Legal merits and flaws of Dobbs v. Jackson Women's Health Organization

[Max_S]

@Northern_Piper

Her basic point is that an appeal to historical treatment of the abortion issue in the 19th century is an unfair standard, because women had no right to participate in the political process. It therefore is not appropriate to use the 19th century standards to assess women’s constitutional rights on a matter that applies so significantly to women.

The dissent made this point as well. I’ll admit in an instant that it’s unfair, and that’s a simple byproduct of the inequalities of the eighteenth and nineteenth century. But while unfairness is a compelling argument to change the law, I do not think it is a compelling argument to interpret the law differently. In olden days there would be courts of law, and there would be separate courts of equity. Today the two have mostly merged but not, I think, when it comes to questions of law (including constitutional questions).

The article, of course, contradicts itself when it cites two old Supreme Court rulings holding that women can’t practice law or vote, then claiming that it is “unprecedented” to read the Constitution’s guarantee of liberty in such a backwards way.

~Max

[Hamlet]

@Max_S

@Northern_Piper

Her basic point is that an appeal to historical treatment of the abortion issue in the 19th century is an unfair standard, because women had no right to participate in the political process. It therefore is not appropriate to use the 19th century standards to assess women’s constitutional rights on a matter that applies so significantly to women.

The dissent made this point as well. I’ll admit in an instant that it’s unfair, and that’s a simple byproduct of the inequalities of the eighteenth and nineteenth century. But while unfairness is a compelling argument to change the law, I do not think it is a compelling argument to interpret the law differently.

Why not? When your method of constitutional interpretation (originalism as one requiring that rights can only be protected if they were enumerated and applied only to white, property-holding men) flies in the face of the 9th Amendment and the very rationale for having a broadly worded Constitution rather than a series of precisely written statutes, how isn’t it compelling that it is the wrong, unintended method of Constitutional interpretation. Picking and choosing some of the famous people who were around that time and deciding that what they thought is not the only way to interpret the wording of the Constitution. And it certainly isn’t the best. It’s only used now because we have a activist, conservative majority that are more concerned with enforcing the political will of their party than Constitutional scholars.

[Max_S]

Remember, we disagree as to what the 9th Amendment protects.

Does the Ninth Amendment to the United States Constitution itself protect individuals from State infringement of unenumerated rights?

I don’t think the Ninth Amendment is really “about individual rights”. I think it, like the rest of the bill of rights, is all about federalism. You don’t need to reply to this because I’ll make the same point when I reply to post #4, that way we can keep the thread tidy. These will also be addressed later on. I will address this right here. I do allow for federal judicial review of unenumerated rights. If, for example, a woman comes to court claiming that the State infringed her right to m…

ETA: I wouldn’t characterize the Dobbs court as picking and choosing some of the famous people who were around in the 19th century, either. I don’t see the opinion as intent-based originalism at all. In fact they presented themselves as opposed to that - see my spoiler tag for “Assumption that anti-abortion laws were enacted in good faith.” from the OP, which also addresses @Moriarty’s latter point from post #9.

~Max

[Hamlet]

@Max_S

Remember, we disagree as to what the 9th Amendment protects.

Remember, even if you think the 9th Amendment does not protect individual rights, it’s clear language certainly emphasizes that a method of Constitutional interpretation that requires rights be enumerated before they are protected by the judiciary, is horribly wrong.

[Max_S]

No, we disagree on that part, too:

@Max_S

[…] critical points on which we disagree,

• […]
• Whether Amendment IX’s prohibition on denying or disparaging unenumerated rights applies to interpretation of anything except the mere fact that other rights are enumerated in the Constitution
• Whether “rights reserved to the people” includes anything more than the rights reserved to the people through their existing State governments

~Max

[Hamlet]

@Max_S

No, we disagree on that part, too:

I’m not disputing that we disagree. I’m simply pointing out that you’re wrong.

[Max_S]

Fair enough.

~Max

[Moriarty]

@Max_S

But while unfairness is a compelling argument to change the law, I do not think it is a compelling argument to interpret the law differently.

I disagree…

@Max_S

There was no common law right for a woman to procure pre-quickening abortions even before the mid-nineteenth century. What Glucksberg says is that the absence of a criminal penalty does not create a legal right.

I may be a bit of a legal realist, but as I think about this I am reminded of the fact that abortion is solely the experience of females, and that this therefore makes it exceptional amongst practices that were addressed at common law.

Suicide, for example, is something that both men and women can partake in. From an archaic patriarchal society, then, it’s conduct that adult citizens might do. Therefore, it makes sense that there needs to be laws that address it.

But abortion, meanwhile, is not something that the full citizens may engage in. Therefore, it is not going to be codified in the laws unless a punishment is to be imposed to prohibit it.

In other words, in a society that considers women to be on a lower standard, akin to children, the failure to prohibit their conduct (when it is exclusively their conduct) does render it a right, since we should not expect such a society to ever elevate exclusively women’s issues into an enumerated freedom.

I mean, this was a time when a man could theoretically claim that he owns the kids inside the woman, who is herself is domain, yet the law was absent over his right over his progeny before quickening? I admit that I don’t have the cites to substantiate it, but I think that should logically suffice to suggest a legacy of female bodily autonomy.

@Max_S

they gave an example of what evidence of a fundamental right might look like: outcry when the State attempts or actually punishes the exercise of an allegedly fundamental right.

Since women didn’t have the vote at that point in society, I’d don’t think we can fairly assess any pushback against the change in longstanding tradition.

@Max_S

Mississippi’s law didn’t apply to any part of the “equation for forming life”, i.e. sexual activity. The actus reus of abortion is strictly post-conception.

But that’s a choice they’ve made to accomplish the goal of stopping unwanted pregnancies; the legislature decided that this would be a woman problem, even though it is absolutely positively undeniable that a pregnancy does not occur unless a man is somehow involved.

Recall that the issue I am addressing is whether this should be viewed as an issue of sexual discrimination. In my opinion, it clearly is - they’ve placed the burden of unwanted pregnancy on women.

Now, I do think there’s a further analysis (I.e. are these the least restrictive measures, does it create an undue burden, what is the harm to be protected against), and it does get more complicated as we go on.

Ultimately, though, here’s my take an the abortion issue:

There is a privacy interest in bodily autonomy protected in the Constitution. While the 9th amendment is not an independent source of rights, it does command us to view the other enumerated rights in an expansive way, and there is an obligation imposed by the 4,5, and 14th amendments to require the state to justify its intrusions on the personal liberty to live as you see fit.

This is not an impossible burden, of course. While I am sympathetic to arguments about the freedom to use the drugs, or screw the people, you want, I do respect that there are arguments about social harm that can overcome a person’s presumed autonomy. In any case, we must consider the interests that are at odds with each other.

In the abortion realm, the competing interests - body choice and personal privacy v. protecting life - are huge. But, given the history that traditionally respected a woman’s power to control her pregnancy before there was some confirmation of an independent life (e.g. quickening), I would be compelled to respect that tradition, even as I have no problems believing that life begins at conception (it’s logical to me; but, I don’t think that conception happens at intercourse - it’s why the morning after pill is so important- or that the life that begins has consciousness for some time).

If I were a Justice, I’d write that a woman has a right to terminate her pregnancy before the baby is viable outside the womb, but at the point that the fetus becomes viable, the state does get to claim a superior interest in preserving life. And I’d sign off on the opinion that says that the state can’t create an undue burden to access that right.

[Max_S]

@Moriarty

But abortion, meanwhile, is not something that the full citizens may engage in. Therefore, it is not going to be codified in the laws unless a punishment is to be imposed to prohibit it.

I mean, this was a time when a man could theoretically claim that he owns the kids inside the woman, who is herself is domain, yet the law was absent over his right over his progeny before quickening? I admit that I don’t have the cites to substantiate it, but I think that should logically suffice to suggest a legacy of female bodily autonomy.

[…]

Since women didn’t have the vote at that point in society, I’d don’t think we can fairly assess any pushback against the change in longstanding tradition.

The first statutes prohibiting abortion coincided with the commercial provision of abortion services. As your cite from #9 relates, early anti-abortion laws predated the American Medical Association and were codified under the poisoning statutes. It was the other citizen - not the mother, but the doctor - who was prohibited by law from inducing or procuring a miscarriage by drug (poison), and at first the quickening distinction was preserved. Although the Dobbs court also catalogues numerous States who criminalized abortion at all stages before 1857 in Appendix A, you can see that the earlier ones were still written as prohibitions on poisoning.

There is another more obvious reason the old common law didn’t punish pre-quickening abortions. The quickening milestone, about 40 days into pregnancy, is itself the point at which most women back then learned they were pregnant. Even today a significant number of women don’t know they are pregnant at six weeks in - you may recognize that number from the hearbeat laws - that’s only two to three weeks after a missed period. The Dobbs court and the Solicitor General both recognized that the unborn child wasn’t recognized as a separate person pre-quickening by anybody at the time. Not even the Catholic Church, who took the position that ensoulment beings with conception in 1869 (Pope Pius IX, Apostolicae Sedis moderationi). Our understanding of human reproduction back then was almost amusingly dismal. In the early history of this nation, there were no (reliable) pregnancy tests, only “piss prophet” quackery. As for monitoring one’s periods, some women have irregular cycles, probably exacerbated by the harsh manual labor and food insecurity of pre-industrial society. Put it this way, until the mid-nineteenth century abortion was uncommon enough - your cite’s cite from #9 jumps from some 4 to 5% of all pregnancies being aborted before 1840, to 33% (conservative estimate) of all pregnancies being aborted in the late 1800s. I found another cite that puts the upper bound at 25%. Now at the time when the common law dominated, how many abortions could possibly have taken place before quickening? And most of those would be done in private, by a midwife or possibly by the woman herself with some juniper oil (an ancient practice apparently forgotten during urbanization in the 19th century). I don’t think it would be a significant enough problem for the old common law to address.

It is my understanding that most abortions in the 19th century - after abortion caught on as a commercial enterprise - were joint decisions by husband and wife, white, protestant, middle to upper class, and already burdened with children. That is to say, abortion was for most part a form of family planning. The original feminists of the late 19th century, to my knowledge, preached the unfairness of being legally raped by their husbands compounded with the criminalization of abortion. This was pushed aside in favor of a united movement for suffrage, but their discontent is still documented in private writings. As I understand it their idea of a fundamental right to choice before the age of contraceptives or as they put it, ‘voluntary motherhood’, involved not abortion but abstinence from sex. A right the law wouldn’t recognize for married women until the 1970s-1990s - how is that for a legacy of female bodily autonomy?

~Max

[PastTense]

Here is a behinds the scene look at how the decision was made:

Behind the Scenes at the Dismantling of Roe v. Wade

unfortunately paywalled; does someone have a gift link?

[RitterSport]

Here’s a gift link:

Behind the Scenes at the Dismantling of Roe v. Wade