An initial response to reading the Opinions

June 24, 2022

When the news came down earlier today I was doing some outside activities with my son. I finished those up and then, because weather-wise it is a glorious day in Omaha, I strung up my hammock and decided to forego what else I had planned and read the opinions. I've long had a habit of reading SCOTUS opinions I'm interested in. In fact, I think Roe was the first one I ever read, back in Junior High. And I wanted to read the opinions themselves before reading any articles or analyses. My initial thoughts, then.

Alito's majority opinion does not seem to be exactly the same as the draft opinion but similar. Will be interesting to read analyses of what changed. It appears to respond to some of the criticisms that arose after the leak.

I didn't realize till just now that the phrases “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty" used as criteria are actually from a decision written by Ruth Bader Ginsburg. On another issue of course.

As is usually the case with reading something Alito writes (which is rarely the opinion everyone on his side signs onto), there is a coherency to the arguments but a sense that there's something wrong with the perspective, that his starting point is just off and misses something essential. The same follows here, and is drawn out by the dissenters. The key issue of women's equality and liberties and how that embeds within our tradition is pretty much missed completely by Alito. Again, as if he missed the whole point of the issue and what the precedents were attempting to do. (See far below for some general thoughts on abortion).

Thomas's concurrence is frightening. He's always been this radical minority voice, but I begin to dread that he now can sway other votes.

Kavanaugh's concurrence is interesting. And shows there isn't currently a majority to go further to the right. Which is a relief. I do like the way the dissent skewers his opinion later. Kavanaugh seems to have this pattern of wanting to clarify and explain vote, but his justifications often fall short.

Roberts's opinion is well done. He writes like an actual conservative. His final paragraph:

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 fif-
teen weeks. A thoughtful Member of this Court once coun-
seled 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 disposi-
tion 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.

Wow, the dissent is something. Very well done.

This an essential point in the dissent:

The majority would allow States to ban abor-
tion from conception onward because it does not think
forced childbirth at all implicates a woman’s rights to equal-
ity and freedom. Today’s Court, that is, does not think
there is anything of constitutional significance attached to
a woman’s control of her body and the path of her life. Roe
and Casey thought that one-sided view misguided. In some
sense, that is the difference in a nutshell between our prec-
edents and the majority opinion. The constitutional regime
we have lived in for the last 50 years recognized competing
interests, and sought a balance between them. The consti-
tutional regime we enter today erases the woman’s interest
and recognizes only the State’s (or the Federal Govern-
ment’s).

Some general thoughts on the ruling:

One of the many sad things is how this fires up the country for more unnecessary conflict and controversy. Because abortion for most people had ceased to be a big deal. The Casey decision created a situation that seventy percent of the country agreed with. You wouldn't know it was a settled and super majority status quo because of the obnoxiously loud people on the Right. But even the far Left, which was never happy with Casey, had largely accepted it as the best they could get and a framework to work within.

One reason O'Connor ruled the way she did in Casey was she didn't want to add to social conflict. And she ended up deciding wisely and an opinion the super majority of the country could agree to. It is a traditional conservative notion to avoid radical change and social conflict. So this is a reminder that these justices are not traditional conservatives but reactionaries and radicals.

There's an interesting conflict coming. The new right wing fight over parental rights rests constitutionally on the exact same case that was a precedent for Roe -- Meyers v Nebraska. The rights to make decisions about your kids are connected with the rights to make decisions about who you marry, what kind of sex you enjoy, whether to not have kids, etc. (a point made effectively in both the dissent and Thomas's frightening opinion). So it's particularly interesting to me that the current Right is at the same time attacking and embracing the same nexus of liberties with no clear articulation of how they parse the difference.

But this is one area where traditional conservative libertarianism and liberal embrace of liberties have usually aligned creating a super majority.

Some general thoughts on abortion:

I understand why the pro-life arguments (and those of the majority in this case) are compelling, as I was once very firmly pro life. And it wasn't an uninformed position. Even as a junior high student forming my views, I read Roe v. Wade. My mother was always pro choice, even when she was a conservative evangelical (views that were once consistent, actually, it was only conservative Catholics and not Protestants who historically had religious objections to abortion), so my embrace of a pro life position as an adolescent was my own considered choice and not the influence of my

upbringing.

But I grew up. The position I had embraced ran up against the complexities of the real world. I remember the first thing to chip away at that view. A college friend who was also a ministry major asked to talk to me. He and his wife were wrestling with a moral issue. They had learned that she was pregnant, but it was ectopic. The pregnancy needed to be ended in order to save her life. Yet, they had always been pro life and they were now caught off guard with how their values ran into a real life scenario. I'm glad my compassion has always been stronger than my ideology (which has served me well on numerous occasions). I agreed that the pregnancy had to be terminated. And clearly this revealed that our worldview was lacking in the complexity and nuance needed to deal with real life.

It took another decade and slow progression before I fully and switched sides and even became an activist for reproductive justice. There were intermediate steps in the process.

One of those intermediate stages came twenty years ago when The Christian Century ran an article about how if one's real goal was reducing abortions that by that point we had empirical evidence of what worked. The lowest actual abortion rates in the world were liberal European countries where it was fully legal and paid for by national health care. Those societies also had high rates of female equality and robust social supports for helping to raise children. The nations with the highest actual abortion rates were conservative countries where it was illegal, had lower rates of female equality, and poor systems of social support.

I've thought a lot today of the daughter of a church member I counseled a few years ago. The daughter and her husband had struggled to get pregnant. They eventually had. And then they learned that the fetus developing within her was severely disabled. If it survived to delivery, it would require numerous surgeries within just a few hours and even then would be unlikely to survive very long at all. They made the right decision, the compassionate, humane, maternal one, that it would be wrong to continue that pregnancy. The best way they could love and care for their child was to terminate the pregnancy. But, because of Nebraska law, this couldn't be handled as a normal health care decision. She was told by the physicians she knew and trusted that they couldn't help her and couldn't even discuss it with her. So she had to go to Planned Parenthood and had to act within less than a week because she was about run up against Nebraska's ban on abortion. Her grandmother came to me so angry that the government and politics had taken a difficult moral tragedy and made it worse. And she's right. The law in this situation was inhumane, lacking in compassion, anti-Christian and evil, in my opinion.

I often wonder if those on the right think that liberal feminist are getting pregnant and enjoy aborting fetuses? Because everyone I know has always struggled with it as a serious and significant moral issue. Which is what Justice Blackmun understood. As a conservative he understood that something so significant was best left to women to decide in their moral framework, rather than for pregnancy to be forced and imposed by government fiat. As the dissenters rightly point out many times, Roe and Casey were compromises, trying to balance the competing interests in ways that respected individual dignity and autonomy. And, frankly, the moral complexity of the issue.

So, I do get the appeal for some of the right to life view and that of the majority in this case. But I also think that the view of the majority is naiive to the point of dangerous. That it lacks maturity, complexity, and nuance. In essence, that their view is adolescent, sophomoric, and immature, and needs to grow up.

Posted at 05:05 PM in Supreme Court, Legal | Permalink | Comments (0)