Search the KHIT Blog

Friday, June 24, 2022

"The Constitution does not confer a right to abortion;"

"Roe and Casey are overturned;"
Women have now effectively been written out of the 14th Amendment.
"The authority to regulate abortion is returned to the people and their elected [state] representatives."
Former Vice President Mike Pence wasted no time in coming out in support of federal legislation outlawing abortion nationwide.

Justice Alito asserts that, because the word "privacy" does not appear in the Constitution, it "confers" no such right. Well...
This goes to an old beef of mine going back decades.

I ran an ASCII text copy of the complete U.S. Constitution through a text analysis program.
Exported the results to an Excel sheet, where I tabulated the summary findings.

Pick an English language word at random. Raw base probability is about 99.5% that it won't be in the U.S. Constitution. So spare me that fatuous notion that because a given word doesn't appear in the Constitution, there can be no associated right. If the 4-word phrase "secure in her person" has any meaning at all, it comprises a lexically clear synonym for presumptive "privacy." (In that regard, the logical semantic meanings of phrases is what matters, not individual words. Need we seriously have to point that out? Apparently so.)
And, no, "presumptive" is not a synonym for "absolute." C’mon, people. Moreover, kindly spare me the old Borkian "privacy to to what, senator?" canard. The Constitution is not a checkbox tally sheet of fine-grained behavioral specifics.
A dark day, this one.

Curiously, no mention of Loving vs Virginia.
‘A revolutionary ruling – and not just for abortion’: A Supreme Court scholar explains the impact of Dobbs

The Supreme Court’s decision to reverse 50 years of constitutional protection for the right to get an abortion is more than 200 pages long. Morgan Marietta, a political scientist at the University of Massachusetts, Lowell, and editor of the annual SCOTUS series at Palgrave Macmillan, studies the ideas and ideology of the court. We asked him to illuminate the thinking that lies behind the momentous decision.

What does this ruling mean?

This is a revolutionary ruling. Not just for abortion, but for the ongoing debates over the nature of rights under the Constitution.

The ruling signals a massive change in how we read the Constitution, from a living reading to an original reading. The court has firmly rejected the theory of the living Constitution, which argues that the meaning of the document’s language changes as the beliefs and values of Americans change.

The living view, which prevailed at the Supreme Court during the second half of the 20th century, means that additional rights can emerge over time, including abortion, privacy and same-sex marriage. The living Constitution is updated through the judgment of the justices of the Supreme Court, who determine when public values have changed, and hence new rights have emerged.

Originalism, which is the approach taken by the justices who overruled Roe, rejects the living Constitution. In the originalist view, the Constitution is static until officially altered by amendment. It does not evolve on its own without public approval. The role of the justices is to determine the original public meaning of the text, but to leave other decisions to democratic representation through elections.

Regarding abortion, the conclusion of Dobbs is clear: “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.”

“Arrogated” is an unusual word; it means to take without justification, implying that it is done in an arrogant way. That is the core argument of Dobbs: Roe was the court being arrogant, taking power the justices didn’t have, which rightly belongs with “the people,” a Revolutionary-era term in a revolutionary ruling…
Worth yout time. Read all of it. There has been an absolute blizzard of excellent analytical commentary writing online since the Alito Opinion was published on Friday. I've been reading away since the decision was announced.

The explicit rights clearly described and enumerated in the Bill of Rights — freedom of religion, freedom of speech, freedom to bear arms and others — are rising in influence, specifically because they have been approved and ratified by the people.
I have to again (Quixotically?) call emphatic Bullshit on spurious assertions that the 4th Amendment, in contrast to the examples alluded to above, does not "enumerate" a presumptive, broad right to privacy. Other fundamental individual prerogatives set forth in the Bill of Rights are equally brief and lacking in detailed specifics. And, then there's the 9th Amendment.  to wit, citing my 1998 grad Thesis
While the word “privacy” admittedly appears nowhere in the text of the Bill of Rights, neither do the terms “obscenity,” “sodomy,” “pregnancy,” “sacred marital bedroom,” or “drug abuse.” Those who espouse a view of the Constitution as a document of broad moral principles find such lack of specificity compelling in their argument against simplistically limited textual “strict construction.” Indeed, the 9th Amendment—The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”is universally cited by “broad construction” advocates to counter the observation that the specific term “privacy” is absent from the Constitutional language. To the “Constitution-of-Principle” advocate, the very brevity and generality of the Constitutional text is dispositive evidence that, far from being a document essentially no different than a commercial insurance contract, the “large-C” Constitution provides the general vision of justice and procedural guidelines for those who must administer ongoing the “small-c” constitution comprised of the very breadth of our social fabric.
Democrats vow to enact a federal law guaranteeing abortion/reproductive autonomy rights nationally. Republican aggressively vow the opposite—federally outlawing abortion nationwide (so much for deference to the states). Given the current (and likely lengthy) makeup of the Supreme Court, Democrats have the more difficult task, i.e., legislation worded in a way that can survive an immediate SCOTUS challenge. Beyond that, hard-right activists will openly push for outlawing contraception, same-sex marriage (& perhaps interracial wedlock), and all things LGBTQIA. Gonna be a mess.

Like we don't already have enough to tend to.

Dr. Michelle Goodwin in the NY Times:
No, Justice Alito, Reproductive Justice Is in the Constitution 
...Black women’s sexual subordination and forced pregnancies were foundational to slavery. If cotton was euphemistically king, Black women’s wealth-maximizing forced reproduction was queen.

Ending the forced sexual and reproductive servitude of Black girls and women was a critical part of the passage of the 13th and 14th Amendments. The overturning of Roe v. Wade reveals the Supreme Court’s neglectful reading of the amendments that abolished slavery and guaranteed all people equal protection under the law. It means the erasure of Black women from the Constitution.

Mandated, forced or compulsory pregnancy contravenes enumerated rights in the Constitution, namely the 13th Amendment’s prohibition against involuntary servitude and protection of bodily autonomy, as well as the 14th Amendment’s defense of privacy and freedom...

The 14th Amendment opens with the sentence, “All persons born or naturalized in the United States … are citizens of the United States and of the State wherein they reside” and as such would be protected by the laws of the United States. Such language applied to infants born to Black women, changing the provisions of law that had long denied Black children citizenship and the protection of laws. Lawmakers were understandably concerned about overturning states laws that had denied children the dignity of personhood.

Justice Samuel Alito’s claim, that there is no enumeration and original meaning in the Constitution related to involuntary sexual subordination and reproduction, misreads and misunderstands American slavery, the social conditions of that enterprise and legal history. It misinterprets how slavery was abolished, ignores the deliberation and debates within Congress, and craftily renders Black women and their bondage invisible.

It is no hyperbole to say that the Supreme Court’s decision in the Dobbs case is in league with some of the darkest rulings — Plessy v. Ferguson, which opened the floodgates to “separate but equal” laws that ushered in Jim Crow, and Buck v. Bell, which sanctioned states’ eugenics laws permitting forced sterilization of poor women
"Enumeration"the act or process of making or stating a list of things one after another; the list itself.
4th Amendment"The right of the people to be secure in their persons, houses, papers, and effects..."
"Secure"free from danger; affording safety; free from risk of loss. 

The Dobbs ruling’s insistence that the Court should not impede states from making policies in which they weigh the interest in life for themselves, through their democratic processes, is tragicomic, even gruesome, coming the very day after the Court did just that in striking down a New York State gun-licensing law, based on the Court’s expansion of an individual right to bear arms under the Second Amendment.

In Planned Parenthood v. Casey, the plurality that reaffirmed Roe v. Wade wrote that “liberty finds no refuge in a jurisprudence of doubt”—meaning that, if the public is in doubt about whether constitutional rights are in danger of disappearing, that is not liberty. Dobbs leaves no doubt that the federal constitutional right to abortion is gone. And it ushers in an era of grave doubt about the status of liberty in the United States
.—Jeannie Suk Gersen, Harvard Law School
"An era of grave doubt about the status of liberty in the United States."

Particularly—for now—the Constitutional liberty of women.

1 comment:

  1. "presumptive" is not a synonym for "absolute." TOTALLY!