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[Sticky] Deciphering the Constitutional crisis of Alabama's abortion law
There is going to be a lot of ink, (and feminist tears) spilled over the recent law in Alabama prohibiting abortions. I'm going to analyze/evaluate both the legal and political issues and hopefully cut through the crap and explain this in simple layman's terms.
First, the facts: Eleven states are either preparing or have passed restrictions on abortion: Utah, North and South Dakota, Indiana, Ohio, Kentucky, Arkansas, Mississippi, Georgia, and of course Alabama. Wisconsin, Missouri, and North Carolina are considering/developing legislation to restrict abortion. Only New York, Vermont, and Virginia have passed laws protecting and expanding abortion. Nevada is also considering similar legislation. What does this mean as a political matter? First it indicates that the media's narrative is misleading. They would have us believe that abortion is universally accepted and approved by the population of the US. Obviously this is not the case. Secondly the states passing the restrictions are aware that their laws will face challenge in the Federal courts. And that is the point, politically---this is being done for the express purpose of challenging the 1974 Roe v. Wade Supreme Court decision. In fact the ACLU is already preparing a suit against Alabama.
The first thing most of you are likely to hear/read from the left-wing and feminists is the lamentation that Roe cannot be overturned based upon the Supreme Court's doctrine of Stare Decisis. This is a legal principal which comes down to us from Roman law. Originally it was: Stare decisis et non quieta movere, which means to stand by decisions and not disturb the undisturbed. This principal obligates judges to respect the legal precedent established by prior decisions. In other words prior decisions of a superior court are binding upon inferior courts. However, AND THIS IS IMPORTANT, the legal principal of Stare Decisis does not prevent a court from overturning its own precedent. You will never hear/read about that little fact. But lets look at some history. Here is a list of decisions the Supreme Court has explicitly overruled by subsequent decisions of the Supreme Court:
Thus overruling the Roe decision is not only possible but it is not a violation of Stare Decisis. But why overrule it? I'm not going to get into a deep legal analysis of the case. Its a long, complicated, convoluted Gordian knot of legalese and word salad. There is the majority opinion, concurring opinions, dissenting opinions and opinions concurring/dissenting in part. Its a mess. So I'm going to cut to the chase with four clearly delineated issues that argue for revisiting and reversing this blight.
A) The issue in the Roe v. Wade case lacked Justiciability from the get go. Justiciability is one of those fancy legal terms of art which refers to the criteria that a legal case must meet before the Supreme Court can exert jurisdiction. There are four criteria: There must be an actual controversy between the parties of the suit, and they must be seeking a judgment NOT an advisory opinion. Nor can the issue be “unripe” or moot. An unripe issue is one for which there is not a injury to the plaintiff bringing the suit, and moot means the potential for the injury complained of by the plaintiff has ceased to exist. Finally the suit cannot be seeking a judgment upon a political question.
There are a host of situations that constitute a political question but the one we're interested in is a situation involving a matter in which it is impossible to render a judgment without an initial political policy determination of a kind clearly open to nonjudicial discretion. In other words is this a situation more properly decided by a legislature or executive decision. If a case fails to meet these criteria the Supreme Court is barred from hearing it in the first place. I would argue that the issue of abortion was/and/is a political issue not a legal issue. It is more appropriately decided by a legislature. This is the reason abortion is not a serious controversy in places like the UK or Ireland. Abortion was made legal through a parliament or other legislative process, in theory it is an expression of the will of the people. In our country the left/feminists did not have sufficient political influence to advance abortion as a legislative matter (at the state level or in Congress)---the “will of the people” be damned; so they turn to the courts as an instrument to impose the agenda they failed to achieve legislatively. In summary the Court was used as a political tool to advance a political agenda that the feminists and left-wing could not otherwise advance because more people opposed abortion than supported it. This fact standing alone is a sufficient basis for overturning the Roe decision but there is MORE.
B) The Supreme Court cited precedent for their decision in Roe. They relied upon the 1965 Supreme Court case Griswald v. Connecticut. In that case the Court ruled that Connecticut's ban on the use of contraceptives violated the right to martial privacy. The 1879 law stated in part:
"any person who uses any drug, medicinal article or instrument for the purposes of preventing conception shall be fined not less than forty dollars or imprisoned not less than sixty days."
So how is this case precedent? Answer: ITS NOT, and this why. First, Griswald deals with contraception — preventing pregnancy. By definition abortion is not contraception because conception has already occurred and we are dealing with a pregnant woman. Secondly, the right of “martial privacy” in that case was “discovered” by Justice Douglas:
“Justice Douglas contended that the Bill of Rights specific guarantees have "penumbras," created by "emanations from these guarantees that help give them life and opinion." In other words, the "spirit" of the First Amendment (free speech), the Third Amendment (prohibition on the forced quartering of troops), Fourth Amendment (freedom from searches and seizures), Fifth Amendment (freedom from self-incrimination), and Ninth Amendment (other rights), as applied against the states by the Fourteenth Amendment creates a general "right to privacy" that cannot be unduly infringed.”
However Justice Douglas specifically limited this new found privacy right to MARRIED COUPLES. Thus it is the institution of marriage that gave rise to this new “ privacy right”. Obviously in Roe we are dealing with an UNMARRIED woman. So how does a right of privacy created for married couple all of a sudden become precedent for unmarried women? It doesn't except by judicial caveat. Which leads us to the third problem.
C) In Roe, Justice Blackmun took the “discovered” right of martial privacy and decided that it should apply to a woman's “right” to an abortion. (So the criteria of the precedent—contraception, marriage were simply cast aside.) How did he accomplish this legal feat? Simple he quotas Justice Douglas at length. My question: what are these “penumbras” and “emanations”? What does he mean by “spirit”? I don't know; no one knows and that is the point. Those words can mean ANYTHING to ANYONE at ANYTIME, and for ANY reason. That kind of vague, unintelligible language is the stuff of tyranny. Babble like this has no place in any rational logical legal lexicon.
D) Finally, there is the oft heard mantra of the leftists and feminists that an unborn child really isn't a child at all. I'm not at all sure just what they think it is—but it is clear that whatever it is, this “it” morphs into a human being at birth—at least this was the logic in 1974. My question: Is the state of medical science today the same as it was 45 years ago? Has it remained static or do we know more now about prenatal development than we did back then? I think we do. Thus the advance of scientific knowledge regarding the nature of a fetus demands a review of the Roe decision if for no other reason than the science Roe was based upon in 1974 is no longer current.
Well this is a lot of information to digest for the moment. As a result I will refrain for the moment from discussing what may happen WHEN not IF this issue lands on the doorstep of the Supreme Court. Suffice to say there are five possibilities: They could punt, and not grant certiorari, they could simply affirm a lower court ruling, they could overturn Roe and toss the issue back to the states under the 10th Amendment or principals of federalism, or they could find that an unborn fetus is a “person” under the auspices of the 14th Amendment, or they could come up with some sort of ridiculous compromise.
I will examine these possibilities in the next installment.
The truth is easy to find for those that want to find it, that abortion is largely viewed as murder. It is legalized murder for convenience, and something that the coldest of hearts in the vilest of females practice. They kill babies for their own benefit or use the babies as weapons against men if they birth them. This is a continued practice of the irresponsible and immoral females. I enjoy seeing steps taken to correct this, and look forward to the future of females having to be responsible for their actions. Time to end the blame and responsibility shifting.
"Remember, you're fighting for this woman's honor, which is probably more than she ever did."
Groucho Marx: Duck Soup (1933)
Especially reading through T.E.G.‘s longer posts is such a unique treat! Thank you, again, for bringing things into perspective, man! You’re surely emanating 😀 some serious wisdom right there by putting into layman’s terms the whatabouts of US abortion legislation. Much appreciated!
“What does he mean by “spirit “? I don’t know; no one knows and that is the point.” - The Evil Genius
Travis is right. Many states including Texas passed laws requiring the abortion doctor to be credentialed (allowed to practice) and admitting privileges at local hospitals. The case was Whole Woman's Health v Hellerstedt which struck down those state provisions as a "burden", BUT notice that is was a 5-3 decision in 2016. Please note that Kennedy (the swine) was still on the court and Roberts was a turncoat. BUT now Kennedy is gone and we have Gorsuch and Kavanaugh on the court. If Roberts manages to find his balls and pull his head out of his ass Roe is a goner and all its progeny with it.