Tuesday, May 3, 2022

Opinions We Never Finished Reading. I

GettyImages via The Independent.

Well, it took Politico and their sources about eight hours after I posted my prediction that the Supreme Court would not overrule Roe to publish the extremely strong indications that I was totally wrong, and you might forgive me for wondering if they did it just to humiliate me. 

Other than that, I am not at this time taking an interest in who the leaker of Alito's draft opinion, or whistleblower as the case may be. Effectively, the hullabaloo over the leaking might as well be meant to silence the discussion of the awfulness of the work, and I mean awfulness in every sense, from literary to legal, and that's what I'd rather be talking about, starting with Alito's opinion that

The right to abortion does not fall within this category [of unenumerated rights guaranteed by the Due Process Clause of the 14th Amendment]. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment's protection of “liberty.” Roe's defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”

The "law now before us" being Mississippi's "Gestational Age Act", defining abortion as

the use or prescription of an instrument, medicine, drug, or other substance or device with the intent to terminate a clinically diagnosable pregnancy for reasons other than to increase the probability of a live birth, to preserve the life or health of the unborn human being, to terminate an ectopic pregnancy, or to remove a dead unborn human being.

and prohibiting all abortions after the "unborn human being" reaches the gestational age of 15 weeks, without the usual exceptions, where Roe allowed states to prohibit them after 24 weeks, and Casey after the age of "fetal viability". Although the whole thing is looking pretty moot because within ten days after the Mississippi attorney general determines that the Roe decision has been overruled by the Supreme Court, basically all abortions regardless of "gestational age" will be prohibited in Mississippi, under one of those "trigger" laws, passed in 2019

  • (1) As used in this section, the term “abortion” means the use or prescription of any instrument, medicine, drug or any other substance or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth or to remove a dead fetus.

  • (2) No abortion shall be performed or induced in the State of Mississippi, except in the case where necessary for the preservation of the mother’s life or where the pregnancy was caused by rape... only if a formal charge of rape has been filed with an appropriate law enforcement official.

with a mandatory sentence of 1 to 10 years for the provider. I guess they promoted the termination of an ectopic pregnancy from "not an abortion" to "preservation oof the mother's life" but for some reason they dumped the "unborn human being" category, perhaps because ALEC has stopped using the phrase? (Earliest cite I find in a quick search is from 1994, by Robert P. George of the American Enterprise Institute.)

But the Supreme Court, tasked with deciding on the constitutionality of the 15-week ban in the Gestational Age Act, has in fact stuck Mississippians with this one, like a cuckoo's egg, without arguing it at all.

And meanwhile, Alito has skipped over the contrast between "fetal life" and "unborn human being" and decreed without any argument at all that the latter is all you need to know, meaning he's decided in advance that abortion rights are fundamentally different because they are a right to murder (except in the case of an ectopic pregnancy, in which I suppose the reason the abortion isn't abortion is that it's in self-defense—that fetus is trying to kill her!), and there's no real reason to discuss it any further. But he does, all the same. for 90-odd pages. 

In the next installment, we'll be looking at "entirely unknown in American law" from a historical point of view.

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