A thorough background analysis setting the stage for the Supreme Court’s oral arguments in Dobbs v. Jackson Women’s Health

By Dave Andrusko

We’ve discussed on multiple occasions the range of responses to the Supreme Court’s decision to hear Mississippi’s law which bans abortions after the 15th week, ranging from the thoughtful to the apocalyptic. As particularly useful articles crop up about Dobbs v. Jackson Women’s Health, we’ll talk about them leading up to oral arguments this fall, followed by an opinion presumably in May or June 2022.

Several friends forwarded a piece written by Frank E. Lockwood for the Arkansas Democrat-Gazette. By and large it’s a first-rate overview, punctuated by asides that are (presumably) unintentionally hilarious.

If you read to the end, you’ll find an admission of facts that the the chief pro-abortion spokespersons always manage to lose sight of (no doubt intentionally).

That is, namely that we have no idea how far the justices will move in the direction of pruning back the legal thicket that is Roe v. Wade. But we do know, as Holly Dickson, executive director of the ACLU of Arkansas, told Lockwood, “I think most people agree and understand that it won’t be the end of abortion.” (She, of course, adds –misleadingly–“It would be the end of safe, legal, accessible abortion in some places, including Arkansas.”)

The “patchwork” of laws Dickson laments that would follow a genuine scaling back of Roe is the situation that existed prior to the sledgehammer Justice Blackmun laid to the abortion statutes of all 50 states in 1973: Abortion laws were the states’ business.

Here are four (of many) points that could be made:

#1. “For decades, socially conservative lawmakers in states across the country passed sweeping abortion restrictions only to see them struck down by federal judges.

While unenforced, these measures remain on the books in Arkansas and elsewhere.

Now, with the U.S. Supreme Court considering the constitutionality of Mississippi’s 15-week ban, Republican-leaning states are dusting off these long-dormant laws — and they’re passing new ones — so they’ll be ready if the justices allow additional limits.

Exactly what you would expect. People either forget or never knew that while Roe (in cahoots with Doe v. Bolton) nationalized abortion, many state abortions laws–whether protective or allowing of virtually all abortions–remained on the books. That is why you see comfortably blue states eradicate pro-life laws. That is why you see comfortably red states waiting for the light to turn green.

Likewise—again in both pro-life and pro-abortion states—there is also action to pass new laws. Why do I reiterate this point? Simply because in the national media, it is never talked about. We never read about the extremism on display in places such as Massachusetts and Vermont and New York, to name just three. 

#2. “Two dissenters [Justices Rehnquist and White] denied that the U.S. Constitution contained a ‘right to privacy,’” Lockwood announces. Not true. Here’s what Justice Rehnquist said: “I have difficulty in concluding, as the Court does, that the right of ‘privacy’ is involved in this case.” 

Not that it doesn’t exist, but that the right of privacy is not involved here. This illustrates the nub of Justice Blackmun’s far-flung conclusions: they state as fact what is, at minimum, a distortion, at worst a deliberate misreading.

As Susan Wills observed in a brilliant critique

Roe v. Wade locates a pregnant woman’s “constitutional” right of privacy to decide whether or not to abort her child either “in the Fourteenth Amendment’s concept of personal liberty …, as we feel it is, or … in the Ninth Amendment’s reservation of rights to the people.”

The Court does not even make a pretense of examining the intent of the drafters of the Fourteenth Amendment, to determine if it was meant to protect a privacy interest in abortion. Clearly it was not. The Fourteenth Amendment was not intended to create any new rights, but to secure to all persons, notably including freed slaves and their descendants, the rights and liberties already guaranteed by the Constitution.
[My underlining.]

#3. Lockwood quotes NRLC Executive Director David N. O’Steen, Ph.D., who 

isn’t surprised that abortion rights activists are worried about Roe’s survivability.

“That original decision was so shaky, so lacking in any real constitutional basis, that from Day 1, they had reason to be concerned,” he said.

It cannot be emphasized enough what a shoddy piece of analysis Justice Blackmun foisted on the American public. Not only did Roe and Doe cost the lives of over 62 million unborn babies, they also subverted deeply fundamental principles of self-government and human equality. 

To quote Wills again

For many Americans, Roe is a symptom of and catalyst for a continuing decline in American culture and institutions. It represents a tragic failure of the government, an abdication of its duty to defend the vulnerable and innocent. The judicially-created regime permitting abortion on request throughout pregnancy has eroded principles on which this nation was founded – the sanctity of life, the equal dignity of all, and impartial justice. Even the fundamental principle of self-government is shaken when seven unelected judges can overturn the will of the people expressed in the laws of 50 states.

#4.  The 1965 case of Griswold v. Connecticut was the launching pad for Roe. Lockwood writes

Justice William O. Douglas wrote that previous cases “suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.”

(The Oxford Dictionary defines penumbra as “the partially shaded outer region of the shadow cast by an opaque object.”)

Lockwood could have added a definition of “emanations” as well. Here are two. “An abstract but perceptible thing that issues or originates from a source”; or “a tenuous substance or form of radiation given off by something.”

You get the point. Emanations and penumbras are legal gobbledygook to hide that there is nothing in the Constitution that legalized abortion, let alone abortion on demand.  And

#4. “In Roe v. Wade, the Supreme Court said women have a constitutional right to obtain an abortion, at least early in a pregnancy. The 7-2 ruling invalidated abortion laws in states from coast to coast.”

Second sentence, absolutely correct. First sentence, a pro-abortion myth that refuses to die, no matter how many times you run a stake through its heart. Roe and Doe essentially legalized abortion on demand. 

The last 48 years have witnessed relentless attempts by pro-lifers to compel the justices to trim back the abortion-on-demand regime which includes but is not limited to taking a fresh look at the assumptions it subscribed to in 1973 that are simply no longer tenable.