Cowboy Law

Since January 11, 1973, when the Supreme Court issued its ruling in Roe v. Wade, America has been embroiled in a bitter and divisive controversy over abortion on two fronts: the first grounded on moral and religious grounds; the second based on the Constitution of the United States—what it says and (more importantly) doesn’t say.

It is unlikely that the moral and religious aspects of the abortion debate will be settled any time soon. After all, in America, the people are entitled to voice their own opinion and ideology on such issues. And, public opinion on about abortion from moral and religious perspectives runs the gamut and has been, and likely always will be, sharply divided.

On the second front, however, what the Constitution, the “Supreme Law” of our land, says or doesn’t say about abortion is NOT a matter of opinion or ideology but, instead, is based on the text . . . the words . . . of the Constitution, mindful of the Nation’s history and traditions at the time its text was written. Those rights specifically enumerated in the written text of the Constitution—speech, exercise of religion, assembly, keep and bear arms, etc.—are protected. However, Supreme Court has made clear that, as a matter of constitutional law, rights that are not specifically enumerated in the Constitution are protected only if they are “fundamental” rights that are “deeply rooted in the Nation’s history and traditions” and that are “implicit in the concept of ordered liberty.”

The text of the Constitution says NOTHING about any right to an abortion. And, it is foolish to even argue that a right to abortion “deeply rooted” in American history and tradition or was ever considered to be “implicit in the concept of ordered liberty.” In fact, the issue of abortion was historically and traditionally decided by the people in their individual states. Nothing in the Constitution, when it was ratified by the people, changed that decision-making process. Until 1973. Until Roe v. Wade.    

Roe v. Wade involved a Texas statute that prohibited any abortion except to save the mother’s life. Norma McCorvey, a pregnant single mother, sued the State of Texas under the alias “Jane Doe”, alleging that the Texas law was unconstitutional and violated her “to choose to terminate her pregnancy” pursuant to the First, Fourth, Fifth, Ninth, and Fourteenth (Due Process Clause) Amendments.^[1] The lower courts ruled that the Texas law violated a woman’s right to an abortion under the Ninth Amendment,^[2] and included in the “liberty” protected by the Fourteenth Amendment. 

Justice Blackmun wrote the majority opinion for the Court in Roe v. Wade. He conceded there was no right to an abortion in the text of the Constitution.  However, he agreed with the lower courts that a woman’s right to an abortion was protected by either the Ninth Amendment or . . . maybe . . . more likely . . . by some contrived “concept of liberty” guaranteed by the Due Process Clause of the Fourteenth Amendment.

The Court, in Roe v. Wade, created a rigid “trimester” framework to define the scope of the abortion right during pregnancy. In the first trimester a woman’s right to an abortion was virtually absolute because, after all, unborn child is merely “potential human life.” However, states could regulate and even ban abortions in the third trimester because, according to Justice Blackmun, a fetus graduates from mere “potential human life” to having the “capability of meaningful life.” Essentially, in Roe v. Wade, the Supreme Court decided for all pregnant women and all unborn babies the point at which a fetus has the “capability of meaningful life.” The Constitution does NOT, expressly or implicitly, vest the Supreme Court with the power to play God.^[3]

In his dissenting opinions, Justices Byron (“Whizzer”) White characterized the decision in Roe v. Wade as an “exercise of raw judicial power” unsupported by the text of the Constitution or the history and traditions of the Nation. He further criticized the Court for improperly removing the issue of abortion from the individual states. Justice Rehnquist also dissented noting that the Court’s creation of a right to abortion had no basis in the Constitution: it was neither found in the text nor was it “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

Fast-forward 20 years. Roe’s rigid trimester framework had proven to be virtually unworkable in the lower courts. And, in 1992 the Supreme Court was once again confronted with the constitutional validity of Roe’s creation of the right to abortionin Planned Parenthood of Southeastern Pa. v. Cosey.^[4] The Court’s decision in Casey was sharply divided. A  plurality opinion written by Justices O’Connor, Souter, and Kennedy[5] and joined by Justices Blackmun and Stevens (5-justice majority) upheld the “essential holding” in Roe v. Wade that a woman’s right to an abortion was protected by the Due Process Clause of the Fourteenth Amendment. The four remaining justices, Chief Justice Rehnquist and Justices Scalia, Thomas, and White, wanted to overrule Roe because it was not supported by either the text of the Constitution or the Nation’s history and traditions.

Another part of the plurality opinionreplaced Roe’s rigid trimester framework with a new “undue burden” standard^[6] upholding Pennsylvania’s abortion restrictions, except for the spousal-notice requirement. Essentially, Justices Scalia, Rehnquist, White, and Thomas joined in the portion of the plurality opinion upholding most of the Pennsylvania law. Of course, both Justice Blackmun (author of Roe v. Wade) and Justice Stevens would have upheld Roe v. Wade, as written, and would have struck down all the abortion restrictions in the Pennsylvania law. As judicial precedent, Casey was a constitutional morass.  

Notably, the portion of the plurality opinion upholding Roe’s creation of a women’s right to abortion was primarily focused on a Supreme Court doctrine called stare decisis.^[7]In other words, for Justices O’Connor, Souter, and Kennedy, it was more important to protect the reputation and integrity of the Court than it was to correct the Court’s prior mistakes resulting in bad constitutional law. Justice Thomas has gone on the record criticizing the use of stare decisis as an “end-around” making a hard decision: “[w]e use stare decisis as a mantra when we don’t want to think.”

Fifty years later, Roe v. Wade still flaunts the truth. Until now.

Once again, the Supreme Court and the American people are embroiled in the moral-turned-constitutional issue of abortion. In 2018, Mississippi passed a law prohibiting abortions after 15 weeks’ except in cases of medical emergency or severe fetal abnormality. In Dobbs v. Jackson (“Dobbs”) various abortion providers challenged the Mississippi law on the grounds that it violated the constitutional right to an abortion created in Roe v. Wade. The State of Mississippi argued, in part, that that Roe v. Wade was not constitutionally valid and should be overturned.

The district court ruled that, under Roe v. Wade and Casey, the Mississippi law was unconstitutional.The Fifth Circuit Court of Appeals affirmed.^[8] On May 17, 2021, the Supreme Court granted review. The case was argued before the Supreme Court on December 1, 2022. The justices then began their traditional process of private and confidential deliberation on the legal arguments presented with the expectation that the Court would render its formal decision, along with concurring and dissenting opinions by individual judges, by the end of the current term in late June.

In Dobbs, however, there was an unprecedented “twist” that turned the Court’s traditional process on its head. On May 2, 2022, a“DRAFT” majority opinion in Dobbs, making the case for overruling Roe v. Wade, was leaked to the media (Politico) The leaked “draft” was written and submitted for circulation among the justices by Justice Alito on or about February 10, 2022.    

Reaction to the “leak” by pro-abortion advocates was immediate. In an obvious attempt by pro-abortionists to influence the Court’s decision in Dobbs through fear and intimidation, numerous organized protests and threats against the Supreme Court and individual justices were rampant. Protests were conducted at the private residence of Justice Barrett and her family and other conservative Justices.  Justice Kavanaugh was the target of a murder threat.    

The Court’s reaction to the “leak” and blatant attempt to intimidate the justices also was immediate. On May 3^rd, the Court issued a press release, confirming that the leaked “draft” opinion was authentic. In a statement, Chief Justice Roberts referred to the “leak” as a “betrayal of the confidences of the Court, . . . a singular and egregious breach of . . . trust [and] . . .  “an affront to the Court.” He assured that neither the “leak” nor the protests would affect the Court’s decision-making process and ultimate ruling in Dobbs. Justice Thomas also reiterated that the Supreme Court could not be “bullied.” 

Why would a “draft” Supreme Court opinion questioning whether Roe v. Wade is constitutionally valid inspire threats of violence and even murder? The Court’s only role in Dobbs is to determine whether the Mississippi law violates the Constitution and, in doing so, whether the right to an abortion found in Roe and Casey is supported by the Constitution, expressly in its text or implicitly based on the history and traditions of America—nothing more, nothing less. After all, if Roe v. Wade is based on sound constitutional analysis, there is nothing to worry about, CORRECT?

The problem for the pro-abortion crowd is that Justice Alito’s “draft” opinion clearly and unequivocally unravels the constitutional fallacy that is Roe v. Wade . . . and they know it. Justice Alito’s “draft” systematically exposes the blatant flaws in Justice Blackmun’s analysis of the constitutional text and the history and tradition of abortion in America.

Stripped of the truth, pro-abortion advocates are left with no alternative except intimidation and violence. Moreover, the ”leak” and its aftermath exposes the depths to which abortion proponents will sink to force their own version of morality and ideology on other Americans—the willingness to tear down the institutions that underpin the very foundation of America to achieve their ideological goals. To tear down the Constitution. To tear down the rule of law. To tear down the Supreme Court.

Will their tactics work? Will some of the conservative justices cave to the threats of the pro-abortion contingent . . .  or . . .  will they hold fast and true to their oath to uphold the Constitution, as written?

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[1] This scattergun approach of “throwing it all up on the wall” in hopes that some of it would stick is an oft-used tact of left-wing ideologues. In Roe v. Wade, it worked.

[2] “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const, Amend. IX.

[3] The Constitution expressly protects “life” in the Fifth and Fourteenth Amendments. In our society a heartbeat signifies “life.” Today, a heartbeat can be detected in a fetus at 5-6 weeks.

[4] 505 U. S. 833 (1992). Casey involved a challenge to abortion restrictions in Pennsylvania law, including statutory requirements for (1) informed consent; (2) 24 hour waiting period prior to the procedure, (3) consent of one parent before a minor can have an abortion, and (4) spousal notification by a married woman seeking an abortion.

[5] A plurality opinion does not have enough judges’ votes to constitute a majority of the Court. However, in Casey, there was a (5-4) majority on the portion of the plurality opinion that upheld Roe’s creation of a right to abortion. .  

[6] Rather than relying solely on the trimester of the pregnancy to determine the validity of abortion restrictions, Casey’s “undue burden” standard allowed states to regulate abortion so long as the regulation did not impose a “substantial obstacle in the path of a woman seeking an abortion [undue burden] before the fetus attains viability.”

[7] “Stare decisis” is a Latin phrase meaning “to adhere to precedents” or prior decisions so as not to upset matters that have been settled by previous decisions. In Casey, the plurality opinion focused on the need to stand by prior decisions of the Court, such as Roe v. Wade, to protect the legitimacy of the Court and to preserve the predictability and consistency of its decisions.

[8] In a concurring opinion, Judge James C. Ho of the Fifth Circuit recognized that the district court and the Fifth Circuit were legally bound to follow the Supreme Court’s precedent, from Roe and Casey to the present day, prohibiting the states from banning pre-viability abortions.  However, he also reiterated that the right to an abortion is NOT found in the text of the Constitution but, instead, was fabricated by the Supreme Court under a judicially-created doctrine of unenumerated rights.