them to march to the capital. Better yet, Trump wanted to go to the Capital when all this chaos was unfolding, and Trump apparently lunged at secret service detail, in the Presidential Limo, and he, yes Trump, tried to grab the steering wheel to drive to the U.S. Capital.
Today, the Supreme Court has officially lost its mind by ruling that the Second Amendment to the Constitution grant Americans the right to carry a gun in public. Anywhere, anytime.
Everyone Carry a Gun!
The Majority Opinion was penned by Justice Clarence Thomas, who wrote ‘that keeping firearms at home makes little sense.’ Yes, with this ruling, it makes more sense that someone walks into a subway station, a park, a place of worship, a supermarket, a nightclub, a music venue, with a gun. Words of wisdom from a person who should resign from the Court. Oh, but that is another story.
At issue of yesterday’s Supreme Court Ruling, was a New York State Law that was on the books for one hundred years. The Majority Opinion determined that “New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents -law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.” Again, this ruling deems it important for a law-abiding citizen to walk around with a gun, anywhere.
The Supreme Court IGNORES the Pulse of the Majority of Americans
The Supreme Court is completely out of touch with the pulse of Society. The only pulse the Court is focused on is that of a six-week fetus’ non-existent heart-beat, which again, is another story.
However, it is clear the Court does not have its priorities in order. Namely, the health, welfare and safety of the American People.
Quite the opposite is true. On the one hand, the Court interprets the U.S. Constitution with a warped view that flooding the streets with guns affords Americans the protections of the Second Amendment. Somehow, the Justices believe that carrying guns in public is equated with public safety.
I am sorry. I do not understand that logic. You do not have to be a genius to know that if an ordinary, reasonable thinking person is walking around with a gun, that person is more likely to use the gun. Regardless of the level of provocation. Life happens.
Do Guns Protect People?
Do guns really protect people? Look at what happened at Robb Elementary School, located in Uvalde, Texas. One gunman enters an elementary school and murdered defenseless children and teachers. Despite cries for help from Children who were being shot at, law enforcement officials stood outside the school armed with guns, body armor, and yet they did not use their weaponry to save human beings. Did they need more guns to do their job?
Did the Justices on the Supreme Court think about this case? So what if they already wrote their decision prior to Uvalde. The decision could have been ripped up or deleted. No big deal.
Law-abiding citizens need rules and laws to govern a society. The clock has been turned backwards in our society, and we are now living in the wild west of the 1800s.
It is a sad day when Justices, despite all of their education and intelligence, display no common sense.
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.
