The Dobbs Decision and the Resumption of the State-By-State Abortion Debate

Below is my column in USA Today on the reversal of Roe v. Wade. When Dobbs was accepts, I wrote that for thirty years as a television and print legal analyst I have annually downplayed claims of commentators that a given case before the Court was a true threat to Roe. However, with Dobbs, I saw a true existential threat to the decision for the first time. It has now played out as expected with a historic 6-3 ruling to overturn the case.

Yet, some coverage has clearly misrepresented the opinion and falsely claimed that it makes abortion illegal in the United States. Others falsely claim that the justices wrote an opinion opposing abortion. The decision focuses on who must decide this question, not what should be decided. The issue of abortion will now return to the states where abortion is expected to remain legal for most women in the country. Roughly 13 states, however, are moving to end abortion and the decision obviously represents a major change in the rejection of a federal constitutional right to abortion services.

Here is the column:

With the release of the decision in Dobbs v. Jackson Women’s Health Organization, politicians and pundits went public with a parade of horribles – from the criminalization of contraceptives to the reversal of Brown v. Board of Education. In reality, the post-Roe world will look much like the Roe world for most citizens.

While this is a momentous decision, it is important to note what it does and does not do.

The decision itself was already largely known. It did not dramatically change since the leak of an earlier draft. The conservative majority held firm in declaring that Roe v. Wade was wrongly decided: “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

In the end, Chief Justice John Roberts cut a bit of a lonely figure in the mix of the court on the issue. His concurrence did not seriously question the majority view that Roe was not based on a good law. However, he would have stopped short of overturning the decision outright. It is the ultimate call of an incrementalist detached from the underlying constitutional interpretation.

The court now has a solid majority of justices who are more motivated by what they view as “first principles” than pragmatic concerns. From a court that has long used nuanced (and maddeningly vague) opinions to avoid major changes in constitutional doctrine, we now have clarity on this issue. It will return to the citizens of each state to decide.

The court anticipated the response to the opinion by those who “stoke unfounded fear that our decision will imperil … other rights.” The opinion expressly does not address contraception, same-sex marriage or other rights.

That claim has always been absurd but has become a talking point on the left. After the leak of the draft opinion, the New York Times opinion editors warned that some states likely would outlaw interracial marriage if Roe v. Wade is overturned: “Imagine that every state were free to choose whether to allow Black people and white people to marry. Some states would permit such marriages; others probably wouldn’t.”

It takes considerable imagination because it is utter nonsense, though it must come as something of a surprise to Justice Clarence Thomas, given his interracial marriage, or to Justice Amy Coney Barrett, given her own interracial family.

Nevertheless, politicians lined up to lead the parade of predicting horrible consequences. House Speaker Nancy Pelosi warned that “with Roe and their attempt to destroy it, radical Republicans are charging ahead with their crusade to criminalize health freedom.”

Yet, the fact is this decision is closely crafted to address whether there is a constitutional right to abortion and would not undermine these other rights. Thomas alone raised the issue of reexamining cases that protect same-sex marriage, interracial marriage and contraceptive rights. A majority of justices noted that “abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.'”

The court held that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” Much of course has changed since 1973 when Roe was handed down. At that time, most states restricted legal abortions.

Majority of Americans support legal abortions

Now, the overwhelming majority of Americans have supported Roe v. Wade and 16 states have guaranteed abortion, including states such as California, Illinois and New York that hold a significant percentage of the population. States like Colorado protect the right of a woman to make this decision without limitations on the stage of a pregnancy.

Moreover, abortions can be carried out at home, not in a clinic, with the use of abortion pills. It would be difficult for states to prevent access to such pills even if they were inclined to do so, particularly if such access is supported by the federal government.

Yet, 26 states asked the court to overrule Roe and its successor, Casey. With Dobbs, we will now have a new political debate over access and any limitations for abortion. Most citizens are in the middle on this debate.

While a strong majority support Roe v. Wade, they also support limitations on abortion. Polls also show that 65% of Americans would make most abortions illegal in the second trimester, and 80% would make most abortions illegal in the third trimester. (The United States is one of only 12among the world’s 198 countries that allow abortions for any reason after 20 weeks.)

President Joe Biden responded to the opinion by calling, again, for a federalization of the Roe standard by Congress. Even if the votes could be found to pass such a law, it is not clear that it would be upheld by a court that has now returned this issue to the states.

One thing Biden said was clearly true. Abortion will now be “on the ballot.” The justices were indeed motivated by the need for the public to make these decisions and wrote that “Roe abruptly ended that political process.”

The issue will loom large in the upcoming election now that states will decide their own laws, ranging from prohibitions to restrictions to absolute guarantees. And the outcome will turn on the votes of millions of citizens rather than nine justices.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

152 thoughts on “The Dobbs Decision and the Resumption of the State-By-State Abortion Debate”

  1. “When 33% of current male Supreme Court justices have a history of sexual assault, don’t ever be surprised by how they think or what they want.” @arneduncan

    Tweeted by Arne Duncan, Obama’s Education Secretary

    Defamatory?

    Democrats really are pure scum.

    1. The best you have is making lies about sexual assault?
      You’ve gone weeks, not engaging in a debate using facts.

  2. Jonathan: Your post is an attempt to downplay the significance of the Dobbs decision. So a fact check is in order. The decision overturning Roe will severely restrict women’s right in half the country. 13 states with “trigger laws” will go into effect almost immediately. In my state its “trigger law” went into effect yesterday. There is no exception for rape or incest .Abortion will remain legal in only 21 states. Alito and the right-wing of the Court knew exactly what would be the impact of their decision. Alito is a conservative Catholic who opposes abortion. It is ludicrous to argue that he did not have that in mind when he wrote the majority opinion.

    You claim it is “absurd” and “utter nonsense” that many say other substantive due process rights are now in jeopardy. In his concurring opinion Clarence Thomas said: “In future cases, we should reconsider all of this Court’s substantive die process precedents, including Griswold [contraception], Lawrence [gay sex], and Obergefell [same sex marriage]”. Thomas intentionally left out Loving v Virginia because he is married to a white woman–a definite personal conflict of interest. He doesn’t want he and his wife arrested if they travel to a state that may make inter-racial marriage illegal. It’s unlikely to happen but Thomas isn’t taking any chances because he understands that other rights might be in jeopardy because of the Dobbs decision. What does Thomas understand you don’t? The Court’s legitimacy is in question because of Thomas’ nonsensical and selective application of substantive die process rights. Since he was appointed to the Court Thomas has told his clerks: “The liberals made my life miserable for 43 years [a reference to the Anita Hill accusations]. And I’m going to make their lives miserable for 43 years”. Thomas is motivated by vengeance, not the law and precedent.

    But, yes, abortion will remain legal in 21 states. That is little solace for women who live in the 13 states with “trigger laws” that will go into effect almost immediately. In my state our “trigger law” went into effect yesterday! Wealthy and middle class women will be able to travel to abortion friendly states. The real impact will be on women of color who don’t have these resources. Tucker Carlson is outraged that corporations all over the country are offering to pay the travel expenses for employees who need an abortion. Corporations like Citigroup, Starbucks, Microsoft, Disney, Apple, Netflix, etc. are stepping up to protect the right to abortion. The list is too long to recite here.

    And the DOJ is also acting to protect women’s reproductive rights by declaring that states can’t ban FDA-approved pills used to end a pregnancy. 54% of all abortions are from abortion pills. That number is likely to increase substantially. Garland also stated: “Women who reside in States that have banned access to comprehensive reproductive care must remain free to seek that care in states where it is legal. Moreover, under fundamental First Amendment principles, individuals must remain free to inform and counsel each other about reproductive care that is available in other states”. That should appeal for your support for “free speech” rights. Garland has laid down a marker. Any state that makes it illegal to travel out of state for an abortion or prohibits access to abortion pills will find themselves in court. Are you listening Mississippi?

    The Q is how will states with abortion bans actually enforce them? Stop pregnant women at the airport? Open the mail of every woman of child-bearing age? Enforcing abortion bans will be a nightmare to enforce. The thought, as you often say, is “breathtaking”. All this might have been avoided had the majority listened to Chief Justice Roberts. But Alito and Thomas are on an ideological mission that has nothing to do with “Equal Justice Under Law” inscribed over the entrance to the SC building. Along with its decision in the NY gun control case life the Court has just made life much more dangerous for pregnant women and a lot of other Americans. The only winners are lawyers who will be spending a lot of time in state courts fighting abortion bans. That’s probably one reason you support the Dobbs decision!

      1. Entirely Moot:

        Freed black slaves must have been compassionately repatriated per the Naturalization Act of 1802 which was in full force and effect in 1863.

        —- Jimmy, they’re not supposed to be here, by law.

        Exactly which laws shall Americans obey???

        Dang! W— — —- –!

        Some Americans are so determined to give their country away, they can’t see the facts, they’re oblivious.

    1. Corporations find it is cheaper to pay for employee abortions than maternity leave, eh?

    2. Now you can begin lobbying your local elected state representatives. See how our democracry works?

      1. You say, “democracy,” meaning “free stuff” and welfare state.

        Ben Franklin, one of the guys who made this country and its Constitution, said, “Republic.”

        The American Founders gave Americans a restricted-vote republic.

        Voter criteria were expected, intended and legislated to be applied by States.

        Lincoln’s denial of secession was unconstitutional, therefore, Karl Marx’s “RECONSTRUCTION Amendments” were, in turn, unconstitutional.

        Karl Marx’s letter of congratulation and commendation to Abraham Lincoln, referenced Lincoln’s efforts toward the “…RECONSTRUCTION of a social world:

        https://www.marxists.org/archive/marx/iwma/documents/1864/lincoln-letter.htm
        ____________________________________________________________

        “A [one man, one vote] democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.”

        – Alexander Tytler (Goodreads)
        _________________________

        Merrian-Webster

        republic

        (1) : a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law

    3. For you Dennis…..

      ‘Just repeat one simple phrase:

      “I support the overturning of #RoevWade because Black Lives Matter.”

      1. “I support the overturning of #RoevWade because Black Lives Matter.”

        LOL No Kidding, have you seen the prices Moloch is paying for Yet to be Born Human Baby Parts Lately. And you thought Gas & Tampons is High!

        BTW: I had no idea until a few years ago those Evil M’Phers were Selling Aborted Human Baby Parts to people like Dr Fauci, Bill Gates etc., & god knows all of those involed.

        I thought there were Laws against those type Aholes. Why are they still walking around as Free Men?????

  3. Some posting on this blog are comparing not being able to get an abortion to slavery. The slaves did not put the shackles on themselves. They did not sail the ships that brought them to America. Imagine that they would have had a pill that would release them from the shackles but they wouldn’t take the pill. Imagine that they had a sharp file and almost four months to file through their shackles but they refused to use the file and then complain that they were still slaves. What if in some instances they had six months to use there file but they still clamored that they didn’t have enough time to saw through the soft metal? Would we then conclude that these slaves are responsible for their own dilemma? Would we not find their complaints without merit when we discovered that they first placed the shackles on themselves and when given ample opportunity to remove them they failed to take their self imposed slavery seriously? They call for the rest of us to save them when they could have easily saved themselves.

    1. Some posting on this blog are comparing not being able to get an abortion to slavery.

      It’s an emotional and ignorant comparison. Slavery begins with a violation of rights and ends when those rights are restored. Pregnancy may or may not begin with a violation of rights. In all cases where our constitutional rights are violated, we are just in getting them restored, within constitutional limits.

  4. So the bottom line after all the commentary on the blog if you wish an abortion it’s still available to you? Now employers and some businesses are offering accommodation for someone to have an abortion. The decision is still left to the woman.

    Gas is still high, crime rampant, the border open, illegals will stress our welfare system, your 401k a 201k, recession is real, our election process is corrupted and the administration is clueless. Now can we get to work on the things that affect the majority of Americans?

    1. That’s the Putin recession, caused by Putin inflation. We will end Putin inflation by sending more money to Ukraine, the launch pad Putin will use to invade Europe and further destroy our economy.

    2. “if you wish an abortion it’s still available to you?”

      In many states, the answer is: no.

      For example, Arkansas’s anti-abortion law is already in effect and has a sole exception: to save the pregnant woman’s life. If a 13 y.o. is raped, she cannot get an abortion in Arkansas.

      1. Aninny:

        “For example, Arkansas’s anti-abortion law is already in effect and has a sole exception: to save the pregnant woman’s life. If a 13 y.o. is raped, she cannot get an abortion in Arkansas.”
        ***********************
        Yeah, it’s the baby’s fault for the criminal conception. And the punishment is capital punishment. Do you ever think anything through?

        1. a) As a ninny lawyer, you demonstrate that you don’t know the correct meaning of “capitol punishment.”
          b) Develop an artificial uterus and a means of transplantation, and then you can save all the rapists’ offspring that you want, but it’s immoral to force a girl or woman to carry her rapists’ baby.

          1. My wife was raped in 1984. She was given the morning after pill within hours.

            The largest flaw in the left’s abortion arguments is this nonsense that After you have pulled the trigger and the bullet is on its way to kill the victim, you are free to change your mind and call it back.

            Even a moron understand that your “reproductive freedom” ends with the birth of a child.

            It is SELF EVIDENT that at some point in time you can no longer undo the decisions that you have already made – whether deliberately or cassually.

            Dobb’s does not take away that freedom, it just changes the inevitable point at which that freedom ends.

            Rowe was wrongly decided – Dobb;’s is no better.
            But crocodile tears from those who seek to force an experimental vaccine on our children is rich, and hypocritical.

              1. Thx, this was a long time ago, and many good and bad things have happened since.

                We lost nearly a decade of our lives.

                Eventually my wife decided to go to law school. She went to University of Pennsylvania, where she gradulted with honors and had many accomplishments – law review editor, Keety cup winner, ….

                But just before she was to start – she was diagnosed with cervical cancer – with near certainty was the consequence of the rape.
                She decided she could not allow that to put off her life and scheduled surgery for christmas break.
                Then the very fist day, in the very first class the very first case that was being discussed by the case was Her lawsuit against the owner of the building that she was raped in.

                She did so well at UoF law, she came very close to getting a clerkship with a federal “feeder judge” – that was an almost guaranteed ticket to clerk for a supreme court justice.

                She subsequently clerked for a federal judge – and Resigned 3/4 of the way through her clerkship – because the judge made an unethical demand of her regarding a case.
                She clerked for a local judge, became a public defended, is currently the head of the local appellate division, and one of the best appellate attorney’s in the state.

                Possibly as much as 3/4 of her cases are “sex crimes”.
                She has participated directly or indirectly in two cases that resulted in “exonerations” – placing two people on the national “exonerated” list.

                She is close to retiring, and currently almost complete a masters in “Restorative Practices”
                This involves getting criminals and crime victims to work with each other to rebuild their lives – again mostly sex offenders.

                I am very proud of my wife. Though that is just a part of our story – there are many other both good an horrible things in our lives.

                One of the things we have learned is it is irrelevant whether the horror inflicted on you is done by others. It is irrelevant whether you are a victim.

                In the end it is YOUR life and only YOU can fix whatever is wrong with it and make it good.

                No matter what horror is somehow inflicted on you – winning the lottery will not correct the problem.
                We would all like criminals to come to justice – that is important to thwarting anarchy, but getting justice does not fix the damage to your life.

                Whether you are a drug addict or a rape victim – or both, no one else can fix your life.
                No one else can make you whole.
                No one has a magic wand to undo whatever damage has been done to you.

                You must do that yourself.

                Having been through this and other horrible events in my life – I can fully understand those who can not get past the bad things that have happened to them. I am not saying that many of us are not “entitled” to deus et machina – to the repair of our damaged lives through the wave of a magic wand.

                But it is not going to happen. Whether through no fault of your own or because of your own mistakes your life is a mess – no one can fix that but you.

                Unfortunately you can not escape the bad things that happen in your life – they are part of your life for ever. The wrong weather, certain days of the years, smells, certain songs, can make real for a bit what you hoped was gone forever.

                But you can retake your life. And only you can do that.

          2. Think about your artificial uterus argument – because it reflects and important concession on your part – and is ultimately coming.

            You have ceded that if such an artifical uterous existed – women could remain free to remove the fetus from the body, but not to end its life.

            1. FFS, idiot, when I say “Develop an artificial uterus AND a means of transplantation,” it means you need both, not just the first.

              1. It means that you accept that the woman has a right to remove the fetus, but not a right to kill it.

                Viability preceded conception – eventually, it is only a matter of time.

                You do not seem to grasp that your hypothetical cedes the entire debate – at some point in the not to distant future.

                1. Idiot John: if the only way to remove it prior to viability is to kill it, then the pregnant woman has a right to kill it. You do not seem to grasp this, and therefore no, my hypothetical does NOT cede the point. Also, don’t pretend that my personal opinion about is “the entire debate.” Other people can have different opinions than me.

                  You only have to remove it without killing it once there is actually a way to remove it without killing it AND without doing any longterm harm to the woman. That doesn’t currently exist, and you have absolutely zero knowledge of when it will become possible, despite your desire to pretend to know that it’s “the not to [sic] distant future.”

                  Good luck inventing a way to remove an embryo or previable fetus without killing it and without doing any long-term harm to the pregnant woman.

                  1. Ad hominem is not argument.

                    You do not seem to be able to read or reason.

                    This is a debate over rights and the law. The consequences of removing a fetus at anytime – pre or post viability might be the death of the fetus.
                    Neglect of an infant after birth will lead to death.

                    All “viability” means is point at which with current medical technology there is a chance the fetus can survive – with massive intervention outside the woman’s body.

                    Row was bad law, so was Casey, Dobbs is not better. Science should never have anything to do with the laws we create.

                    Rowe and Casey make that Clear – Viability is a moving target and inherently means law hinging on it is invalid.
                    Rowe used Trimesters – but viability was implicit in Rowe and an obvious error. Casey made viability explicit.

                    The right to remove the fetus is ABSOLUTE – that right exists pre and post viability.
                    That right is to control of your own body – and has nothing to do with abortion – much less viability. ‘
                    It is the same right that SHOULD have thwarted government vaccine, mask, and testing mandates.
                    It is the right Justice Holmes got wrong in Buck V. Bell.

                  2. You can have whatever opinions you wish. Including wrong ones.

                    You do not appear to understand rights at all.

                    There is no right to kill anything.
                    Though you always have the liberty to kill things.
                    Some killings subject you to sanctions.

                    You have a right to self defense – excercising that right sometimes results in a justified killing.
                    But there is no Right to kill.

                    The woman has the right to control of her body – excercising that right SOMETIMES results in killing.
                    But there is NEVER a right to kill.

                    There is no right to an abortion, there is no right to life.

                    By framing the debate incorrectly we confuse ourselves.

                  3. “You only have to remove it without killing it once there is actually a way to remove it without killing it AND without doing any longterm harm to the woman. That doesn’t currently exist, and you have absolutely zero knowledge of when it will become possible, despite your desire to pretend to know that it’s “the not to [sic] distant future.””

                    None of this is relevant to the question of rights.

                    Rowe and Casey found rights that do not exist and Dobbs missed one that does.

                    Get the actual rights correct and determining the constitutionality of the law is easy.

                    “Good luck inventing a way to remove an embryo or previable fetus without killing it and without doing any long-term harm to the pregnant woman.”
                    Not, my job and not relevant.

                    Your the one who thinks viability – which is a medical construct is relevant.

                    If someone is dying of cancer – can you shoot them in the head ? they are dying anyway.

                    There is no right to kill. The viability of what you are killing is irrelevant.

                    You are however free to excercise ACTUAL rights even if that results in death – so long as you do not go beyond exercising your right where death is an inevitable consequence to actual killing.

                  4. If it is my opinion that you should be killed – and I can persuade 51% of the country to share that opinion – does that create a right to kill you ?

                    The social contract from which the legitimacy of government flows, rests on the concept of free will, individual liberty.

                    Ultimately from that follows government – and its limits, as well as constitutions and law.

                    Sometimes it requires a great deal of thought, debate, even experiment to get it right,
                    But ultimately this is not a matter of Opinion.

                    Government is limited among many reasons because the domain of government is what is demonstrably true. If something is a matter of opinion – then we are not free to use FORCE to impose it on others.

                    What is actually a opinion is the domain of individuals.

                    As an aside I would note that all opinions are not equal. Most are just wrong, Of those that are not absolutely wrong most of the remainder are probably wrong. Few opinions are probably right. This is the nature of truth.

          3. Acowardly:

            “a) As a ninny lawyer, you demonstrate that you don’t know the correct meaning of “capitol punishment.”
            b) Develop an artificial uterus and a means of transplantation, and then you can save all the rapists’ offspring that you want, but it’s immoral to force a girl or woman to carry her rapists’ baby.”
            *****************************’
            1. Well, maybe so but I do know how to spell it:
            cap·i·tal pun·ish·ment, /ˈkapədl ˈpəniSHmənt/ noun
            the legally authorized killing of someone as punishment for a crime.

            2. Oh and since you take the position that only those with the organ at issue can comment about its use, how can you possibly comment here with “Scarecrow Disease”?

            1. Thanks for correcting my typo. Will you also be pointing out to John that Roe isn’t spelled Rowe?

  5. It’ll take a while for this to shake down. Unlike most of those who comment on this blog, I was actually ALIVE in 1972 and remember the furor at the time (not really that much.) As it turns out, abortion had already been declared legal in many states, the most liberal – and most Catholic – of course before the Roe v Wade decision. In my opinion, the most important aspect of this decision is that it repudiates the opinion of the Warren Court that set the precedents that the Fourteenth Amendment, which was voted in while half the country wasn’t able to vote on it, established a number of non-existent rights. No, it didn’t – it stipulated that recently freed slaves were citizens and had the rights of citizens. It also prohibited states from imposing laws that would prohibit citizens from exercising their rights as citizens, namely those spelled out in the first ten amendments and the right to vote to choose their representatives in government. As it is, about half the women in the country are opposed to abortion and most men really don’t care. There are a lot of “rights” that are non-existent, such as “the right to choose” and “the public’s right to know.”

    1. Actually, many men do care. Some are afraid of being forced to pay child support, like Hunter Biden’s hooker who chose not to abort his baby. Or Jeffrey Zoomin’ with Toobin who had a long term affair with Casey Greenfield who got prego and he wanted her to abort the baby, but she gave birth to his love child in 2009 and Toobin behaved no better than the scummy Hunter Biden. Zoomin’ w Toobin was forced to pay child support after a DNA test proved he’s the baby daddy.

    2. I appreciate your experience, but respectfully, I think most of us here were alive in the 70s with many far older than that. Most of us know who Bea Arthur was.

  6. “The court now has a solid majority of justices who are more motivated by what they view as “first principles”.”

    I see no evidence for this. According to Alito if something is not explicitly stated it must be “‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty’”.

    Pregnancy issues are in fact deeply rooted in the Nation’s history through the common law relied on up to this day. Contraceptives and gay marriage are not.

    Under common law abortion performed before ‘quickening’ was not an indictable offense. And let’s not pretend that the people of yore thought something magically popped up over night at the time of quickening.

    Alito and the others didn’t rely on any “first principles” as they them. They focused on an issue they care about and worked backwards from there. Precisely what judges are not supposed to do.

    They don’t care about gay marriage or contraceptives, so they will not use “first principles” as they see them in those areas. They will not take the law where it leads them as they see it. They are an issues oriented group that doesn’t rely on the law. Not that the liberal justices aren’t as well.

    So what we’ve got here is a mini version of Congress doing party lines votes.

    1. I believe I understand that the court wanted to reverse tis decision in order to remove a false/incorrect ruling for the sole sake of removing the tarnish of activist justices swayed by public opinion 50 years ago. Tis issue really isn’t about abortion, but states rights, something the left demanded when it came to slavery, secession, and segregation but abandoned when their slide into socialism caused them to easily forget that we are a federal republic of states and not a democracy of national citizens.

      1. “states rights”

        There is no such concept.

        Governments do not have rights. Only individuals have rights. Governments have police powers, whose use are strictly limited by the Constitution.

        1. You are clearly deficient in your understanding of both history and the constitution but are filled with misinformation and propaganda – so sad, you must be recently (within the past 40+ years) inculcated by the left’s education industry.

          1. “You are . . .”

            Do you have a reasoned argument — or just an emotional ejaculation of ad hominems?

          2. You are clearly deficient in your understanding of both history and the constitution but are filled with misinformation and propaganda – so sad, you must be recently (within the past 40+ years) inculcated by the left’s education industry.

            I seem to recall Sam telling us he was an academic at some point in time. Culinary school, I believe. Still, go easy on Sam. Every family needs a barking chihuahua

            1. I have a one-eyed half chihuahua half rat terrier and yes, there is a great similarity now that I think about it.

      2. They expressly stated this case was about abortion and nothing else — at least 4 of the 5 did. If your belief were correct, they would be obliged to apply the same legal principles to other issues. They have stated they’re not going to do that.

        1. Did you not understand what Thomas ans Alito were saying about the constitution? Please go back and take a course in constitutional law from someone who respects the constitution rather than despising it.

          1. I understood it perfectly. They’re going to apply their understanding of the Constitution when the feel like it. And when they don’t they won’t.

            1. “They’re going to . . .”

              Precisely!

              On certain issues, the Right (as with the Left) is infected with: The ends justifies the means.

        2. “If your belief were correct, they would be obliged to apply the same legal principles to other issues. They have stated they’re not going to do that.”

          Then they’re hypocrites.

    2. “They will not take the law where it leads them as they see it.” Huh? The law the Dobbs court is looking at is the Constitution. The law the Roe court was looking it was entirely in their imagination. They didn’t even attempt to anchor the opinion in the law. One of the most poorly reasoned cases and audacious power grabs in SCOTUS history was overturned. This is rightly to be celebrated by anyone who respects the rule of law and the Constitutional principles of a liberal democratic republic.

      1. “They will not take the law where it leads them as they see it.” Huh?

        They said it right out in the open. They’re not going to take the law where it leads them regarding Griswold and Obergefell. Those issues don’t bother them. So they’re not going to apply the same Constitutional principles to them.

        1. Abortion affects the life of a person. That makes it different than Obergefell et al, and ruling the way they did does not make their ruling subjective or made up or non-Constitutional. Where is the legal basis for Roe? From its very issue some overwhelming number of law professors thought it was a terribly based decision (maybe they were more honest back then). That two lives are involved in abortion makes it different, and is the distinction they were making in the opinion. Thomas extended his discussion to indicate that other cases relying on substantive due process might also get review. That, too, is a line of thought entirely consistent with constitutional law. Commenters here are merely trying to turn Dobbs into what Roe was, and the justices who decided this to be exactly what Democrats have sought for years: the court should merely be a super legislature that ratifies whatever the congress or president wants (if they are liberal Democrats).TYhe fact is that the pressure on the court to do whatever congress wants has grown exponentially especially because of Roe, which madde the court into a legislative body of its own, makiing law up to accomplish what it thought to be a good social end.

    3. “They will not take the law where it leads them as they see it.” Huh? The law the Dobbs court is looking at is the Constitution. The law the Roe court was looking it was entirely in their imagination. They didn’t even attempt to anchor the opinion in the law. One of the most poorly reasoned cases and audacious power grabs in SCOTUS history was overturned. This is rightly to be celebrated by anyone who respects the rule of law and the Constitutional principles of a liberal democratic republic.

  7. All of the rioting, chest-beating, death threats and the politicians’ and commentators’ demands to change radically the Supreme Court is over what? With few exceptions, the pro-abortion forces are committed to protecting nothing more than a boy’s and girl’s “right” to have unprotected sex without consequences. With the widespread availability of pregnancy prevention methods, including a morning after pill, and the fact that virtually no one objects to terminating pregnancies that imperil the mother’s health or in cases of rape or incest, it really is that simple. And, it clearly reveals, yet again, how that side of the political divide is willing to sacrifice all if their demands are not met even though the Supreme Court’s decision will have little if any effect on the availability of abortions in all but a handful of states.

    1. “virtually no one objects to terminating pregnancies that imperil the mother’s health or in cases of rape or incest”

      I suggest that you look at the actual wording of every state’s law. You’ll find that several states do not have exceptions for rape and incest, and some only have an exception for the mother’s life but not for her health.

      Odd that you consider ~50% of states to be just “a handful of states.”

      Take a look at the map: https://twitter.com/arlenparsa/status/1540374939231977473

  8. “The court now has a solid majority of justices who are more motivated by what they view as “first principles” than pragmatic concerns”

    That’s BS. The Court didn’t rely on “first principles” in deciding the recent gun case or in deciding Heller. There are plenty of other examples of their inconsistency.

    A majority of the justices are motivated by deciding what they want and making a legal excuse for it.

    1. Perhaps, you are talking about the Justices who lean left? The Justices on the right were consistent, and even the late RBG had a great deal of agreement with them on this issue. Amendment 2 clearly states the right to bear arms. No amendment exists that provides the federal government the right to usurp from the States the people’s right to determine abortion laws.

      The door is open for you to add another amendment to the Constitution, and if such an amendment passes, I am sure the Courts will consider it the law of the land.

  9. Justice Holmes (the commentator above) has a truly bizarre view of the world. The churches and Catholicism were here long before the Republican Party. Besides the Protestant and Catholic Churches are in many ways split on the issue. If anything Justice Holmes (the commentator) argues more like an authoritarian than a true believer in democracy. If my state argues the point of abortion and and makes a decision by legislation or referendum, then I will live with it. That is what the democratic process is. Advocacy, compromise, occasional outright wins and sometimes heart breaking losses but your voice is heard and your vote gets counted (hopefully). I have been on the winning and losing side in multiple presidential campaigns and never feared for the country and accepted the results. Until 2020. The election I accept but the result makes me truly fearful.
    I have far more confidence in the common people than any others and I am content to live with the decision in their hands. Frankly if each state really wished to do the peoples bidding, then I would suggest that they set up a 2 stage process with a list of possible abortion statues covering a wider range. Let the people vote and then take the top 2 vote getters and have a runoff. Even simpler would be weighted voting with each voter casting votes in order of preference of multiple possible choices and having 1 referendum. Or just the legislative process. I would suggest even NY and California try the referendum with multiple choices, They may find the people to be less radical than the legislature.

    1. “I have far more confidence in the common people . . .”

      But not in the common *individual*. Your “confidence” is in the so-called wisdom of the majority — as in: If the majority (in a particular state) believe that something is right or wrong, then it is.

      Truth is not a function of a collective consciousness. And neither are rights.

    2. “I have far more confidence in the common people than any others and I am content to live with the decision in their hands. “

      I’d rather entrust the government of the United States to the first 400 people listed in the Boston telephone directory than to the faculty of Harvard University. __William F. Buckley, Jr.

  10. “Even if the votes could be found to pass such a (national) law, it is not clear that it would be upheld by a court that has now returned this issue to the states.” – J.T.

    Wouldn’t that be a brazen Court defiance of the Constitution?

    Article VI, Paragraph 2 of the U.S. Constitution is commonly referred to as the Supremacy Clause. It establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions.

    For a Constitutional law professor, you’re really wading into the weeds. I immediately recognize your style of opinionated journalism here as alarmist sensationalism.

    1. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” I know it is a quaint outdated question, but where exactly in the Constitution is the federal government given the power to regulate abortion?

      1. Multiple amendments leave that to women, as part of more general privacy protections, liberty protections, protection against involuntary servitude, …

        “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

        “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”

        “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

        “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

        If you’re now going to complain that the word “abortion” doesn’t appear, lots of words don’t appear in the Constitution. For example, “privacy” doesn’t appear, but you still have a right to privacy. The phrases “Electoral College” and “congressional districts” do not appear, yet they’re required by the Constitution. The list of words that don’t appear in the Constitution is long, and that does not imply that the Constitution says nothing about the underlying concepts.

        People have a right to bodily autonomy. Women should not be forced into involuntary servitude in service of an embryo. You cannot even be forced to donate blood to save someone’s life, which is extremely simply, safe, and brief, but some think it fine and dandy for a woman to be forced to donate the use of her body for 9 months.

        1. Regurgitating the basis for Roe is a Fool’s Errand….the Dobbs decision over turned Roe.

          Accept it and move on.

          1. No doubt you’d also tell slaves to “accept it and move on.”

            I believe the ruling is wrong, and in legal, peaceful ways, I will fight for women throughout the country to have the right to an abortion prior to viability, and after if their life or health is endangered or the fetus is newly diagnosed with a condition that’s incompatible with life after birth.

              1. And many people didn’t accept it. If you’re unaware of the abolitionist movement in the US, the Underground Railway, etc., then your education is woefully deficient.

            1. You have that right. Now that Dobbs has ben rendered I’d suggest your efforts be best directed toward campaigning and lobbying state officials.

      2. “I know it is a quaint outdated question . . .”

        Yet, if one grasps the purpose of the *U.S.* Constitution, that is precisely the question to ask.

        And the religious right wants to evade that question (on *this* issue), because they have no answer.

        1. “Yet, if one grasps the purpose of the *U.S.* Constitution, that is precisely the question to ask.”

          Why? What purpose are you talking about that is written in the Constitution?

          The religious right wishes to ban abortion. That is not the intention of the Supreme Court, which sent that decision back to the states and people where it belongs. The religious right loses in states like Colorado.

          Your issue appears to be a different one of individual liberty over the state and the federal government. The rest confuses your purpose. I think the Chinese menu doesn’t work for your purposes. Column A The Constitution; Column B Libertarianism unrestricted.

          1. “What purpose are you talking about that is written in the Constitution?”

            That the Constitution limits government’s use of its police powers — *any* government: local, state, federal. That America is not a loose coalition of fiefdoms. That unless the Constitution expressly authorizes a particular government action (e.g., control over a woman’s body and medical choices), then that action is unConstitutional.

            1. Just laws are rooted in the security of rights. 100% bans on abortion won’t stand because they don’t restore or protect rights proven to have been violated by rape, incest, or to protect the life of the mother.

            2. Sam, I don’t see your point. The Constitution doesn’t limit, rather it grants powers to the federal government, leaving the rest to the states and the people.

      3. With your strict interpretation of the 10th Amendment, we would not have:
        – the Interstate highway system
        – weather satellites
        – beat the Russian space program to the moon
        – the best epidemic-fighting agency on the planet (CDC)
        – the best scientific research infrastructure on the planet
        – the best bank regulation system on the planet
        – the ability to catch organized criminals who operate across state lines and internationally
        – environmental cleanliness (instead of the choking air quality of Beijing)
        and hundreds more.

        Let me explain the concept of federalism that effectively overtook the 10th Amendment as soon as the ink was dry in 1788.

        There are government functions that can be 100% handled effectively by the states, and where there isn’t irreconcilable conflict created among state by virtue of different law. The federal government should stand clear in those areas (which are vast).

        There are areas where states are not fully effective on their own. Take law enforcement. Before the FBI was created, gangsters and bank robbers evaded arrest by crossing into another state. The limited geographic jurisdiction of the states gave criminals an advantage, and it was taken advantage of. Creating a national crime-fighting organization took away that advantage and strengthened law enforcement. How many states could have regulated a national telephone network? A space program? The interstate highway design?

        We are headed smack into conflicting state law over abortion. It will involve interstate travel, the USPS (pills), and civil lawsuits pitting TX citizens against clinics in NM and CA. It will cause an ongoing legal mess. How can those conflicts be solved?

        That weighs for a uniform national abortion rights and responsibilities law. It’s an appropriate application of federalism. Because irreconcilable conflict will weaken the ability of states to manage the issue effectively.

      4. Tommy, I predict Congress will use the Commerce Clause to justify national abortion legislation. Millions of people will now be traveling state to state to obtain abortive services. They have a window of time to do this before the midterms change the seats in Congress.

      5. The federal government regulates drugs and the USPS. What gives states a right to deny women access to federally-approved abortifacient drugs prescribed by a licensed doctor and sent through the mail? People get prescribed drugs through the mail all the time.

        1. Presumably state medical boards, which already have a lot of say over what medical procedures are performed, and which drugs are dispensed within their respective states.

    2. The Supremacy Clause does not render the 10th Amendment null and void. In fact it was largely put in there to that the clause wasn’t interpreted to be a blank check for Washington.

  11. “In reality, the post-Roe world will look much like the Roe world for most citizens.” Says the guy who cannot get pregnant from the sex act.

    1. No he can’t get pregnant but until just recently he could get drafted and sent off to war to die horribly in some ditch in a misbegotten country or went down in a ship that rests 20,000 feet below the surface, never to come home. Men still are the only ones to register for selective service and would die in massive numbers if we were in a total war again. Even in nations where men and women serve in the armed forces together, men suffer the vast majority of deaths and disability. We all have our roles to play.

  12. Democrats HATE federalism.

    The White House, as we speak, is ordering ALL executive branch agencies to get involved with elections. Despite the clear constitutional language that leaves the running of elections up to the States.

    Abortion was always a state/local matter.

    1. Except where it suits their purposes. Look at the wailing concerning the recent decision on NY City’s gun control laws. Here they claim Federalism to override a specific (2nd) amendment they don’t like.

    2. Democrats Progressives HATE federalism.

      Democrat Progressives however have taken it further by weaponizing their massive bureaucracy against their political enemies and deploying their Marxist foot soldiers to terrorize citizens.

      Dobbs is to the 100+ year progressive movement what the visible iceberg was to the Titanic.

      This does not mean Republicans will save the republic. As Bongino frequently says: While Republicans may not be the solution to all of our problems, Democrats are certainly the cause of all of our problems.

  13. Back in 1989 at UT law I had a brilliant professor in CON LAW, Levinson, I think his name was. We spent the whole semester studying pre civil war slave cases, Dred Scott, etc. The class was grumbling, what does this have to do with current Constitutional Law? He never once tied this antebellum syllabus into the current day. Then we walked into the final exam…. Roe has been overturned. Certain states have legalized abortion. Other states outlawed it, consider it murder, and consequently outlawed the use and possession of abortion drugs. A shipment of abortion drugs travels from one “abortion” state to another “abortion” state, but travels through a non-abortion state. The shipment is stopped and seized in the non-abortion state. Discuss.

    1. “Wisdom is the principal thing; therefore get wisdom: and with all thy getting get understanding.”

      King Solomon gave this advice three thousand years ago.,

      My father was less eloquent when he told us “Engage your brain.”

      The mass hysteria on full display television, radio, and social media is maddening.

      After a battle, the combatants write an after action report. The strategists assess the consequences, derive a new strategy and move on, better prepared. That is how it has worked successfully in the past when reasonable minds meet honestly and civilly.

      So now the issue is before the public (as it should be) and many states already have laws on the books wherein nothing will change come Monday morning.The states where the legislative branch did not get ahead of the issue will have their work cut out for them. Those who live in states that allow abortion to the last moments before birth also have their work cut out for them.

      The sun will rise, the world will continue to rotate and life will go on for those fortunate enough to have been born.

  14. The Republicans would be crazy to try and federalise the abortion question. It would lose them lots of votes in Presidential elections they would otherwise have and gain them nothing. They also need to be careful in how they campaign on it in Senate and House races. The best thing would be for them to say they oppose national legislation on the issue and believe it is up to the States to decide. In State-level campaigns, the candidates will need to take a position, and that will vary by State. Most Americans in most states appear to think that abortion should be allowed in the first trimester and limited thereafter, with exceptions for rape, incest and genuine health of the mother. Straying too far from this position will lose votes.

    At the national level, Republicans must keep the focus on the economy, energy, the border, crime and foreign policy. They should not let the Democrats define them as the party of pregnancy.

  15. In the end, Chief Justice John Roberts cut a bit of a lonely figure in the mix of the court on the issue.

    As I read the SCOTUS decision, what stuck out the most was how John Roberts is not a leader. Terrible look for a Chief Justice, particularly during these leaderless times. See the Alito draft leak fiasco and the lack of consequences therein. So the divisions on the court will only worsen with the addition of the “Im not a biologist” dishonest jurist.

    The court now has a solid majority of justices who are more motivated by what they view as “first principles” than pragmatic concerns. From a court that has long used nuanced (and maddeningly vague) opinions to avoid major changes in constitutional doctrine, we now have clarity on this issue. It will return to the citizens of each state to decide.

    SCOTUS has been a charlie foxtrot for decades, preceding Roe v Wade. Hugo Black’s judicial activism, “establishment clause”, Everson v. Board of Education, Earl Warren’s SCOTUS was a time of infamy, e.g. Engel v. Vitale. The 20th Century SCOTUS history has dismantled the United States as the Founding Fathers had hoped for future Americans, e.g. George Washington’s Farewell Address

    The Left have no intentions (or self-discipline) to allow democracy to settle these moral issues, i.e. the will of the people in each State. Like Hugo Black, they are about power. Hugo Black was a bully to the n-th degree, e.g. relations with SCOTUS Justices Robert H. Jackson and Abe Fortas, threatening President Harry S. Truman after the death of Chief Justice Harlan Stone, etc. Hugo Black was the quintessential authoritarian, a Democrat through and through.

    Virginia pro-life pregnancy center vandalized hours after Roe ruling
    The vandals left distinct messages with their graffiti, including “If abortion ain’t safe you ain’t safe!” and a tag reading “Jane’s Revenge,” a reference to the pro-choice extremist group which has taken credit for similar attacks on pro-life centers nationwide.

    Virginia Governor Glenn Youngkin is now the ostensible national leader on the ProLife issue, and the calm, thoughtful, measured moral leader that Merrick Garland, Nancy Pelosi, Joe Biden, Kamala Harris, et al, have all abdicated.

    Governor Glenn Youngkin
    @GovernorVA
    There is no room for this in Virginia, breaking the law is unacceptable. This is not how we find common ground. Virginia State Police stands ready to support local law enforcement as they investigate.

    https://twitter.com/governorva/status/1540864444863053824

    The next several months, culminating in November elections, will decide everything.

    1. Correct, CJ Roberts is not a leader. He is a weasel. The majority demonstrated true judicial courage in the face of extreme intimidation. Then Roberts showed what a weasel he truly is. “I concur. But here’s all the reasons why I dissent.”

      1. “Correct, CJ Roberts is not a leader. He is a weasel. The majority demonstrated true judicial courage in the face of extreme intimidation. Then Roberts showed what a weasel he truly is. “I concur. But here’s all the reasons why I dissent.”
        *******************************
        He’s a Chamberlain when a Churchill is needed!

  16. Returning the issue to the states so that the citizens of that state and their representatives can decide. I think that’s called democracy Charlie Brown.

      1. Really? Well, we are a Republic and not a direct democracy, as the Founders were well aware of the fate of such in the past. But if not,, then why do all the D’s cry about the end of democracy if we are not one?

        Still, Jefferson would disagree with that thought. “The first principle of republicanism is that the lex majoris partis is the fundamental law of every society of individuals of equal rights; to consider the will of the society enounced by the majority of a single vote as sacred as if unanimous is the first of all lessons in importance, yet the last which is thoroughly learnt. This law once disregarded, no other remains but that of force, which ends necessarily in military despotism.” –Thomas Jefferson to Alexander von Humboldt, 1817. ME 15:127

        And again:

        “I subscribe to the principle, that the will of the majority honestly expressed should give law.” –Thomas Jefferson: The Anas, 1793. ME 1:332

        And still more: The Majority cannot trample the rights of the minority.

        “Bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate would be oppression.” –Thomas Jefferson: 1st Inaugural, 1801. ME 3:318

        That is your history lesson for the day

            1. Mr. Idiot iowan2 doesn’t understand that the fact we’re both a democracy and a republic isn’t pedantic.

  17. Let’s face it there is no debate. The Republicans have bought the Churches, the Roman Catholic hierarchy to be specific, and women have been the target since Nixon but not the only one. Churches have always, except for the occasional blip, hungered after the power of controlling life in the here and here after. The goal is to give the hierarchies power, status and Money. It doesn’t have anything to do with faith or morals….we’ve seen those can be molded and ignored if it means power can be maintained.

    Arguments can be fashioned in an attempt to play the Saint but it all comes down to control.

    1. You might want to check on the predominate religion in states that allow abortion – you’ll find they’re Catholic. Catholics are most powerful in the Democratic Party in the most liberal states, specifically in the Northeast.

    2. “The goal is to give the hierarchies power, status and Money. It doesn’t have anything to do with faith or morals….we’ve seen those can be molded and ignored if it means power can be maintained.”
      *************************
      A lib talking “faith and morals” is like Mr. Hyde talking beauty tips.

  18. Clear explanation — hopefully this may help defuse some of the tensions from misunderstanding the intent and actual effects of this ruling.

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