Dobbs v Jackson

Justice Alito claims that states should have the power to make moral choices for its citizens. He has missed the point of privacy. Abortion is one of those issues where the question is how invested one is in bacon and eggs for breakfast. Those who have a moral view on abortion are the chicken. Those whose morals are being challenged by the state are more invested, like the pig.

Alito argues that the states must be given the power to decide this issue. The States have historically done a bad job of this, which is why we have the 14th Amendment. The argument for letting states decide on abortion rights is akin to letting the states decide about slavery or the question of who is and who is not a citizen under the law after slavery was defeated, with that defeat settled on Juneteenth by the Union Army. Alito makes the mistake of the Confederacy. He also cites the rejection of Plessy while adopting the state power logic which is the theory of the case. The irony is thick.

Time and again, states acting as moral centers have made the wrong choice. Indeed, surveys on American attitudes about the rights of their neighbors consistently show that no one would have rights if they were voted on. This is the whole point of having rights that legislation cannot challenge, as legislators are usually the well of the combined moral biases of the voters. As such, Justice Alito's moral argument is entirely unconvincing and off base.

Justice Alito would include in his analysis the interests of the child. It is a legitimate question, but it is the province of Congress, not the states, to make this determination. They are now likely to do so, although this will be next year, as between this decision and the Insurrection, the Republicans have less of a chance of recapturing the majority, or even existing, than they did one week ago today.

The Justice does not understand viability as a standard, although Justice Brennan hints at it in Chapter IX of Roe. The 14th Amendment is explicit, that rights of the unborn start at birth, or with viability, the ability to be born.

Justice Alito ignores the central question of rights, which is the power of the States. Calling pre-viability children a seat of rights has implications on how abortion must be regulated. As his examples indicate, if the fetus (or little person) is recognized as the seat of rights then abortion cannot be regulated as a right or a medical procedure. 

The role of government in enforcing these rights must be implicated. Can the mother be held harmless in arranging for an abortion. The pro-life authorities who have written since the passage of Roe indicate she need not be. That is not how rights work. Unless all contract killings hold the contract issuer harmless, the government may not do so with women. 

If the child is a person, then the loss of life must trigger medical and criminal review. This implies that pregnancies must be registered, as births are now and that women who have lost a pregnancy are subject to questioning, less the claim of a natural miscarriage is hiding an illegal abortion. That such questioning can occur shocks the conscience to the same extent that abortion does. 

While the anti-abortion side insists that prosecutorial discretion will keep this from happening, the American experience show that time and time again, politically ambitious prosecutors cannot be trusted in these matters. It is not hard to imagine a prosecutor seeking conservative votes getting tough on women who have had abortions. The reason that abortion must be seen as a right is to remove the possibility of such misused discretion.

The 20 week milestone is more appropriate than reversal of Roe, because the risk of miscarriage is virtually zero after that point. After this point, should termination of pregnancy be necessary, that termination can only be by induction rather than one of the more gruesome methods. The exceptions to the 20 week milestone would be the province of Congress, not the states.

In a way, the unborn already have certain rights. The right to life is not the right to not be murdered. It is the right to not be executed without due process of law. The government protects this right of the unborn by not executing women who may be or are found to be pregnant. The Federal Unborn Victims of Violence Act concedes an exception for abortion while recognizing the rights of the child against those who would harm its mother. 

The question to be considered, then, is whether the child has a claim on rights against the rights of it mother. The opinion does not address this question, although it is essential. Likewise this question was not argued in this case. It will be argued when the case is reheard once Justice Thomas is no longer on the Court. This may occur sooner than later, as the author of the concurring opinion (Chief Roberts)  is more likely than not to accept the logic presented here. The whole point of stare decisis is so such things to not happen. Justice Alito has lit the fuse for the reconsideration of his own ruling.