For 50 years, abortion was legal everywhere in this country, because the SCOTUS ruled it was, in the "Roe v Wade" case. But that ruling was dismantled recently by a different SCOTUS, several of whose members said, when asked directly, that "Roe" was law (and, by implication, untouchable according to stare decisis), but were given a new opportunity with the "Dobbs v Jackson Women's Health Organization" case. Setting aside what appears to be gross dishonesty and manipulativeness on the parts of these new Justices, when they were being considered for confirmation, and gave every appearance of promising not to overturn "Roe," we're left to wonder about their underlying theory in "Dobbs."
It is important to note that the SCOTUS is tasked with defending the Constitution of the US -- to be sure that any subsequent rulings are consistent with the Constitution, or as consistent as anyone could think the Constitution implied. And the SCOTUS is required to honor past SCOTUS rulings, even if those rulings were made by earlier, or even much earlier SCOTUS Justices. In the cases of the most recently confirmed SCOTUS members, they very clearly said, in response to having very clearly been asked, that they would honor the earlier ruling regarding abortion. And if that promise seems like a sick joke, or essentially criminal now, that's the purpose of this discussion: how and why did they renege on their promise?
And let me say that I have not read the "Dobbs" decision. I do not have access to it. I have read as much as I can about it on Wikipedia, which calls itself "the free [online] encyclopedia." There are some people who consider Wikipedia to be somehow left wing or left leaning. I have never found that to be true. I once wrote to the founder and publisher of a very distinctly left wing publication to ask why his publication was not listed on Wikipedia. He said Wikipedia will only create a "page" for topics that have a certain kind and quality (and possibly extent) of bibliography, and his publication didn't. Not enough people published enough about his publication to qualify it for a Wikipedia page. If I assume his explanation was correct, then Wikipedia has that requirement, and it's not political. Also, Wikipedia can be edited by its readers. Those proposed edits are sent to whoever is the most relevant of the many Wikipedia editors and experts, to see if they agree with it. On a number of occasions, I have proposed edits. When the edits have been grammatical, they have been adopted. When they have been what someone might think is my opinion, without added bibliography, they have been stricken. So I feel confident relying on Wikipedia, which is the online and constantly changing version of the Encyclopedia Brittanica, on which I would also have felt confident relying.
So, getting back to the topic at hand -- abortion -- many or most people who oppose it say that "abortion is murder," which it certainly is, in a slightly distorted sense. It is the ending of life of a thing that is living in a condition which it requires, and without which it could not live. To give an even more extreme analogy, the Old Testament proscribes the "spilling of seed," as if male masturbation was the same as murder, because had the "seed" been introduced to an egg from a female, it might have become a fetus. Likewise, women who consider themselves Jewish, and are on the more observant side, cannot touch anyone for two weeks after their menstrual period, and until they undergo a cleansing procedure, because an unfertilized egg that is expelled in a menstrual period is considered to be the same as a death, and anyone who comes into contact with a dead person cannot touch a living person, until... According to people who believe in those things. And if you don't believe in those things, and don't consider that kind of stricture necessary or appropriate, hold that thought.
In any event, many of the people who consider and call themselves "pro-life" are not "pro-life" at all. We've had this discussion before, and these people do not generally (except for some of the Catholics) lift a finger to protest capital punishment, nor do they agitate against the profusion of privately held guns in this country, even though the one and only purpose of the former is to take a life, with no benefit or compensation to anyone else, and a strikingly common consequence of the latter is the death of someone, or a collection of people, some or all of whom are commonly innocent of any crime, and in the absence of "due process," as guaranteed by the 14th Amendment.
So, what, then, was "Dobbs" about? The first part of the title of this post was a wish for "Life, Liberty, and the Pursuit of Happiness." But that phrase is not part of the US Constitution. It's part of the Declaration of Independence. The "Life" part of that quote didn't motivate the SCOTUS' decision in "Dobbs." And even if the SCOTUS told itself that the Declaration of Independence was somehow related to the Constitution, this SCOTUS, and many, most or all of the former ones, have on occasion refused even to consider death penalty cases from various of the states. If they cared about Life, or were "pro-life," they'd hear them all, and disqualify all of the death penalties.
What, then, was the "Dobbs" decision about? The easy answer is "nothing." But it's worthy of more examination than that. One possible theory is that "Dobbs" was about the "pro-life" scam. But since the "pro-life" crew aren't really "pro-life," then it wasn't really about that. A second possibility is that "Dobbs" was about supposedly religious people imposing their personal religious preferences on all Americans, including Americans who either don't share those religious preferences, or might in theory share some of them, but they don't interpret them that way. This, too, is entirely personal. But "Dobbs" can't be about that, because "Dobbs" was a SCOTUS ruling and the SCOTUS is committed to adhering to the US Constitution, the First Amendment of which says the "state" (the Union) cannot impose a religion, or perhaps religion (freedom of religion includes freedom from religion).
We have to look more deeply. According to Wikipedia, "the case concerned the constitutionality of a Mississippi law that banned most abortion operations after the first 15 weeks of pregnancy. The Mississippi law was based on a model by a Christian organization...with the specific intent to provoke a legal battle that would reach the Supreme Court and result in the overturning of 'Roe.'" So, this leaves us with a few problems. If the impetus behind the action was religious tyranny, then any normal SCOTUS would have ruled against it simply on that basis, citing the First Amendment. A second problem, which we have discussed before, is that allowing abortion until 15 weeks of pregnancy is allowing abortion. And to complicate matters, the 2018 Mississippi Gestational Age Act permitted abortion until 15 weeks, unless there was a medical emergency or severe fetal anomaly, but not in cases of rape or incest. This kind of theorizing is entirely incoherent, inconsistent, and arbitrary, and still means that abortion is legal. So Dobbs had no rational foundation. That's not to mention that more than 93% of abortions occur by 15 weeks, so Dobbs' argument doesn't accomplish whatever Dobbs wanted to accomplish. It doesn't accomplish anything, unless it's intended to prevent the less than 6% more abortions that occur by 20 weeks. Anti-abortion crusaders, by the way, like to raise the level of histrionics by claiming that without limitations, there are abortions more or less at term. This is an invention.
An interesting point made on the Wikipedia page was that "From the American revolution to the mid-19th C, abortion was legal until quickening in every state under the common law, and not an issue of significant controversy." Those who think of themselves as "originalists" can therefore be reassured that there was no "significant" original argument against or restriction of abortion. Quickening is defined as the time that a fetus' movement can be felt by the mother, which was considered a sign of "personhood," and which variously occurs between 18 and 20 weeks of gestation. So "Dobbs is more restrictive than universal common law throughout this country, and it applies to fetuses that are not defined as people. Dobbs' argument gets thinner and thinner. And the SCOTUS' agreement with it has essentially no foundation.
It's essential to note that people who want abortions are pregnant, and didn't want to be. They took whatever precautions they thought would be effective to prevent it. There is no law saying that fertile people must produce offspring, and as many as possible. I give an abbreviated "sex talk" to many of my patients and couples. I tell them that there are three good outcomes of sex. The first is pregnancy, but no one wants that most of the time. People work against it, otherwise all couples would have dozens of children. (The other two good things that come from sex are pleasing the man, which is more or less comically and pathetically easy to do, and pleasing the woman, which is the art, the beauty, and really the main purpose of sex. Except for those extremely rare times when the couple wants pregnancy, in which case pregnancy and pleasing the man, without which pregnancy doesn't occur, are the most important. But still, no one wants pregnancy almost ever, and men are still comically and pathetically easy to please.)
So, in reality, "Dobbs" wasn't about anything, and didn't accomplish anything. (Except it led other states and jurisdictions to limit abortion to times like six weeks, when many women don't even know they're pregnant, or to never. But this kind of limitation is irrational and inconsistent with the history of this country.) It should really not have been challenged, unless anyone in Mississippi cared about girls or women who got pregnant from rape or incest. At least some of them don't appear to have. Unless the omission of these victims was Dobbs' way of getting this to the SCOTUS, which is said to have been his aim.
But we do leave out two issues. One is the "Life, Liberty, and the Pursuit of Happiness" theme. Abortion deprives a fetus that is not considered to be a person of Life, such as it is. Imposed parenthood for people who don't want children, perhaps yet, and may not be in a situation, or age, to rear them deprives those people of Liberty and the Pursuit of Happiness. If the reason not to toss a coin is personal religious devotion of people who are not the parents of this early pregnancy, then the US Constitution says this imposition cannot be applied.
The other issue is the 14th Amendment, and its guarantee of due process. The temptation for some is to concern themselves with the due process that is owed to the early fetus that is not yet a person, and which it had always been legal in this country to abort. That certainly seems to be a question that answers itself.
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