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Abortion; Roe v. Wade
Updated on July 26, 2022
With your vote, you can act; and you have the final word.
“I had planned to speak about our strategy for improving care for pregnant women and mothers across our country. And as you know, on the way here, however, we learned that the United States Supreme Court had rendered its decision in Dobbs v. Jackson Women’s Health Organization.” Vice President Kamala Harris on June 24, 2022, speaking about the Supreme Court Decision to Overturn Roe V. Wade.
“This opinion also says, when you read it, that abortion is not deeply rooted in our nation’s history. … In holding that it is not deeply rooted in our history, today’s decision on that theory, then, calls into question other rights that we thought were settled, such as the right to use birth control, the right to same-sex marriage, the right to interracial marriage.”
How can a Fundamental Constitutional Right be Taken Away?
The U.S. Supreme Court is made up of nine justices, each of whom was appointed by a president, and whose appointment was confirmed by the Senate. In each case accepted for review by the Court, the justices vote for the competing point of view they prefer, which is expressed as an opinion written by one of them. The opinion getting the most votes is called the majority opinion; the losing one is called the dissenting opinion. The Dobbs vote was 5 to 4, meaning that Roe was overturned, and a fundamental right was taken away, by a single vote.
In March 2016, Senate Majority Leader Mitch McConnell tried to justify denying a vote on Obama’s nomination of DC Circuit Court Judge Merrick Garland to replace Justice Antonin Scalia: “All we are doing is following the long-standing tradition of not fulfilling a nomination in the middle of a presidential year.” There is no such tradition. McConnell’s fabricated history to justify a 2020 Supreme Court vote, September 24, 2020.
“Trump, the nation’s 45th president, worked closely with Majority Leader Mitch McConnell and other Senate Republicans to reshape the federal judiciary – particularly the appeals courts. … The three Supreme Court justices he appointed – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – are the most by any president since Ronald Reagan.” See How Trump compares with other recent presidents in appointing federal judges, by John Gramlich, January 13, 2021.
Had President Obama and the American voters who elected him not been denied confirmation of Merrick Garland during the last year of the Obama presidency, the U.S. Supreme Court would be less unbalanced than it is today. But now, with one-third of the justices being conservative appointees of Donald Trump, right leaning justices feel – and are – empowered to re-shape the fundamental rights that American citizens once took for granted. Justice Clarence Thomas signaled as much in the opinion he wrote in Dobbs. In two other opinions released the same week as Dobbs, the Court struck down New York state restrictions pertaining to carrying concealed weapons and removed some of the protection provided by Miranda v. Arizona.
“Today, I invite all people to stand together in defense of one of the most fundamental ideals and principles that for generations, for centuries, I believe, we have held dear, which is that fundamental principle about the importance of liberty — to stand for liberty, to stand for freedom, to stand for self-determination, and for the right to privacy.
Elect a Congress That Will Fix This
The Court’s action is motivating the messages: “Get out and vote in the 2022 mid-term election” and “Vote for Democrats.” Democratic majorities in the Senate and House will pass nationwide laws restoring womens’ rights. Republicans will do the opposite.
“You have the power to elect leaders who will defend and protect your rights. And as the President said earlier today, with your vote, you can act, and you have the final word.” Vice President Kamala Harris, June 24, 2022.
It takes a left-of-center president and Senate majority to appoint and confirm a liberal Supreme Court justice. In real terms, what this means is, voters will have to keep Democrats in the White House and Senate if America wants to re-balance its Supreme Court. The loss of individual freedoms at the hands of GOP appointees in 2022 is unprecedented. Now, rather than grieving what’s in the rear view mirror, voters need to turn their attention to the mid-term elections and ponder what this strongly conservative Supreme Court will do next.
After having made the decision based on a reading of a document that was frozen in time in the 1860s when women didn’t even have the right to vote, the court now practically dares the women of America to go to the ballot box and restore the very rights they’ve just taken away.President Joe Biden, July 8, 2022
Justice Thomas has already written that more rights – individual freedoms – should be taken away. Justice Alito’s conservative view is that the Court should only consider what was expressly written into the Constitution (in other words, run a modern world with old laws that can’t be updated). The 2021-2022 saw Republican-appointed justices rolling back individual rights, choosing religious doctrine over individual freedoms in a country founded on freedom and separation of church and state. You just can’t get more ideological and extreme right than that, with more to come in the Court’s next term.
… with the addition of Barrett, of whom Republican Sen. Lindsey Graham declared during her confirmation hearing: “This is the first time in American history that we’ve nominated a woman who’s unashamedly pro-life and embraces her (Roman Catholic) faith without apology.https://www.cnn.com/2022/07/26/politics/supreme-court-john-roberts-abortion-dobbs/index.html
Responding to protesters critical of the Supreme Court’s overturning Roe v. Wade, the President’s message is that Americans need to vote for senators and representatives who will enact a national law guaranteeing abortion rights. “Go out and vote, for God’s sake,” Biden said. “There’s an election in November. Vote!”
“I can tell you that on the street, what you hear is a bubbling, seething cauldron of anger at the Republican Party for putting in these antediluvian judges who think they can take us back to the 18th century,” said Jay Inslee, the Democratic governor of Washington state. “My spidey sense and the polling indicate it’s going to help people decide not to vote for the red team.”
Commenting about Republican plans to ban abortion nationwide, the President said, “Let me tell you something. As long as I’m president, it won’t happen because I’ll veto it. So the choice is clear: If you want to change the circumstance for women and even little girls in this country, please go out and vote.”
May 11, 2022
To understand the abortion debate stemming from the U.S. Supreme Court’s 1973 Roe v. Wade decision, one must understand substantive due process which allows courts to protect certain fundamental rights from government interference, even when a specific protection is not directly mentioned in the US Constitution. In Roe v. Wade and subsequent decisions on abortion, the Court recognized a constitutionally based liberty, limiting the reach of laws that would otherwise interfere with a person’s right to make their own decisions – in this debate, a woman’s right to choose.
For a better understanding of substantive due process, its application to fundamental rights oft taken for granted and, given the current composition of the U.S. Supreme Court, how those rights can be taken away, see Legal.com’s article: Substantive Due Process.
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