“I do not view abortion as a choice or a right - it’s always a tragedy. And I think that it should be rare and safe. And I think we should be focusing on how to limit the number of abortions.” – Senator Joe Biden (2006)
Commentary by Sanford D. Horn
July 8, 2022
When the histrionic caterwauling has subsided, and people actually read the Supreme Court decision authored by Justice Samuel Alito, for the 6-3 majority in Dobbs v. Jackson (MS) Women’s Health Organization, they will comprehend the correctness of that decision. Essentially, Dobbs overturns both Roe v. Wade (1973) and Planned Parenthood of Southeastern PA v. Casey [Gov. Bob] (1992).
Overturning Roe did not overturn or end legalized abortion in the United States. It is imperative to understand that the United States Constitution does not now, nor has it at any time since its inception in 1789, conferred to the people a right to an abortion. Dobbs simply rights an egregious wrong made by the Supreme Court in 1973. This has long been a 10th Amendment issue, and now that it will revert back to the states, where it belongs, a greater number of Americans will have a voice in this issue - not 535 members of the two houses of Congress, not 50 state legislatures, not nine Supreme Court justices, and certainly not one president.
It is incumbent upon the 50 state legislatures to empower the voting citizens by placing the question of abortion on the ballot. This relinquishes power from the Supreme Court, and places it back into the hands of the American people. This preserves democracy, not stripping it away as so many are claiming in a panic.
"The authority to regulate abortion must be returned to the people and their elected representatives," said Justice Samuel Alito, who authored the majority opinion in Dobbs.
The outpouring of emotions on both sides had been expected. The pro-life community - growing stronger every day - was overjoyed. After all, 49 years of the March for Life in frigid January in our nation’s capital to commemorate the anniversary of Roe, to reach this conclusion, made them ecstatic with joy and glee. While celebrating their court ruling, the pro-life folks also recognized they have their work cut out for them - fighting the legality of abortion in each of the 50 states of the Union.
The pro-choice and pro-abortion crowd continued their threats against the justices and the building in which they work. This, weeks after an attempted assassination against Justice Brett Kavanaugh. Attempts to intimidate, via fear and violence failed to impact the justices.
The kneejerk reaction was that abortion is now illegal. Not only has abortion been ended, but somehow those same people began claiming that the Dobbs decision will eventually attempt to end legally obtainable contraceptives, reverse same sex marriage as well as inter-racial marriage. The pro-choice/pro-abortion side decided that Justice Clarence Thomas is responsible for these future decisions. Has anyone ever met Ginni Thomas - the white wife of Justice Thomas? These unnecessary hysterics only stoke the flames of violent, illegal behavior. Joe Biden didn’t help matters as he wrongly suggested contraception and marriage rights are in jeopardy during a national speech.
“To hell with the Supreme Court! We will defy them,” said Representative Maxine Waters (D-CA), never at a loss to incite.
Jane’s Revenge, a pro-abortion organization affiliated with Antifa, hellbent on disruption of lives and destruction of property, exacerbated matters, vowing nights of rage and physical behavior, continued attacks on crisis pregnancy centers, pro-life centers, and churches. They have already waged attacks on more than 40 properties with signs and graffiti. “To our oppressors, if abortions aren’t safe, you’re not either,” is the common mantra of Jane’s Revenge, both written and orally. Peaceful protests are protected speech, but violence and vandalism most assuredly are not.
Both Joe Biden and Speaker of the House Nancy Pelosi (D-CA) condemned the High Court’s ruling by saying they took away a Constitutional right, which is patently false. Additionally, the White House refused to condemn not only the violence and illegal protesting at the homes of several of the justices, the White House press secretary actively encouraged those illegal acts - federal crimes, violating federal law. Once again, violence is not protected speech. Notice how far Biden has fallen since his 2006 comment above, now a tool of the pro-abortion crowd
To set the record straight, from the majority opinion penned by Justice Alito: “...we have stated unequivocally that ‘[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion…’ We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life…’ It’s hard to see how we could be clearer.”
For those believing Roe was settled law has not studied their history. Since when can’t cases be reversed or overturned? Should we revert back to Plessy v. Ferguson (1896)? For if we do, there’s no Brown v. Board of Education [Topeka] (1954) - perhaps the most glaring example of a case needing to be overturned, aside from Dred Scott v. Sandford (1857).
In Dred Scott, Scott sued for his freedom, noting he had been transported to Wisconsin, which was free territory. In losing, the ruling from Chief Justice Roger Taney said that slaves were not citizens and thus could not expect any protection from the federal government. That decision could not have been more odious in the history of the Supreme Court. It took passage of the 13th and 14th amendments to the Constitution, ratified in 1865 and 1868 respectively to effectively overturn Dred Scott. The 13th Amendment abolished slavery and the 14th declared all persons born in the United States to be citizens of the United States.
While there has been a long standing precedent to adhere to precedent, it is not sacrosanct, as evidenced above. There is the issue of STARE DECISIS - the “doctrine that courts will adhere to precedent in making their decisions. …It means to stand by things decided in Latin.” (law.cornell.edu) Supreme Court nominees are regularly asked by the Senate Judiciary Committee whether or not they would abide by Stare Decisis.
Roe was poorly reasoned as it federalized what should have remained a state issue - there are no provisions in the Constitution regarding abortion, thus the Supreme Court in Dobbs could not adhere to Stare Decisis because Roe violated the Constitution.
Let’s move on, past Dobbs, and onto the several states - all 50 will have to make their own decisions - time for citizens to step up on both sides of this issue and make their voices heard. Let there be a cacophony from both sides demonstrating their involvement in the process.
Some states already provide legal protection for abortion - Alaska, Colorado, New Jersey, New Mexico, Oregon, Vermont, and Washington, DC allow late term abortion. Abortion is legal until viability in California, Colorado, Connecticut, Delaware, Hawaii, Maine, Maryland, Minnesota, Montana, Rhode Island, and Washington. (politico.com)
On the opposite end, abortion will be illegal in Mississippi, Missouri, North Dakota, Oklahoma, Tennessee, Utah, and Wyoming - period, no exceptions noted. In Arkansas, Kentucky, Louisiana, South Dakota, and Texas, abortion will be illegal with the exception of the life of the mother. In Idaho abortion will be illegal with exceptions for rape, incest, and the life of the mother. (politico.com)
For those two sides, it is reasonably clear where those states stand on abortion. From there, it gets murky with multiple shades of gray. The remaining states have various levels of legality based upon the number of weeks the woman is pregnant - yes, woman, not birthing person/parent - such an offense to women. Some states have the potentiality to declare abortion illegal. (politico.com)
With appropriate petitioning citizens in the several states could push to have the issue of abortion placed on statewide ballots.
Protecting a woman’s right to choose are myriad corporations who have been announcing their decisions to reimburse employees for travel and travel related costs should they opt to cross state lines for an abortion. A partial list of such companies includes, but is not limited to Alaska Airlines, Amazon, Amalgamated Bank, Apple, Bumble, Chobani, CitiGroup, Dick’s Sporting Goods, Disney, Door Dash, Gucci, Hims & Hers, Levi Strauss & Co., Lyft, Master Card, Microsoft, Netflix, Paramount, Power Home Remodeling, Salesforce, Starbucks, Tesla, Uber, United Talent Agency, Yelp, and Zillow. Make no mistake, consumers of the above mentioned companies’ products will undoubtedly pay the freight for these abortion related costs.
Life wins. The reversal of Roe is a victory for life; a victory for the unborn. When pro-choice/pro-abortion supporters chant “my body, my choice,” they seem to be forgetting there is a growing body inside her body. This is life - follow the science, as the pro-vaccine clamor to control everybody’s bodies demanding the vaccine be mandatory. Pro-lifers believe every life is sacred and worthy of entering the world. Perhaps instead of abortion, the mother to be considers putting the baby up for adoption. There are so many Americans wishing to adopt American babies. Perhaps the increasing restrictions on abortion will give people cause to pause before engaging in potentially risky behavior - don’t want to get pregnant, don’t be in the position to get pregnant.
And here we come to the conflict in our little drama. I must be true to myself, as I am always honest with my readers. Overturning Roe from a legal and Constitutional perspective was absolutely the correct thing for the Supreme Court to do. My wife is stridently, unapologetically pro-life - no abortions, no exceptions - period. I am also pro-life. I believe an abortion kills an innocent life. I don’t approve of abortion. However, I, me, personally, cannot look a pregnant rape victim in the eyes and tell her she must carry to term - I just can’t. I don’t want her to have an abortion. I don’t approve of her having an abortion. But she most certainly did not choose to get raped. And while opting for abortion because of rape constitutes less than one percent of the abortions performed, I can’t be Wyoming but I won’t be New Jersey. I think that’s where we are as a nation.
As a postscript, on July 8, Joe Biden spoke from the White House before signing an Executive Order designed to prevent states from prohibiting women from crossing state lines for legal medical treatments, including abortion. This so-called grand gesture is nothing more than a big façade. Not only did Dobbs not make such a prohibition, but interstate travel is protected by the Constitution.
In Justice Kavanaugh’s Concurrence to Dobbs, he wrote that “...a state cannot bar a resident of another state from traveling to another state to obtain an abortion? In my view, the answer is no based on the Constitutional right to interstate travel…”
Biden also mentioned the potential for the right to use contraception, even among married couples, to be reversed according to Dobbs. That is an outright lie from Biden as Dobbs does not jeopardize the right to use contraception. That is simply a political ploy to gin up support for his fledgling Democrat Party which is facing a Red Wave of rebuke in this November’s midterm elections. Biden spoke politically from the White House, which is not exactly kosher, calling for the election of two additional Democrat senators and keeping the House of Representatives in an effort to codify Roe - passing a national law protecting abortion, which Biden said he would sign as soon as it reaches his desk. Biden said this would “protect reproductive rights.”
Reproductive rights are not about abortion. Abortion doesn’t reproduce anything - it ends innocent life. True reproduction furthers life; creates life.
Sanford D. Horn is a writer and educator living in Westfield, IN.