The Deception of the Primary Dobbs draft Argument (Roe v. Wade Reversal)
The Deception of the Primary Dobbs draft Argument (Roe v. Wade Reversal)
The supposed history of criminalization
Unsurprisingly, the same Supreme Court Justices that gave deceitful, evasive, tight-lipped testimony at their Senate confirmation hearings are just as misleading in their draft opinion.
The Opinion mocks the Casey (1992 super-precedent) authors for stating they might have “reservations” about these issues and that they “feel” the law should be read in accordance with their Opinion.
Justice Alito wants us to know he is a clear-eyed, objective Judge. Although, abortion is universally recognized as one of the most unfortunate subject matters, Justice Alito apparently has no reservations about taking this right from women. He does not “feel” a thing.
He just wants to look at the law and the facts and then let the chips fall where they may. So let’s do it.
THE LAW: A right not explicitly mentioned in the Constitution must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” to be part of the Due Process Clause of the 14th Amendment.
THE FACTS: Alito argues that abortion does not meet this standard, because at the time of the 14th Amendment (1868), the history actually shows,“an unbroken tradition of prohibiting abortion on the pain of criminal punishment…” He claims three-quarters of the states made abortion a crime, as detailed in a 31 page appendix of statutes. 31 pages of “CRIMINAL CRIMINAL CRIMINAL.”
Read the facts and weep, feelings-havers.
THE RESPONSE: EVERY statute prior to the 14th Amendment does not prohibit the pregnant WOMAN from doing anything. Every single statute for the relevant time period only applies to an abortion provider. The entire history cited by the Court prohibits a 1) medical provider from administering an abortion on a 2) woman. But, the analysis of the Court addresses the right of a 1) woman from aborting a 2) potential life.
The first step in determining the place of WOMEN’S abortion rights in our country’s concept of ordered liberty, should be to make sure that your criminal law analysis does not address the WRONG PERSON. In a move that is hard to view as unintentional, Alito fails to ensure that his statutory arguments correctly identify the 1) offender and 2) victim.
Abortion was not criminalized for pregnant women. The decision remained her individual liberty and choice.
Through this misdirection, the Court leads readers to believe that the vast majority of states were criminalizing women’s actions.
The analysis also leaves the door wide open for criminalization of women’s actions going forward.
Step 1: Women have no right to abortion, due to ITS history of criminalization
Step 2: Criminalization is permissible against WOMEN
So what happened? Why the confusion? Our pro-life friends at Americans United for Life (AUL) may be able to shed some light on that: the most conservative Justices on the Court have apparently fallen prey to some deceitful liberal propaganda!
AUL teaches us this: See, these pro-choice folks want to scare you. They want you to think there would be a high threat of criminal punishment for women if Roe were overturned. But, you just need to take a clear-eyed, objective look at the history to disprove the scare tactic.1
AUL confirms that the uniform policy (interpretation) of the state laws was that women were not the targets. So, this threat of the pain of criminal punishment was only a threat to the midwives and homeopaths that might get involved in a woman’s decision.2
This is why ZERO statutes involved the simple, direct candid language stating that the 1) OFFENDER is any person- including the pregnant woman- and they are prohibited from aborting the 2) VICTIM unborn human (or fetus).3
So what does the appendix of statutes show? I think the appendix is uniquely strong evidence that the PERSONAL LIBERTY of women remained deeply rooted throughout the relevant history of abortion regulation. The states knew how to regulate it. They were willing to regulate THIRD PARTIES. However, directly prohibiting WOMEN from making this decision was 100% AVOIDED. The liberty continued to remain within (literally) the jurisdiction of the WOMAN.
This is why the Court cites a total of ZERO criminal convictions of women from the time of the Constitution through the adoption of the 14th Amendment. Pain of criminal punishment? More like “glorious, unbroken liberty for all 81 of the decisive years.”
They could not vote, own property, hold office, avoid legal rape, etc. etc. etc. and the women still managed to somehow pitch a perfect game- statutorily and in the criminal courts. AMAZING JOB, WOMEN!!
In a twisted way, it is unfortunate that there was no direct criminal ban. Then, the woman could have had a court case challenging it. Instead, if a lawyer would have wanted to challenge the third party prohibitions on behalf of the (generally rightless) woman, the courts could have simply said that the statutes are merely there to prevent safety and health problems due to third parties’ involvement in the woman’s decision. They would say the statutes are not for control of the woman’s decision. They are there to protect it safely.
It would have been a catch-22 to challenge these statutes that resulted in no convictions.
You cannot have it both ways. Legislators cannot avoid being direct before 1868, only for the Supreme Court, 154 years later, to come in and claim that they directly banned abortion.
How in the world is this logic and this procedure being used to evaluate a Due Process case?
At best, if banning abortion was truly the goal of these statutes, then they sure tried to accomplish it in a sneaky, indirect way.4 So let’s just take that argument as true for a moment. Maybe these statutes were not designed to protect the safety of women. Perhaps the legislators knew a direct ban would create direct pushback (and advance women’s rights movement by decades), so they did not try it.
I suppose the theory would be, since no legislation banned abortion, that not a single state’s legislators had the balls to go home and tell their hardworking, child rearing, rightless wives that they passed legislation that directly prohibited abortion.
It’s fun to imagine the legislators trying to explain their sneaky, roundabout, controlling prohibition to their wives:"Oh, honey, we would NEVER prohibit YOU from making the decision you want and need. If the other legislators said they wanted to take that liberty from women, I would have walked out the door. We just do not trust these midwives and homeopaths. They are unsafe, assaultive interferers.
A lot of these weirdos don’t even believe in science, and I know how important that is to you. What we legislators envision is this: Someday, medical procedures will only be practiced by individuals that are trained, educated, licensed and certified.5 We want only safe procedures used too. In the meantime, it is just too risky to your safety to let them get involved.
I know how tired you are from everything you do for our family. If we had another child on the way, we would make a private family decision. We would sit down together and directly, candidly discuss what the right decision would be.
I WANT you to have more rights. Imagine where women like you will be 50 years from now and then 50 years after that. Then once you get there- fat chance of them ever taking your rights away. That is something that never has happened before.”
Some things never change.
Using this pre-1868 regulation of third parties as justification for reversing a personal Constitutional right in 2022 is nonsense.
If you keep a liberty for the (near century) beginning of that nation’s history up to the enactment of the Due Process clause, that would seem to be a well-rooted liberty for 100% of the time period that the draft deems relevant.
Then 50 years later you get to vote. Then 50 years later you get to actually have your issue considered by the U.S. Supreme Court and your liberty becomes confirmed as a right. 7-2 decision with plenty of Nixon appointees. Didn’t even have to reverse a previous decision. Stare decisis deference should begin.
Then it gets re-confirmed in the Casey decision, for many reasons, despite its soon to be fatal usage of the words “reservations” and “feel.”
Undefeated Champs 1787-2022.
Then, these new folks show up, and tell you all about how criminalized the history of abortion is, based on a period of history chosen by them, and it shows zero statutes targeting women and zero convictions.
Somehow the biggest fly that was buzzing around your liberty is now being used to prove that your liberty never existed, despite your nonexistent criminal record during the relevant period.
In fact, you are now eligible for your personal liberty to be taken through criminal charges, if your state deems it wise.
How could women end up this far behind? Even without considering stare decisis and the 154 years of Due Process caselaw, it seems like it should be logically impossible for them suddenly to be criminally eligible now.
Yet that’s what “no right” is.
The contradiction between 1) Alito’s purported “history of criminalization” and the 2) language of the statutes and total absence of convictions, is clear.
So what do we make of the pre-1868 third party restrictions, when they are properly viewed as such? Eventually, the safety reasons behind banning third parties ceased to exist. We no longer have midwives and homeopaths performing abortions. We have licensed physicians and safe medical practices. Such statutes can only now be seen as restrictions in modern times.
In fact, preventing a safe, skilled medical provider from the ability to provide an abortion is the #1 way to restrict the right to abortion. Forcing a woman to do it on her own is incredibly unsafe. The safety considerations of the statutes have been entirely reversed.
So, now we are told that the restrictions were always for control, not protection. Even though they never banned abortion or targeted women.
I suppose it would be possible for the Justices to simply reject this argument and reality. I suppose the provisional Dobbs majority might respond, without reservation or feeling, that since the history supports criminalizing medical providers, that can still happen, thus potentially leaving women only free to only have tortuous, dangerous abortions on their own. That is barbaric and should not be the decision of a civilized society, but, amazingly, it is still much better than the Opinion as currently written.
Regardless, such a decision would be invalid because if the majority fails to prove that the liberty was not deeply rooted, then Roe should simply remain in place. Their best evidence only proves that the decision remained part of a woman’s personal liberty, without exception, despite the collateral actions of the state legislators of the time.
At a minimum, if they are going to take away this right, and leave the door wide open for criminalization, they should at least be clear-eyed, direct and honest about the facts. There is already a huge stench of illegitimacy surrounding the situation.6
Shockingly, I see no indication on AUL’s website indicating that- although they agree with the provisional Dobbs decision- they strongly object to the potentially dangerous insinuation that we have a history of criminalization of women.
AUL also goes on to dispel the liberals’ scare tactics: Abortion would not immediately be criminal if Roe were overturned. So long as the most extreme state legislature of all 50 states does not criminalize it, everyone will be fine.
The Mississippi statute in Dobbs has such clear language - prohibiting any person from aborting a potential human being. However, the punishments appear to only apply to physicians. Alito ominously prominently uses this clear, universally applicable statutory language in the body of the draft Opinion.
Very indirectly, in fact! Additionally, the common law history is incompatible with the “life at conception” concept. Pre-“quickening” pregnancies were generally left unregulated (or less regulated) in common law. In fact, the quickening timeline is fairly comparable to the viability timeline of Roe and Casey.
Alito does not spend much time trying to dispute the lack of regulation of pre-quickening pregnancies at common law. He cites two pre-Constitution criminal actions. One source he uses is from Gentlemen’s Magazine. He claims that since the case does not mention explicitly that the abortion was post-quickening, it proves it probably was pre-quickening. Also, the trial transcript apparently reveals that the Judge’s comments about how terrible the crime was, were in reference to other crimes: https://www.washingtonpost.com/history/2022/05/15/abortion-history-founders-alito/
The safety of abortion procedures are now regulated within the confines of the very well-established medical industry. Just imagine all those 31 pages of statutes being changed to start with the phrase “Unless the medical provider is a licensed physician…” That is basically the version we have now. The regulatory scheme just was not in place yet in 1868. Limiting things to licensed doctors, when the AMA was not even created until 1847, would not have made much sense. A third party ban needs to be read in that context (or you could just not ignore the plain text of the statutes and the fact that there were zero convictions).
For those unaware of the massive Due Process problems surrounding this pending Due Process decision: Mitch McConnell unilaterally denied Obama voters of the value of their vote by disallowing Merrick Garland, so a 5-4 vote would already have an air of total illegitimacy. Plus, the most recent three Justices were appointed by a President that came to power with the help of Russian election interference. Then he obstructed the investigation into collusion. Then the Senate disallowed subpoenas for evidence and witnesses at the impeachment hearings. Then the Senate dismissed the impeachment on a party-line vote. The Trump appointees were not open about their views at the only chance the public had to evaluate them (confirmation hearings). Stare decisis is being tossed aside. It is obviously a political decision by the Court, with nothing changing other than the members of the Court being Republicans. 83% of Americans support abortion rights that expand beyond emergencies, but they cannot pass a law because the Senate is undemocratic and politicians are terrible.
The opposition/public has not been given an opportunity to respond to these novel arguments. The provisional majority already knew the other side’s winning arguments, but their winning arguments are just now being determined. For greater due process, the Court could consider rebuttal arguments directly or delay a decision for the cumulative knowledge of the public to progress for another month. The Court can look at whatever arguments are out there as they debate amongst themselves. It would be nice for the public to at least know an “earliest decision” date as we debate.
And where is Schumer’s substantive response to the arguments of the draft Opinion? Does he not want to participate in this public discussion? This is still America, so I don’t know why he wouldn’t want to chime in here. If they are not going to file a lawsuit like in Bush v. Gore to delay the decision or try to get leave to file a responsive brief based on the theory that the Senate’s confirmation rights were effectively denied, he could at least give some thoughts on the issue at hand.