Leak of SCOTUS ruling on Jackson vs. Dobbs
#2. Issues to watch in 2022. January 3, 2022. Roe v Wade
In January - we looked at the issues that would shape 2022. The Supreme Court ruling in the Jackson vs. Dobbs was number 2. From CNN tonight.
In a stunning breach of Supreme Court confidentiality, Politico has obtained what it calls a draft of a majority opinion written by Justice Samuel Alito that would strike down Roe v. Wade.
The draft was circulated in early February, according to Politico. The final opinion has not been released and votes can change before opinions are formally released. A Supreme Court spokesperson declined to comment to CNN.
CNN has not independently confirmed the document’s authenticity. Politico says it has authenticated the draft.
According to the draft, the court would overturn Roe v. Wade’s holding of a federal constitutional right to an abortion. The opinion would be the most consequential abortion decision in decades and transform the landscape of women’s reproductive health in America.
In the draft opinion, Alito writes that Roe “must be overruled.”
“The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision,” Alito wrote. He said that Roe was “egregiously wrong from the start” and that its reasoning was “exceptionally weak, and the decision has had damaging consequences.”
He added, “It is time to heed the Constitution and return the issue of abortion to the people’s representatives.”
“That is what the Constitution and the rule of law demand,” he said, according to the draft.
Already nearly half of the states have or will pass laws that ban abortion, while others have enacted strict measures regulating the procedure.
No doubt this was Leaked by someone who- like the BLM riots - hoped that a pre release would make the court change their mind. Regardless, tomorrow will be full of rage, and for a change, it won’t be directed at Elon.
After a slight censorship detour and the resulting decision to stop posting entirely to LinkedIn, we return to the series "What to Watch in 2022." It seems only fitting that I piss off every reader of the newsletter in some capacity and discuss Roe vs. Wade, the controversial Supreme Court decision that effectively legalized abortion in the United States.
On December 1st, the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization. The issue in Dobbs revolves around a 2018 law Mississippi passed, called the “Gestational Age Act.” The Act prohibited all abortions, with few exceptions, after 15 weeks’ gestational age. Jackson Women’s Health Organization, the only licensed abortion facility in Mississippi, filed a lawsuit in federal district court challenging the law and requesting an emergency temporary restraining order (TRO). After a hearing, the district court granted the TRO while the litigation proceeded. Ultimately, the 5th Circuit Court of Appeals held that the state had not provided evidence that a fetus was viable after 15 weeks, and ruled in favor of Jackson. The case was appealed to the Supreme Court, and now we await a final ruling.
In common conversation Roe v. Wade is widely regarded as "the right to abortion” and most arguments for or against are premised on morality and viability of the baby. Contrary to popular misconception, the holding in Roe was less about morality and more about procedural process. The court in Roe interpreted the 14th Amendment to grant women certain rights to privacy, including privacy to make medical decisions with a doctor in the first trimester. Roe justified this protection by holding that prior to viability of the fetus, a state has no warranted justification to legislate over 14th Amendment protections. The court further held that prior to viability, in the second trimester, the state's interest was limited to the health of the mother. That’s a lot of legal jargon, but in short, the court used a legal loophole and a stretch of the meaning of the 14th amendment to not allow the state to weigh in before a baby could survive on it’s own (imagine Margot Robbie in a bubble bath explaining this and it’s - lot better…).
Back to Dobbs, 15 weeks is clearly in the 2nd trimester, and thus under current legal precedent, the state can only have influence when they are protecting a woman's health, without establishing fetal viability sufficient to create a life the state can justify protecting.
Now, I'm not a lawyer, so this next part I want to caveat, as it comes under my limited knowledge, but I have heard podcasts on the topic and researched it and THEIR experts say this matters. To understand why the 1973 Roe v Wade case depended on the 14th amendment, you must also know that in 1965, the U.S. Supreme Court struck down a law banning the distribution of birth control to married couples, ruling that the law violated their implied right to privacy under the U.S. Constitution. Similarly, in 1972, the Supreme Court struck down a law prohibiting the distribution of contraceptives to unmarried adults on the same grounds. Thus it logically followed that if privacy could be invoked to prevent pregnancy, it could be used to terminate one. Thus, the right to privacy became the critical justification for the holding in Roe.
It's also important to note that in 1973, when RBG was working for the ACLU, she was preparing to bring a case to the Supreme Court where she represented Captain Susan Struck, an Air Force Nurse, who became pregnant and was given two options by the military. Either she could have an abortion or she could leave the military (this was prior to Roe v. Wade being decided). When SCOTUS agreed to hear the case, the Air Force realized they had a real chance of losing and so changed the policy to allow Captain Struck to have the baby. RBG always supported abortion but felt that Roe v. Wade as a privacy issue was too much, too soon, and in her words “Doctrinal limbs too swiftly shaped, and may prove unstable.” She instead wanted abortion decided on the basis of gender equality, echoing sentiments that impeding access to abortions would hinder women's equality.
Ultimately, the Mississippi case before the Supreme Court is tasked with answering one question: are all pre-viability prohibitions on elective abortions unconstitutional? Ultimately, the Supreme Court appears likely to determine that the holding in Roe was improper and find that states may have a legitimate interest in regulating abortion prior to viability of the fetus. Thus, they may rule in favor of Dobbs, the Mississippi Department of Health (man, I wouldn't want this to be Jackson v. Ramsden-Wood....).
Polls say abortion is the number 1 issue for 4% of people and that 81% support a ban on abortion in the third trimester. So statistically, it looks like most Americans share many opinions on the topic. Yet despite the general consensus of Americans on the topic, we are guaranteed to witness heated debate.
Regardless of your view, and I am not going to weigh in on this issue at all, it is an absolute hot button issue that will lead to discussions of changing the Supreme Court, challenging conservatives, bias, religion, and all forms of other vitriol which speak to the ability of a woman to have an abortion NOT the administrative or procedural justification for state regulation.
Stuff's about to go down, and expect to see a new level of anger and proclaiming injustice (and justice) on both sides of the aisle. You think a political divide existed over COVID policy, I’ll just say “wait for it.” All reasons why THIS is the second issue to watch in 2022, and it’s a big one.
#hottakeoftheday