Our analysis and educational effort re the Dobbs decision continues. Talking points, videos, and articles can be found at www.SupremeCourtVictory.com.
Below I share with you the trap that the pro-aborts are now trying to get the state courts to fall into, and what we need to know about how to answer it, based on what Dobbs says.
Let me also briefly share with you three things before you delve into this article.
First, the rally speech President Trump gave in Alaska this past Saturday evening was great. Please be sure to watch it! He mentioned the overturn of Roe right at the beginning of his speech. Remember, he had said in 2016 that if he were elected, his Supreme Court appointments would automatically lead to the reversal of Roe. Now, we have him to thank for this victory.
Second, this is a great time to be educating people on what an abortion actually is. For decades, we at Priests for Life have been providing resources to expose abortion, as you can see at www.ExposeAbortion.com. Please spread these resources, including the testimonies of former abortionists that you can find by clicking that category on www.AbortionTestimonies.com.
Third, there’s nothing Biden can do to “Save Roe,” though he’s trying to make his desperate and deluded Dems across the country think he can. See my press release on this today.
Please enjoy the reflections below on the Dobbs case and share them with your pro-life friends and colleagues! And please join me tonight at 8pm ET for “Praying for America” on Right Side Broadcasting Network and on our own www.EndAbortion.TV.
Fr. Frank Pavone
In the aftermath of the reversal of Roe v. Wade, all the arguments about the pros and cons of legal abortion are, understandably, being played out in the media, on social media, and in the legislatures and courts. We all have a pretty good idea of what those arguments are. But as the Dobbs majority wrote,
“Both sides make important policy arguments, but supporters of Roe and Casey must show that this Court has the authority to weigh those arguments and decide how abortion may be regulated in the States. They have failed to make that showing, and we thus return the power to weigh those arguments to the people and their elected representatives.”
The Dobbs decision shows a certain humility of the Court. The decision says in other words, “Who are we, nine unelected Justices, to settle the policy arguments on an issue of deep concern to hundreds of millions of Americans? We as a people have settled difficult questions before through our democratic process of debate, elections and lawmaking, and can do so again.”
And the lesson is an important one.
For fifty years, Americans have been unable to change Roe and Casey’s national policy that abortion is a “constitutional right” rooted in the “liberty” provision of the 14th Amendment. But the Dobbs majority pointed out that “we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy.” (Dobbs majority opinion, p. 14).
How indeed do we guard against that tendency?
Consistent with what the Court said in the 1997 Glucksberg decision that failed to find a right to assisted suicide in the Constitution’s concept of “liberty,” the Dobbs Court said we must be “guided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty” (Dobbs majority opinion, p. 14).
Taking this approach, and analyzing the history of American laws, constitutional provisions, court decisions and scholarship, the Court found that the “right to abortion” does not appear until the time of Roe v. Wade, and that until then the Court had not used the concept of “privacy” or “liberty” as a justification for purposely ending another life. Indeed, that is what makes abortion inherently different from other actions defended under privacy, liberty and autonomy, as the Supreme Court acknowledged in Roe v. Wade, Harris v. McRae, and PP v. Casey.
“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 destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” See Roe, 410 U. S., at 159 (abortion is “inherently different”); Casey, 505 U. S., at 852 (abortion is “a unique act”). None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion.” Opinion, p.32
The presence of a second life, whatever term one wants to use to describe it, is what sets off a “balancing” of interests – popularly called the “right to life” vs. the “right to choose” – the balancing that the Dobbs court leaves to the people and their elected representatives.
“Ordered liberty sets limits and defines the boundary between competing interests. Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed “potential life.” Roe, 410 U. S., at 150; Casey, 505 U. S., at 852. But the people of the various States may evaluate those interests differently.” (Dobbs majority opinion, p. 31).
When the Dobbs majority responds to the dissent of Justices Breyer, Kagan, and Sotomayor, the majority notes, “The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life.”
And that indeed is the most striking feature of the public dissent we now see from some citizens, groups, elected officials, state courts and international leaders in the wake of Dobbs.
They talk about is privacy, women’s rights, freedom, and autonomy, but do so in such a way that suggests that no balancing is required, that no second life even has a place in the equation.
Biden asserted that “the health and life of women in this nation are now at risk;” Canada’s Justin Trudeau tweeted that “American women … are now set to lose their legal right to an abortion;” French President Macron tweeted that their “liberties are being undermined, and the Director General of the WHO declared, “women’s rights must be protected.”
Challenges being made to various state laws are likewise one-sided in their evaluation of the problem. Florida’s 15-week ban was challenged on the basis of the “privacy” provision of the Florida Constitution; a lawsuit against Ohio’s law was based on women’s reproductive autonomy and bodily integrity, and abortion advocates in Kentucky sued against its pro-life law asserted the KY Constitution’s provisions of ‘privacy’ and ‘self-determination.’
The crux of the matter is this: if the people are going to be deprived of the opportunity to work through their elected lawmakers to balance the rights of women and the rights of their unborn children, what difference does it make if that process is blocked by judges appealing to the federal constitution or by judges appealing to state constitutions? In both cases, history is too easily bypassed and the will of the people is too easily replaced by the will of the judges. It is precisely to the legislative will of the people that Dobbs returned the process of policy-making on abortion. Proponents of abortion should not try again to take it from them on the state level.
Indeed, the Dobbs decision warns,
“In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been “reluctant” to recognize rights that are not mentioned in the Constitution. Collins v. Harker Heights, 503 U. S. 115, 125 (1992). “Substantive due process has at times been a treacherous field for this Court,” Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion), and it has sometimes led the Court to usurp authority that the Constitution entrusts to the people’s elected representatives. See Regents of Univ. of Mich. v. Ewing, 474 U. S. 214, 225– 226 (1985). As the Court cautioned in Glucksberg, “[w]e must . . . exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” Opinion, p.14
If federal courts cannot invoke a “right to abortion” based on a one-sided appeal to liberty, privacy or autonomy that not rooted in the will of the people as expressed in our legislative and judicial history, why should a state court be able to do so while likewise disconnected from history?
For the supporters of abortion “rights,” all that is needed is to declare the woman’s right and autonomy, period. No second life involved; no balancing or complexity needed.
Would that life were just that simple. But it isn’t.
Neither is history, and neither is democracy.