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 a bunch of missiles are fired into Russia, we can say “collateral damage happens.”

  2. 57% Believe Court’s Decision Was Purely Political

    A majority of Americans (57%) think the Supreme Court’s decision to overturn Roe v. Wade was politically motivated and not motivated by the law of the land (36%). The debate over abortion rights will most likely play out on the campaign trail. 62% of registered voters say the Supreme Court’s decision will make them more likely to vote in this year’s midterm elections. Democrats (78%) are more motivated by the decision than Republicans (54%) and independents (53%).

    Edited From:

    https://maristpoll.marist.edu/polls/npr-pbs-newshour-marist-national-poll-the-overturning-of-roe-v-wade-june-2022/

    1. In a sense is is political. Roe wrongly made abortion a federal issue. Their political understanding of federalism got mixed up. The Justices corrected the problem.

  3. To be sure, isn’t the ruling 5-4 to overrule Roe? Roberts C.J. only upheld the impugned Mississippi 15 week legislation. He specifically avoided overruling Roe:

    Majority:

    The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

    Roberts:

    Both the Court’s opinion and the dissent display a relent- less freedom from doubt on the legal issue that I cannot share. I am not sure, for example, that a ban on terminat- ing a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fifteen weeks.

    A thoughtful Member of this Court once counseled that the difficulty of a question “admonishes us to ob- serve the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.” Whitehouse v. Illinois Central R. Co., 349 U. S. 366, 372–373 (1955) (Frankfurter, J., for the Court).

    I would decide the question we granted review to answer—whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful. The answer to that question is no, and there is no need to go further to decide this case.

    I therefore concur ONLY in the judgment. (emphasis mine)

  4. SUPREME COURT GREENLIGHTS THEOCRACY
    For Kathy, friend, mentor and wife. Stupor Mundi.
    Copyright ©2022 A. J. Reffes. All rights reserved. Published by Progress Publishers, Berlin, Germany.
    Seismic waves are disturbances which travel through the earth’s layers and are caused by earthquakes, landslides, explosions, volcanic eruptions and magma movements. These disturbances are enormous in their proportion and effect and can cause massive damage to natural and man made structures. The deadliest earthquake in history occurred in 1556 in Shaanxi, China, and led to the deaths of 850,000 people and the generation of seismic waves recorded throughout the world. Students of history have observed the detonation of an explosion whose cultural and political repercussions will be recorded for all time to come. They have observed the eruption of an earthquake whose seismic waves have toppled the world’s fortress of liberty and caused the traditions and institutions of Western liberal order to tumble to the ground. On June 24, 2022, the United States Supreme Court overruled the 1973 Roe v. Wade decision which recognized, under a substantive interpretation of the Fourteenth Amendment’s Due Process Clause, a constitutional right to obtain an abortion under the right to liberty. In the new case, Dobbs v. Jackson Women’s Health Organization, the court has upheld a Mississippi law which bans abortion after fifteen weeks of pregnancy, asserted that the constitution does not protect a right to obtain an abortion, and given state legislatures the right to ban the procedure. At the basis of the court’s decision is the religiously inspired assertion that an actual human person appears at the moment of conception. This assertion is as absurd and unempirical as it is a symptom of a detachment from reality and a descent into psychosis. The precepts of sanity affirm that what appears at the moment of conception is a potential human life as opposed to an actual human life. The counsels of science affirm that what appears at the moment of conception is a prehuman life as opposed to an actual human person. The judgment of common sense affirms that what appears at the moment of conception is a possible human being as opposed to an unborn human being. A potential human life or a prehuman life possesses no constitutional rights. A potential existence is an actual nullity and possesses no actual legal protections of any kind. There is no moral question presented by abortion because a potential human person possesses no actual, legal, moral existence: ”The Court considers whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents. The Court concludes the right to obtain an abortion cannot be justified as a component of such a right. Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much. (Casey). Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion is different because it destroys what Roe termed ‘potential life’ and what the law challenged in this case calls an ‘unborn human being.’ None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. Accordingly, those cases do not support the right to obtain an abortion, and the Court’s conclusion that the Constitution does not confer such a right does not undermine them in any way.” (Dobbs v. Jackson Women’s Health Organization, decided June 24, 2022, majority opinion by Associate Justice Samuel Alito). In its decision, the court asserts that a claimed right which is unenumerated, not specified in the eight amendments to the constitution, must be rooted in the history and traditions of the nation in order to be protected by the constitution. This opinion flies in the face of the Supreme Court’s constitutionally mandated function. In addition to interpreting the meaning of laws passed by Congress, the function is to guard and interpret the constitution. The text of the constitution says what it says, and the words of the constitution mean what they mean, independently of the history and traditions of the nation. Nowhere in the constitution is it written that a right must be grounded in the history and traditions of the nation in order to be protected. The fact that abortion was a crime when the Fourteenth Amendment was adopted in 1868, and continued to be a crime when Roe v. Wade was decided in 1973, is irrelevant to the court’s function of guarding and interpreting the constitution. A historical understanding of liberty has no bearing whatever on a textual understanding of liberty and the court is charged with a textual understanding of liberty independently of the nation’s history or traditions. The Fourteenth Amendment protects a person’s rights to life, liberty and property, and life, liberty and property mean life, liberty and property. A means A. Because an actual human life does not appear at the moment of conception, a woman has a property right over this potential, prehuman life and has the right to abort it: ”The Court examines whether the right to obtain an abortion is rooted in the nation’s history and tradition and whether it is an essential component of ‘ordered liberty.’ The Court finds that the right to abortion is not deeply rooted in the Nation’s history and tradition. The underlying theory on which Casey rested—that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for liberty—has long been controversial. The Court’s decisions have held that the Due Process Clause protects two categories of substantive rights—those rights guaranteed by the first eight Amendments to the Constitution and those rights deemed fundamental that are not mentioned anywhere in the Constitution. In deciding whether a right falls into either of these categories, the question is whether the right is ‘deeply rooted in [our] history and tradition’ and whether it is essential to this Nation’s ‘scheme of ordered liberty.’ (Timbs v. Indiana). The term liberty alone provides little guidance. Thus, historical inquiries are essential whenever the Court is asked to recognize a new component of the liberty interest protected by the Due Process Clause. In interpreting what is meant by liberty, the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy. For this reason, the Court has been ‘reluctant’ to recognize rights that are not mentioned in the Constitution. (Collins v. Harker Heights). Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion. Until the latter part of the twentieth century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time the Fourteenth Amendment was adopted, three quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided. Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis.” (Dobbs v. Jackson Women’s Health Organization, decided June 24, 2022, majority opinion by Associate Justice Samuel Alito). In its decision, the court asserts that the doctrine of substantive due process has been subject to reasonable disagreement by constitutional scholars and is far from settled in their eyes: ”The underlying theory on which Casey rested—that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for liberty—has long been controversial.” (Dobbs v. Jackson Women’s Health Organization, decided June 24, 2022, majority opinion by Associate Justice Samuel Alito). In point of fact, the doctrine has been anything but controversial in the eyes of constitutional scholars. The doctrine rests upon the fact that, in nonfiction literature and texts, the use of a word entails its reference to reality. The clause in the Fourteenth Amendment which prohibits states from depriving a person of his ”life, liberty or property without due process of law” refers to the existence of, and therefore the rights to, life, liberty and property. On the left hand side of the conjunction without are the words life, liberty and property. On the right hand side of the conjunction is the phrase due process of law. The words on the left hand side refer to the existence of the things named. The phrase on the right hand side refers to a fair and impartial adjudication process for depriving a person of his rights. This clause no person shall be deprived of his life, liberty or property without due process of law would not be found in a communist constitution, because such constitution would not recognize the reference of the words, life, liberty and property, and therefore the existence of the rights to which the words refer. The words life, liberty and property may only be found in constitutions which govern free societies. The doctrine of substantive due process was enshrined in American jurisprudence in the landmark Supreme Court decision Lochner v. New York in 1905. In its decision, the court ruled that a New York state law which set maximum working hours for bakers violated the right to liberty under a substantive interpretation of the Due Process Clause of the Nineteenth Amendment: ”The law constitutes an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract.” (Lochner v. New York, 1905, majority opinion by Associate Justice Rufus Peckham). The fundamental symptom of a civilization in decline is the rejection of reason. Since the early decades of the twentieth century, America has been under attack by the two flanks of a fearsome pincer movement. These flanks are manned by religious movements which reject reason and seek to impose their dogmas upon society. One flank is manned by materialists who advocate communism. They celebrated their first Supreme Court victory in Nebbia v. New York in 1934. In its decision, the court rejected the substantive component of the Due Process Clause, rejected liberty of contract. and stated that ”due process demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.” The other flank of the pincer movement is manned by spiritualists who project the primacy of a supernatural dimension. In 2022, they celebrated their first Supreme Court victory in Dobbs v. Jackson Women’s Health Organization, which authorizes states to ban abortion on the grounds that human life is a supernatural substance which mystically appears at the moment of conception. The worshipers of a god called Society and the worshipers of a God in Heaven have closed in on America and killed off the soul of reason.

    1. Nice loooooog cut and past, which contributed nothing to the conversation.

      I am a child of the American Revolution, where Nature (or Nature’s God) grants enumerated rights the Constitution protects. You are obviously a child of the French Revolution, where Reason (created by man) reigns supreme, and anything goes. I’m glad the six concurring justices are also children of the American Revolution.

      1. “[T]he French Revolution, where Reason (created by man) reigns supreme . . .”

        You don’t know what you’re talking about.

        Rousseau was the leading intellectual of the French Revolution. He was an anti-Enlightenment thinker who extolled emotions over reason. In his philosophy, reason is the fundamental cause of all of man’s ills.

        As for the American Revolution:

        “Fix reason firmly in her seat, and call to her tribunal every fact, every opinion. Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason, than that of blindfolded fear.” (Jefferson)

  5. What about the 10th Amendment, where we have rights that aren’t necessarily enumerated?

    1. The 10th Amendment delegates unenumerated rights to the states or the people. The mechanism for codifying unenumerated rights is the responsibility of the various states – exactly what the Supreme Court just ruled.

  6. You can try to parse yet another disasster thanks to Trump however you want, Turley, but the following are FACTS: 1. The SCOTUS has NEVER before taken away a right previously recognized as guaranteed by the Constitution; 2. Gorsuch, Kavanaugh, Barrett and Alito were all nominated by a president who LOST the popular vote; Gorsuch, Kavanaugh and Barrett were nominated by someone who cheated his way into office with the help of Russian hackers; their radical right-wing views are not shared by the majority of the American people; Gorsuch took the seat that should have gone to Merrick Garland, but Mitch McConnell blocked his nomination on the flimsy premise that the next election was too close–over a year away–but when the tables were turned and RBG died, Barrett was shoved onto the Court with the election a matter of weeks away; dozens of witnesses begged to testify about Kavanaugh, but were denied this right by Republicans. These 3 do not belong on the SCOTUS. They were put there for a specific political agenda: to reverse Roe, after being vetted by the Federalist Society for this specific reason, and to pander to radical right-wingers to try to gain political support. 3. Every privilege and right enjoyed by Americans is not specifically spelled out in the Constitution, which containes themes such as the right to privacy and liberty. For example, the framers did not mention nor could they have foreseen telephones or PCs, but that doesn’t mean that citizens don’t have privacy rights extending to these devices just because they aren’t listed. The Constitution speaks to a right of privacy in your person and papers. The same concept applies to the right of bodily autonomy and right to make decisions about reproduction without government interference up to the age of fetal viability; in fact, historically speaking, a fetus was not considered a “potential life” until quickening, somewhere in the second trimester, which is roughly the same time period set forth in Roe; whether legally-recognized life begins at fertilization of an egg is determined by religion, not science, and it is unconstitutional for the government to force people who don’t agree that an undeveloped fertilized egg is a person with full protection of the law prior to the age of viability to be burdened with living their lives controlled by others who believe this; 4. The Bill of Rights applies to all 50 states, and if you have a Constitutional right, no state can take it away. A woman’s right to bodily autonomy and decision-making about reproductive matters is protected by the rights of privacy and liberty set forth in the Bill of Rights, and is not a matter for individual states to decide; 5. Republicans not only want to ban or encumber a woman’s right to choose–they’re working towards banning IUDs, medical abortions and Plan B. About half of all abortions are medical abortions, not surgical abortions, and can be done up to 10 weeks safely. Not only that, they are proposing criminalizing a woman traveling out of state to obtain an abortion; 6. Republicans won’t stop with taking away abortion rights–they’re going to go after marriage equality, contraception, sex acts between consenting adults and miscegenation. Thomas told us so (other than miscegenation, which would invalidate his marriage, that would not have been possible when the 14th Amendment was passed, another inconvenient truth). Republicans twist history and Constitutional interpretation to fit their political agendas. Alito can try to downplay the risk of losing marriage equality, banning miscegenation, the right to contraception and consensual sex between adults all he wants to, but they all are currently protected by the same provisions of the Constitution that Roe depended on. Republicans are trying to force everyone to live according to their ultra-conservative beliefs. What could be more un-American than a minority forcing its beliefs onto the majority?

    Rick Wilson was right: everything Trump touches dies, including respect for the SCOTUS, which is at an historic low. VOTE REPUBLICANS OUT IN NOVEMBER! It’s your patriotic duty.

    1. Abortion is not a right enumerated in the Constitution, abortion was never a right, and abortion will never be a right until an amendment to that effect is ratified.

      The legality of abortion must be legislated.

      Yeah!

      Nationally, that ain’t never gonna happen’, Sista!

      Hear ye, hear ye, all you communist dependents, parasites, freeloaders and leeches, vote democrat (i.e. communist) to obtain every last scintilla of alms and “free stuff” from the “white man’s money” you can politically “smash and grab.”

      You go, girl!!!

      Dang! The Naturalization Acts of 1790, 1795, 1798 and 1802 were not only indicated and legislated, they were absolutely imperative.

    2. Democrats control House, Senate and Oval. Why don’t they just round up the RINOs and pass a law legalizing abortion?

      Or you are free to lobby your local elected state representatives.

      God Bless America.

      1. Obama had the super majority. Dems never took it up.

        Dems only used abortion as way to divide the nation. Dems have no emotional attachment to mothers demanding birth control by abortion.

    3. The energy, momentum and righteous anger is coming from the right. There will be a red tsunami, a BLOWOUT VICTORY THIS NOVEMBER…Brace for impact, Nuthatch.

    4. 1) Of course they have. Every single instance in which SCOTUS has reversed on anything that granted government more power has limited individual rights.

      Can we please dispense with stupid arguments.

      I think Dobbs was wrongly decided – but so was Rowe.

      2). Presidential Elections are not decided by the popular vote. They are decided by whatever criteria a state legislature has put in place to assign its electors.

      God, Not the Collusion Delussion nonsense again ?

      While we now know this was a hoax pulled off by Clinton.
      It was NEVER a credible claim – those of you who EVER beleived it should be wearing Dunce caps.

      Trump was not going to engage incredible trade craft to conspire with Putin to get Russian hackers to produce idiotic Facebook Adds that influenced no one.

      If Trump thought he needed a few more votes he could go to Cambridge Analytica and put together a FB campaign that would have worked far better.

      There is no upside – even for a crooked politician to working with foreign powers like the Russians to interfere in US elections.
      Madison avenue is far better and cheaper.

      Garland has done an excellent job of proving he was undeserving of a Supreme court seat.

      McConnell absolutely played politics with a supreme court appointment – as democrats and republicans have done since 1787.
      If you do not like that – change the rules, the law or the constitution. Democrats do it all the time.

      Presidents have had appointments delayed by the senate for years. And they have had them rushed.
      Absolutely it is politics. so elect different people.
      It is not illegitimate or unconstitutional for those in power to do what they promised those who elected them they would do.

      Being supreme court justice is not a right.
      Testifying in congress is not a right.
      The senate gets to confirm or not, or just sit on whatever appointmets they choose. And to schedule the witnesses they choose.

      Unlike the J6 committee, democrats sat on the judiciary committee and were allowed to the power to question witnesses and call their own.

      They were appointed as part of a political agenda – as was Jackson – OPENLY.

      And cut the “federalist society” nonsense. This is not the MacCarthy era. Worse you misrepresent federalists. If you want the BEST constitutional argument that Dobbs is WRONGLY decided – read one of the leading federalists, Randy Barnett’s “Restoring the last constitution” – or for something shorter there is an article by Damon Root in Reason.

      If you are going to slander the federalist society you should atleast understand what they actually stand for.

      If as you claim this is all about “pandering to extreme right wingers” – then so much for a red wave in November.

      I think Dobb;s is wrong. I also think it is unimportant, and I think had SCOTUS kicked it into the next term, that would have been apparent.

      TX SB8 has not caused a consequential backlash among voters.

      Why ? Because alot has changed in 49 years. Birth control options are far better, the morning after pill is readily available and cheap.

      We have seen prior abortion restrictions that have not had consequrntial impact – women just decide earlier – even poor women.
      Even PP’s Gutmacher’s data shows that restrictions on late abortions just move decision making earlier to when it is easier and less costly.

      Myriads of companies are pledging to fly employees to other states to get abortions.
      I doubt many will ever have to make good on their pledges.

      Had SCOTUS kicked Dobb’s to 2023 it would have been obvious to all that things like TX SB8 – as much as you do not like it did not really alter anything of consequence for women.

      The core issue is NOT whether women have the right to an abortion at 280 days. It is whether women have control over their reproduction.
      We are way past the point where the courts can thwart a women’s control of her own reproduction.

      Dobb’s may cause some violence and ranting, but it is more emotionally consequential than actually consequential.

      3), your digression on unenumerated rights echo’s leading FEDERALIST thinker Randy Barnett.

      That said – there is no fetal viability standard for unenumerated rights.

      One of the errors of Dobbs and of Rowe is a failure to grasp that the right to control of ones body and the ability to kill a fetus are SEPARATE.
      Viability dances arround that without directly confronting it.

      A woman does have the right to control her reproduction – right up until conception. At that point she has either deliberately or accidentally made that choice.

      After conception the right at question is NOT the right of control of reproduction. It is the right to control ones body. When you talk of viability you are unconsciously recognizing that. Post conception a woman has the right to have the preganacy removed from her body – even if that results in the death of the pregnancy. But not the actual right to kill it.

      That is what Rowe got wrong, that is what Dobb’s gets wrong. Both are confused about the actual rights in question.

      Regardless, all this is hypocritical coming from someone who wanted to force vaccinations and masks on all of us.

      BOTH religion and law get to decide when life begins. they may choose the same or differently.
      Regardless the legal decision is fundimentally arbitrary

      Control over your own body is distinct from control of reproduction. With the exception of rape your control of reproduction has been decided when you conceive.

      When you point a gun at someone and pull the trigger – you have made your choice, You do not have the right to a do over.

      Some people do seek to have totalitarian control over our bodies – forcing cotton swabs up our noses for Covid tests, or forcing us to wear masks or to inject ourselves with experimental vaccines or worse still our children – most of those are called democrats.

      When republicans actually attempt to pass laws banning plan B or IUD’s or whatever other boogey monsters you fear I will oppose them.
      Just as I oppose all the Covid infringements on control of our own bodies.

      Plan B is not illegal anywhere – in fact it is available over the counter.

      If you actually read the Dobb’s decision they are NOT going after consenbting sexual conduct, gay marraige, interracial sex, …..

      Thomas is correct that each of those has no more (or less) foundation in the constitution.

      My HOPE was that the court would take a small step towards recognizing the 9th amendment. It failed to do so.

      Regardless, there is only one vote on the supreme court to reverse griswald or loving or obergefeld, in fact the expansive trans rights decisions was authored by Gorsuch.

    5. If as I expect in November Dobb’s turns out to be a non-issue – because it really does not change much,

      Then what will you do ?

      I agree with you that Dobb’s is wrongly decided – though that is where the agreement ends.
      Rowe was also wrongly decided.

      The right to reproductive freedom ends when you get pregnant – the fact that you make it cassually does not change that it is a choice.

      The right that continues into pregnancy is control of your body – the same right that should thwart those like you imposing vaccine and mask and testing mandates.

      The right to control of your own body is NOT the right to control the fetus.
      Remove – fine, Kill ? Not a right.

      But despite this decision being wrong – it is not earth shatteringly wrong.

      The court has not actually recognized the right to bodily control – because of people like YOU.

      That said Dobb’s does nothing but foreclose the most draconian of many options available to women.

      It isunlikely we will suddenly have a large increase in unwanted children.
      Just women making choices earlier – which is a good thing.

    6. There is no right to an abortion in the constitution.The so-called right was found in the “emanations and penumbras” of the Privacy Amendment. Even Supreme Court Judge RBG expressed doubts about the original decision.

    7. Nuthatch, Here’s a thought for you: Trump may not be done picking Supreme Court justices. Oh yeah.

  7. The Supreme Court simply accomplished a bit of constitutional housekeeping and corrective action on abortion.

    Abortion is NOT an enumerated right; its legality must be legislated.

    The Supreme Court must move on to other housekeeping and corrective action.

    Denial of secession was unconstitutional and every act that flowed from the unconstitutional denial of secession was, in its turn, unconstitutional.

    Abortion was declared unconstitutional, fully abrogated and reversed.

    Every act begot by the denial of secession must be declared unconstitutional, fully abrogated and reversed.

    The consequences of the Civil War, suspension of habeas corpus, failure to enforce immigration law, and Karl Marx’s “RECONSTRUCTION Amendments” must be declared unconstitutional, fully abrogated and reversed.

    If the denial of secession was unconstitutional, Karl Marx’s “RECONSTRUCTION Amendments” are unconstitutional.

    Is it conceivable or possible for crime to spawn its own legalization?

    Perhaps, the esteemed Justice Clarence Thomas will issue his decision on that crystal clear bit of constitutionality.

    The dominion of the Constitution must be restored in America.

  8. Jonathan: Believe it or not there are women who support the Dobbs decision–the usual crowd: Conservative Catholic women, evangelicals and, of course, right-wing GOP politicians like GOP Rep. Mary E. Miller from Illinois. At a Trump rally yesterday Miller said the decision overturning Roe was “a victory for white life”. A spokesperson for Miller later said her statement was a “mix-up of words”. That was apparently lost on Trump rally crowd, clutching red “Save America” placards, who cheered on Miller. Miller’s comment was widely criticized on social media.

    This is not the first time Miller has been criticized for her comments. Last year, she was forced to apologize after quoting Hitler at a “Moms for America” event. She said: “Adolph Hitler was right on one thing. Whoever has the youth has the future”. Miller is in good company. Hitler was also opposed to abortion. He wanted German women to have lots of babies for the Third Reich. Birds of a feather…? When a GOP politician in the US thinks Hitler has something valuable to say on any subject you know we are on a slippery slope toward fascism!

    1. Which one of your colleagues posted a tweet calling for the death of Clarence Thomas? Hard to tell if it was authored by Dennis, Justice Holmes, Fishwings or your many other sock puppets. The internet is forever

      https://archive.ph/dXxg3

      @oiliers
      Kill Clarence Thomas
      KILL CLARENCE THOMAS
      #WeWontGoBack

    2. Miller actually said it was “A victory for RIGHT life”….meaning RIGHT to life.

      But she could have also said this:

      “The overturning of RoevWade is a victory because Black Lives Matter.”

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