The Leaked supreme court decision, and the Legal future of abortion

 Someone has leaked a draft of the upcoming Supreme Court decision, Dobbs v. Jackson Women's Health Organization, apparently written in February, that had to do with state restrictions of abortion. If the final decision is not significantly revised, the Supreme Court will finally have overturned Roe v. Wade.

Pro-life people are ecstatic, and with good reason. The Court, we hear, will return the matter to the states' legislatures. The decision, then, may not change abortion practice that much: red states will tend to have few or no legal abortions, and blue states will likely have slightly more. It will lead to a significant, though not likely massive, reduction in abortion numbers, however, as many people will not cross state lines to get the abortions that were available at home. (The Texas "heartbeat law," which prevents abortions after a heartbeat can be detected, has reduced abortion numbers 50 - 60%, though some women have gone to neighboring states for abortions. While abortion drugs are readily available online, many women will not break the law. The President of Heartbeat International, an association of pregnancy help centers, has observed that some women in Texas have expressed gratitude that they didn't have the choice to abort -- which points to the pressures on women to do what they really don't want.)

Let's look further down the road: the Supreme Court is just putting off a decision that should apply to all the states, and not be left to them individually. (I think we can assume that Congress will not have the courage and fortitude to deal with the issue head on, though it should.)

While the Court may be politically attuned (or cautious), the inner logic of any moral prohibition of abortion demands a Court ruling, if you have any law, anywhere, protecting the child from the abortionist. If what is in the womb has the moral status of an appendix, then the law should back off and let medical professionals decide about abortion. If the moral status of that which is in the womb is unknown, but possibly that of a human being, the courts have an obligation to defend what may be a person, another one of us. (In short, those for permitting abortion have to show that that a pregnancy does not involve an individual human being. The hunter can't just shoot at anything that moves in the forest. He has to know that it's not another hunter.) Attempts to say when in pregnancy the state has "a compelling interest" to forbid abortion, on the grounds that the child should be protected at that stage, are in reality arbitrary: e.g., why 6 months (Roe), and not 5 months, or 4 months, when a life is on the line?

A legal person inside another legal person is a challenge to the imagination, especially early in pregnancy. It is also a challenge, admittedly, to the legal tradition, but it is perhaps an inevitable development, and the Equal Protection clause of the 14th Amendment will eventually apply, at least to the question of taking the child's life.

Compare our fight to the history of other issues before the Court, like race. From Wikipedia on the "equal protection clause": "The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides 'nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws.' . . . 

"A primary motivation for this clause was to validate the equality provisions contained in the Civil Rights Act of 1866, which guaranteed that all citizens would have the guaranteed right to equal protection by law. As a whole, the Fourteenth Amendment marked a large shift in American constitutionalism, by applying substantially more constitutional restrictions against the states than had applied before the Civil War."

States surrendered their decision-making power as the Court saw the 14th Amendment entailing more uniform treatment of white and black peoples in more and more areas of life (accommodation, housing, education, etc. (https://historycollection.com/5-us-supreme-court-cases-defined-race/4/).

The Court, I submit, will eventually have to deal with the issue at the federal level; it can only be politics that holds it back at this point.

A good day. Let's hope and pray that the Court will stand firm.

Chris Humphrey, Ph.D.
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