"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 acknowledge."
--U.S. Supreme Court, last week
A friend reminds us of one of Paul Greenberg's rules for editorial writing: Don't settle by taking on an opponent's weakest argument. Better to go at the strongest. It makes for better and stronger opinion. So after having a week to digest the United States Supreme Court ruling overturning Roe v. Wade, we will make the attempt.
The strongest argument coming from those who'd keep Roe on the books might be:
Clarence Thomas and his opinion(s).
The senior member of the conservative majority of the court didn't let the opportunity pass by this year without adding his two cents and seven pages to Dobbs. Clarence Thomas voted with the majority to overturn Roe v. Wade. But added his own section to the opinion, for the record.
He seemed to be thinking theoretically rather than practically, but then, that's what justices do. And in an opinion that is 213 pages long, including concurrence and dissent, there is a lot going on theoretically.
Mr. Justice Thomas mentions the Fourteenth Amendment, and the Due Process Clause, and advises his colleagues that if abortion can't be found in the Constitution, then other cases could be reviewed as well. He writes:
"The Court today declines to disturb substantive due process jurisprudence generally or the doctrine's application in other specific contexts. Cases like Griswold v. Connecticut (right of married persons to obtain contraceptives); Lawrence v. Texas (right to engage in private, consensual sexual acts); and Obergefell v. Hodges (right to same-sex marriage) are not at issue. The Court's abortion cases are unique, and no party has asked us to decide 'whether our entire Fourteenth Amendment jurisprudence must be preserved or revised,' Thus, I agree that '[n]othing in [the Court's] opinion should be understood to cast doubt on precedents that do not concern abortion.'
"For that reason, in future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell."
Well.
In his theoretical exercise, Mr. Justice Thomas gave his critics, and critics of the court, a lot of ammo. He implies (or we infer) that those issues might not be on the table today, but could be tomorrow. After all, if the "right" to an abortion isn't a right after all, because the words can't be specifically found in the United States Constitution, can't other rights be at risk?
We would remind Gentle Reader that the majority opinion says no less than three times in the body of the text that abortion was all that was on the plate and that the majority's reasoning should not be applied to other rulings/cases/law. Even Justice Thomas admits this. Probably because Roe is different; abortion can't be undone.
As none other than The Atlantic points out this past week, Obergefell and Roe are fundamentally different. Abortion involves harm to a non-consenting party: "Interracial marriage involves consenting adults. So does gay marriage. A person consents to using contraception. Prior cases protect consensual adult sexual activity."
And, as the majority opinion put it, the courts always should factor in "very concrete reliance interests" in the law. Marriage is a double-contract between two people ordering their lives. This is different from abortion. Unlike abortion law, unraveling current marriage laws would produce legal chaos. And the court doesn't do that.
There's even a more telling argument against Mr. Justice Thomas' concurring opinion:
No other justice would sign off on it.
Here's another strong argument for the pro-choice side of things and against the court's ruling in Dobbs:
Abortion has been a constitutional right for 50 years.
It sure has. And, from another point of view, unwisely so. As the majority opinion in Dobbs put it: "Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware ... . Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State."
Strong Argument No. 3 could be that the 2022 court unwisely tossed aside "stare decisis"--keeping with previous rulings--by overturning precedent. Yes, but the 1973 court did the exact thing in its ruling. And, as Justice Alito put it, stare decisis does not compel unending adherence to abuse of judicial authority. (We don't think pro-choice folks made such noise about stare decisis in 1973.)
Many legal scholars would tell you that in 1973 the U.S. Supreme Court simply amended the Constitution to its will. (A right to abortion could be found in the First Amendment, or Fourth or Fifth or Fourteenth--or maybe a combination thereof.) But the courts, even the nation's highest court, can't amend the Constitution. And the current court reversed a flawed decision. And sent the matter of abortion back to the political branches.
And because of that, we are told the current court is being unfair.
What it's being is a court. Not a legislature.
We note that the vice president of the United States told the press this week that the court, in its latest ruling, was being driven by politics.
We'd say the court seems to be driven mostly by legal reasoning. As anybody who'd actually read the 213-page ruling would understand.