Unhappy Anniversary! You are here: Dobbs abortion case analysis, one year later
I remember it like it was last year: In May, like an asteroid tearing across the sky, the Dobbs draft Opinion was released, and everyone knew Americans’ rights were about to be destroyed.
I already had the legal ethics blog going, so I tried to persuade[1] the USA that SCOTUS should not strip Americans of their abortion rights. Still, SCOTUS entered the decision on June 24. For the first time ever, USA women lost this basic liberty.
Alito’s SOLE point was that the USA supposedly has a long history of abortion criminalization. However, ZERO women were convicted through 1868. No women were even charged. The 1868 criminal statutes only dealt with third parties. Alito never shows the pre-1868 statutes restricted this liberty in any way.
Yet, 154 years later, these statutes are Alito’s justification for the biggest due process violation in USA history.
He makes the intriguing claim that in 1868,”[N]o one, as far as we are aware, argued that the laws they enacted violated a fundamental right.” That is true and definitely important…just not in the way Alito claims.
Join me for a list of Dobbs criticisms, to see how Alito thinks he is trickier than he really is.
Roe/Casey, US History and US legal history
During the first half[2] of a woman’s pregnancy, she has had the unrestricted liberty to terminate her pregnancy.
1. “No one disputes that the common law allowed it before quickening” - Roe
Very noticeably, ALITO sure does not dispute it[3]: he starts off his first argument by noting any common law restriction on abortion was “at least” AFTER quickening.
The pre-quickening liberty is consistent with all the ancient common law scholars that both Dobbs and Roe cite.
Alito’s own caselaw (at the end of section 2c) confirms that the rule was limited to post-quickening.
Alito tries to cite criminal cases for when the woman is attacked and loses the baby, or if she dies from someone performing an abortion. Totally irrelevant cases that actually tried to protect the pregnant woman.
Any common law restriction did not start until after half the woman’s pregnancy had ended.
PRE-QUICKENING LIBERTY REMAINS ENTIRELY UNREFUTED
2. Alito: “Abortion” was criminalized
Alito says that the reasoning behind the pre-quickening liberty is “unclear.” His own ancient scholars (like Blackstone) say it’s when people thought life began.
Alito says the reason for the rule does not matter. He argues that, by 1868, the flurry of statutes (starting in 1825)[4] meant 28 out of 37 states had eliminated the distinction.
Which, brings up the main point of my May 2022 post: it was actually only criminal for third parties (abortion providers). Not for pregnant women having an abortion. ZERO convictions. ZERO charges.
Alito brings up two pre-USA charges. One 1732 charge was for an abortion provider. 1 was a 1601 indictment.
Women were not criminalized for getting abortions.
THIS IS ALITO’S #1 ARGUMENT. His huge appendix of 37 state statutes, argues “abortion” was CRIMINALIZED.
The Roe Court acknowledged the argument that abortion never criminalized- but never determined if it was true. The Dobbs majority intentionally avoids the issue.
It is not too much to ask for SCOTUS to separate out: 1) the person claiming the substantive right, and 2) the medical assistant.
They have certainly done it before: Alito heavily relies on the 1997 Glucksberg assisted suicide case. One reason ASSISTED suicide was not allowed, was because, despite a relatively modern laxing of the laws, SUICIDE ITSELF had a long history of criminalization. Suicide was not considered a right, because it had long been held criminal.
ASSISTING abortion had a spate of being banned, starting mainly in the second half of the 1800s. Abortion itself was never criminalized.
When you are analyzing a CRIMINAL LAW make sure you are getting the RIGHT PERSON. Even the language of the statutes is different. The caselaw confirms women’s decisions were not criminalized.
3. Abortion ASSISTANCE and medical technology changed between 1868 and 1973
The dissent argues that the majority ignores USA women being treated more equally since 1868. They say “liberty” should be measured by current standards.
The better argument is the medical situation has drastically changed. There is no disputing that.
Alito wants to have his originalist cake and eat it too. He views “liberty” of women through the lens of 1868, but when transporting us to the that era, he fails to consider if the statutes are justified in light of the medical environment.
Roe found the government had an interest in regulating “abortion as a medical procedure.” However, arguments that the procedure is “inherently dangerous” had “largely disappeared” due to medical progress. [5] No dispute from Alito. No response at all.
Science drastically, astronomically reduced the inherent risk of the procedure. Eliminating safe, professional medical assistance could only be viewed as a liberty restriction. Ex Scientia Ius.
This is the #2 MOST IMPORTANT ARGUMENT. In order for there to be a liberty restriction, these statutes need to either: 1) Directly criminalize a women’s decision to get an abortion or 2) Not be justifiable for medical reasons.[6]
Alito should be required to convincingly eliminate the medical justification. He instead 100% purposefully avoids the subject.
The difference between medical procedures in 1868 and 1973 is akin to the difference between a horse-and-buggy and a rocket ship.
Additionally, the AMA did not even start until 1847. Ohio became the first state to require medical licensing in 1868. Prior to licensing, these types of bans were likely one of the few tools available to legislators.
Given the highly private nature of abortion, and the fact that medical care was surely extensively provided at home,[7] no one even knows what % of abortions were affected by the laws. How could one claim these bans were unreasonable restrictions of liberty?
Abortion was mortally dangerous, of course, so the statutes were medically justifiable. People might get the wrong impression that the procedure could be made safe, when in fact, more harm than good might come from third party involvement.
Why would some unlicensed, non-professional be allowed to give YOUR WIFE a cup of “just the right amount” of poison to drink, or surgically prod around her insides with some crude implement?
A disinterested third party has no right to take those risks under the statutes.
We ban hazardous medical procedures today. We ban the unlicensed practice of medicine. If your friend wanted to research abortion pills, acquire them, provide them to someone and then advise them on their usage- that is dangerous enough to be regulated and illegal. Yet, it is far safer than the third party involvement that was banned in 1868.
Imagine if Alito had a family member who needed an abortion. Would he REALLY see no difference between using: 1) a licensed doctor with modern medical technology and 2) a random 1868 weirdo?
The dilemma for women was similar to a frog that cannot detect being boiled, when the water temperature is slowly increased: How could they know exactly when the restrictions were no longer medically justifiable? When were they supposed to claim a violation of their rights?
As Alito says, no one seemed to know a fundamental right was at stake. Of course not! The women were told it was dangerous. Furthermore, none of them were criminally charged.
The majority entirely ignores whether these laws could be justified medically.
4. “Potential Life” given a free pass
The other government interest (aside from medical safety) recognized in Roe, was protecting “potential life.” That interest could only outweigh women’s liberties after the pregnancy reaches “viability.”
The Roe Court did not determine that these old statutes were motivated by a desire to protect potential life. Regardless, the Roe Court (without a single word of analysis) simply found it to be a legitimate government interest.
Of course, the Dobbs Court does not examine the issue.
a. Cherrypicking Roe
The Dobbs majority simply TOSSES OUT women’s liberties on the grounds that abortion is not narrowly mentioned in the Constitution. Then, Alito KEEPS “potential life” as legitimate government interest without analysis.
Normally the government protects people, so it is reasonable to require an explanation for WHY can this can be considered a legitimate interest.
b. No 9th Amendment Analysis
Admittedly, almost any interest the government tosses at a court is accepted as legitimate.
What makes the “free pass” even worse in Dobbs is the majority’s failure to consider using the never-used 9th Amendment. Roe mentions that the D.C. appellate court cited the 9th Amendment as an alternative ground for its decision. Alito just hammers away on the 14th, stating that “liberty” is a word that might not include abortion.
However, women had the liberty throughout USA history. The 9th states that the Constitution can contain unspecified rights. Instead of taking the drastic step (without parallel in USA history), it would have been a perfect time to use the 9th.
The matchup would have been 1) the “unique” government interest of protecting “potential life” with the 2) non-explicit liberty of early-term abortion.
c. The “special” government interest that negates family planning rights
The majority (except J. Thomas) says this decision does not affect all the other non-explicit family planning rights.
This is important because the 14th Amendment’s Due Process Clause is the only place for the rights regarding contraception, bans on forced sterilization, marriage, procreation, child-rearing and education, etc.
It would be devastating if all our family planning rights were eliminated due to not being explicitly, narrowly detailed in the Constitution.
It seems like Alito cannot come up with a reason that abortion should not be protected along with these rights. Instead, this governmental interest, which was never recognized before Roe, is arbitrarily labeled a special governmental interest.
I can just imagine their next argument: “Well, we said it was a ‘unique’ interest, but we never said it would forever be the ONLY interest that could ever cancel a non-explicit Constitutional right.”
Conclusion
Prior to 2022, during the first half of their pregnancy, American women had the liberty to choose if they were going to continue the pregnancy and give birth.
USA history contains no tradition of a liberty restriction. Abortion was not criminalized. Third parties bans were justifiable for medical reasons in 1868. The Dobbs Opinion purposefully avoids these absolutely essential issues.
It is fascinating that the dissent does not address these issues in a meaningful way. Maybe they should have done a better job. Or maybe they saw the asteroid coming, accepted their fate and preserved these issues for another day. Who knows?
The arguments should be part of overturning Dobbs in the courts and legislatures. A slim majority of Americans continue to scratch and claw to fight off this type of horrid authoritarianism that has become interwoven into our country.
Is it fair our two MO Senators tore the country apart, tricked their voters and tried to overturn an election? Should we have to fight off Elon Musk and the goshdarn Rooskies while being in last place for school funding and teacher pay? Should we have to listen to transgender-obssessed Parson-appointed Culture Warrior Treasurer while our legislature is too disfunctional to even pass a few child care tax credits?
Of course, not. But, this type of corruption[9] is how thing operate now. But, in 2020, a few more people got tired of it. In 2022, a few more said they had enough. Keep fighting, and one day you might look up and notice some progress.
Not even Putin can stay in power forever, so, people like the cowardly, fraudulent, preppy, lying, deceptive, divisive Josh Hawley are beatable. Missouri can do better.
Is it fair our elected official #moleg overlords used cowardly trigger laws to pass some of the most extreme abortion laws in the country? Should we have to deal with an AG that is on day 54 of taking a huge, purposeful authoritarian dump all over the voting and ballot initiative rights of Missourians? Of course not.
I wish there were more hours in the day. Time changes slowly, but surely, and everyone’s efforts do make a difference.
The majority of Missourians want reasonable, traditional abortion rights restored. The extreme trigger laws have been unpopular from the start.
The authoritarians know that the levee they have built- to contain the will of the people- is cracking and breaking. I am confident that by November 2024 Missourians will still get a chance to vote and undo this damage.
[1] The article is an exhibit in my ballot initiative appeal. I originally attached it as an exhibit at the trial court level. There was a chance I was going to have to take the stand and give my background info (that I’m over 18, the fact that I’m a MO resident, etc. ). I thought,”Well, this explains why I am here and why I filed the case. It’s basically part of my origin story.” Then, the exhibits ended up not being necessary at trial court.
On appeal, casenet did not give me an option to detach the exhibits. I honestly tried! I think that maybe since it is a writ of mandamus, the exhibits are just procedurally considered part of the Petition. So, the blog post is technically part of the appeal! The fight continues!
[2] AROUND 20 weeks or so. “Quickening” under old USA law was supposedly 16-18 weeks (according to Dobbs; and longer according to others). Casey suggests Roe’s viability line was around 24 weeks. Such an overall CONSISTENT, pretty small window!!
Meanwhile Roberts, who still 100% senselessly OVERTURNS Roe, is the only one to suggest we should not just wipe everything out and go to WEEK ZERO. The Dobbs statute limited rights to 15 weeks.
[3] I swear this is a common fascist arguing tactic: Just angrily restate the facts and draw an irrelevant conclusion. One example: MO just had the most transgender bills proposed in the USA. The #1 argument you heard from them was that we need to ban sex change surgeries for minors. I did not even know until a few months ago that this was already banned in all 50 states. They have no facts on their side, so they just loudly, angrily rehash things. Then they draw conclusions and make policies that have nothing to do with the facts.
[4] Missouri was at #22 on Rehnquist’s Roe dissent list. Then, we jumped to #1 in Dobbs’ chronological list. Our statute mysteriously became listed 10 years earlier and Connecticut’s somehow got later.
[5] From Roe:“When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman This was particularly true prior to the development of antisepsis.”
Lister and Pasteur’s discoveries were “announced in 1867, but were not generally accepted and employed until about the turn of the century. Abortion mortality was high.”
“Modern medical techniques have altered this situation.” Mortality rates for early abortions “appear to be as low or lower than the rates for normal childbirth. Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course, important state interest in the areas of health and medical standards do remain.”
[6] Such analysis does not depend on determining legislators’ motivations. Alito states:”The Court has long disfavored arguments based on legislative motives.” Such inquiries are hazardous and unreliable. What motivated one legislator may not have motivated another.
[7] Ben Franklin was giving at-home instructions for abortion in math books
