Arizona has returned to their 1864 law banning all abortions except to save the life of the mother. Rape? Incest? No abortions permitted.
Should Trump return to the White house, it will become even more chaotic. Anti-abortion advocates are pressing for a nationwide ban, and they question the FDA’s ability to approve contraceptive medicines. They want their version of enforcement of the 1872 Comstock act, which makes it illegal to disseminate birth control by mail, and they advocate making birth control illegal.
This chaos was foreseeable and should have been avoided. And as much as Alito has criticized Roe v. Wade, it is his logic in Dobbs that is fundamentally flawed.
This is judicial activism gone terribly wrong. Donald Trump, along with a conservative Republican Senate stacked the Roberts court with conservative Catholics who had been selected by the right-leaning Federalist Society. Catholics are indoctrinated from childhood with the belief that abortion violates god’s law.
The existence of the soul, when a soul enters a body, when human life begins or when personhood is conferred; these are philosophical and religious questions that are the specialty of philosophers and theologians. Our free society, grounded in reason and fact, should not be adjudicating or legislating these questions.
The positions that anyone takes are deeply personal and must be subjective. In America we are free to believe as we choose. The Roe v. Wade and Casey decisions understood and confirmed this fundamental right of the people. In Casey, Justice Sandra Day O’Conner explained the court’s mindset with, "Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code."
By moving abortion decisions from the judiciary to the states, Alito sidestepped this crucial rights issue, and his strategy was flawed. The majority of voters in pre-Emancipation southern states favored slavery, often claiming it was a part of god’s plan. But slavery could not be left to a popularity contest. Nor can abortion.
Why Roe Was Correct
Roe v. Wade and Casey were rational decisions; women have a fundamental right to choose.
Those courts also recognized rights of the unborn. They ruled that a woman’s right to choose ended with viability, that is, when a fetus is able to survive outside the womb, without extraordinary medical intervention. Viability is a specific time that objectively marks the beginning of an independent life.
Under Dobbs, abortion limits in states vary from never to 16 weeks. All are arbitrary opinions, and they cannot all be right. Viability is the only limit that is based in fact, that makes sense.
By taking this constitutional right to choose from women, the Roberts court opened Pandora’s box. Matters that Roe had settled logically have been thrown into confusion. It happened because the Dobbs decision allowed personal belief to trump reason. The conservative Christian jurists on the Roberts court were well aware that in Christian-dominated states electorates would restrict abortion access, which of course had been the court’s objective all along.
The First Amendment
Another egregious error in Alito’s decision is that abortion legislation enacted in Christian states after Dobbs violates the First Amendment. In Dobbs Alito wrote:
"Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an unborn human being."
The belief of voters in the Christian states is clearly their religious belief. Votes do not turn belief into fact. So, the laws enacted to enforce their majority vote require all citizens in those states to comply with Christian belief, which violates the First Amendment. Citizens must comply even when their personal religious beliefs are infringed. Alabama law says that personhood begins at conception. Members of the Jewish faith believe it begins at first breath. Prior to birth, a mother’s health is the overriding consideration. But not in Alabama where Jewish women's rights are infringed.
The overwhelming majority of Americans want a return to the sanity of Roe v. Wade. Since Dobbs, six states have amended their constitutions to protect abortion rights, even red states. Florida and Arizona will likely join them in November.
People see through the Roberts Court rhetoric and corruption. Opinion polls show approval ratings for the Court are at a record low. People remember that during their confirmation hearings, sitting justices misrepresented their views when saying Roe was settled law. And people know that an unpopular president together with a rule-bending Senate stacked the court. How could the people not have lost faith.
Biden promises to make Roe v. Wade the law of the land in his next term. But electing Biden will not be enough. Democrats must hold the Senate and regain control of the House. The House is critical for it is the far-right evangelical MAGA House members who want to pass a nationwide abortion ban and will block any effort to expand access.
The chaos generated by Dobbs, best shown by the preposterous actions of the Alabama supreme court and Arizona's 160-year devolution, show the abdication of the best thinking of the Founders.
It is why they separated church and state.
