We'll start up, of course, with Dobbs; I've published earlier posts on the Dobbs (Roe/Casey overturn) here and here. Let me point out, as a lifelong pro-lifer, I see the overturn of largely unrestricted abortion on demand to more nuanced and restricted abortion as a good thing, because I see the preborn child as having the right to life. But here I want to discuss the broader context.
While the Clintons often operated on the soundbite of abortion being legal and "rare", roughly 1 in 5 pregnancies in America are aborted, over 80% involving unmarried women. This translates to over 800K a year. About two-thirds occur within 8 weeks of pregnancy and an additional 20% within 12 weeks. "Just 12 weeks after
your last period, the fetus is fully formed. All the organs, muscles,
limbs and bones are in place, and the sex organs are well developed." . If you look at Europe, the median limit for abortion is 12 weeks, with Great Britain and Netherlands being the outliers at 20-24 weeks. Note there may be nuances for health reasons
Now as I have previously mentioned, the quickening (typically when the mother first feels the preborn baby moving inside her) has particular significance in English and early American law as being indicative of the Aristotelian concept of ensoulment and deserving of legal protection. Generally speaking, the quickening for most women occurs around 16 to 20 weeks of pregnancy. (Aristotle had lower numbers, earlier for boy babies.) Note that the mother probably doesn't feel movements of the baby, probably weeks earlier.
Of particular note to the tragic Roe and Casey decisions was a different milestone fetal viability (i.e., when the baby can survive outside her mother's womb). At the time of Roe, this was roughly around the end of the second trimester. Today it's more like 21-22 weeks.
An undue emphasis in discussing more restrictive red state abortion laws past Roe is the focus on pregnancies due to rape (about 1%) and incest (0.5%), in addition to the life/health of the mother. Most of us pro-lifers, although troubled about equal protection aspects and the risk of loss of life, are pragmatic enough to rely on persuasion in these circumstances. The pro-aborts, of course, don't really care about the women; they're making an emotional appeal at the expense of pro-lifers as if we are punishing victims or insensitive to the gravity of the underlying crime. No, we just don't agree that an innocent life should pay with her life for the crimes of her father.
But the big picture is that Roe had gone past a traditional criterion of the quickening and the state's interest to viability and imposed it across states in violation of the tenth amendment, state vested authority in the police power and public health. In fact, whereas babies continue to rapidly develop through the remainder of pregnancy, by 12 weeks, as noted above, the fetus looks very much like a baby; she has enough nervous system development to open and close fingers, move her toes, etc. We have already noted that nearly 90% of abortions occur during the first trimester.
So it would seem that even a purple state limit of a European-median 12 week limit (I think FL and MS law extends beyond that) is unacceptable to pro-aborts; for example, they are claiming the new law would violate a Florida constitutional amendment on privacy
Right now the Dems are frantically fixated on trying to codify Roe.I've discussed this topic in various tweets. The idea, for instance, is when the 14rh Amendment was passed, guaranteeing equal protection under the law, Congress had the right/responsibility to enforce that right. The point ix, there is no constitutional right to an abortion; that was just decided in Dobbs. If pro-aborts wanted to do that, they would have to first pass an amendment. There are 2 ways to do that: by convention or by a Congressionally initiated amendment, which we've always done to date. This is basically impossible, because it would require a super-majority in both chambers and then a super-majority of states to ratify it. None of these 3 steps is remotely feasible.
If arbitrary codifications of an unlimited number of fake constitutional rights were possible under razor-thin Congressional majorities and a POTUS from the same party, states could find their balance of power in our federal system under constant assault
Now technically pro-abort GOP senators Collins and Murkowski might have agreed to a codification. I haven't seen the specifics of the Dems' proposal, but apparently Collins failed to get a freedom of conscience exception for Catholic hospitals. Biden wants a filibuster-bypass just like under recent gun control legislation. That's not probable. There was a lot of public pressure on the GOP to respond in the wake of the Uvalde tragedy. I'm not saying there wasn't blowback on the Dobbs decision, but in effect it had started back in May. The Dobbs' decision did not ban abortion in blue states (at least 16 states and DC have permissive abortion laws); most trigger law states (i.e., restrictive upon Roe reversal) are red states (I think Michigan is one of the exceptions). As for the filibuster itself, Manchin and Sinema are holdouts, knowing its loss is a double-edged sword if the GOP regains Senate control this fall.
There are reports that Trump, who takes pride in his 3 SCOTUS picks, is nevertheless worried about the effect on GOP hopes in the fall. It's difficult to tell, but I would think if the issue comes into play, ir will be down ballot in state races. I know Biden wants Roe codification as described above, but I don't think if successful, it'll survive a court challenge.
The Left has desperately floated other ideas, like creating abortoriums in national parks. Taxpayer money for abortions has always been controversial (re: the Hyde Amendment), so this is a non-starter.
Moving on, let me briefly discuss 4 other decisions (I've separately discussed Carson v Makin on Maine funding for religious-affiliated schools) :
- Kennedy v Bremerton School District. A Washington state high school football coach started a brief prayer on the field post-game, eventually voluntarily joined by players, opponents and/or others. (He had earlier had locker room sessions but stopped under school opposition.) He was eventually fired on the grounds of separation of church and state. Some agnostic player worried about alleged reprisal benching for not joining in. SCOTUS rightly ruled the government was discriminating against the free exercise clause.
- NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ET AL. v. BRUEN, SUPERINTENDENT OF NEW YORK STATE POLICE, The basic issue here was that NY state required an open-ended justification for concealed carry. The subjective nature of the process effectively infringed on a person's right of self-defense. I do have some reservations about this decision, not based on the reasoning but on the use of the incorporation doctrine (the dubious application of the 14th Amendment to impose the federal Bill of Rights to the states--which, of course, was used in Roe). I feel this issue should have been decided by the NY Supreme Court.
- BIDEN ET AL. v. TEXAS ET AL. Basically Biden had found resistance to disengaging from Trump's "stay in Mexico" policy for southern border asylum seekers. (Note: I'm pro-immigration.) Chief Justice Roberts in a close vote held that the lower court incorrectly infringed on Biden's foreign relations and immigration authority.
- WEST VIRGINIA ET AL. v. ENVIRONMENTAL PROTECTION AGENCY ET AL. The basic question is whether the EPA had exceeded its authority through imposing certain carbon-reduction policies with massive resource implications without political accountability. For a long time, we conservatives have argued against the Congress punting tough issues to unaccountable agencies, in what's sometimes referred to as the delegation doctrine. As George Will points out, SCOTUS has been pushing back against overreaches like the FDA's ban on pandemic-era evictions. Although Dem environmentalists have reacted furiously to the court's 6-3 ruling against the EPA's authority, it should be noted that Dems have the alternative of trying to pass the EPA policies into law.
