Don't blame Alito

If you read my last two posts, you won't be blamed for having whiplash, but hear me out.

Glenn Kirchner has hinted that Kavanaugh, Gorsuch and the rest for lying to Congress. They did not. They always said that they would consider the case before them. They did that.

Was the Dobbs incorrectly decided? Technically no. Alito was wrong on state power, but the argument did not say why. 

The answer is history, specifically because the state power approach did not go so well when the issues were slavery and civil rights. The slavery part should be obvious. The civil rights part has to do with Plessy. 

The theory of the case in Plessy was that the states are the best venue for determining whether they were adhering to the 14th Amendment. This is wrong on its face, but it was clearly stated in the opinion of the Court in Plessy. I said as much a year ago.

The sad irony is that Alito used the repeal of Plessy to, in effect, restore Plessy. No one argued that point.

The second error was not admitting that Congress had the power to enforce the 14th Amendment, which must include changing the viability standard (recognizing personhood earlier). 

This should have been the argument in Gonzalez v. Carhart, which would have led to seating the right to ban partial birth abortion in a better place than the Commerce clause. This approach forecloses state action as well.

Congress can also, as an inherent power, change the terms of citizenship. States cannot.

The third error was arguing the case on the basis of women's rights. While that is affirming, it was never a good idea. The better approaches would have been to concede that viability is the correct legal standard because it is the ability to be born - making the unborn a seat of rights as if they were already born. This concedes assisted viability as well (although there is never a requirement that the assist be provided).

This approach pretty much gives up the right to late term abortion by any other method save induction. Induction has to be allowed because no one has a right not be born.  This also allows for fetal hospice (and the baptism of the child).

The last error by counsel was to not concede that the unborn may have rights, but having Congress recognize them is problematic. This dilutes the women's rights message, which needed to be diluted.

Instead, make arguments as to why legal admission of personhood is problematic. States would like to simply regulate doctors and not bother mothers. They want to shut down clinics, especially Planned Parenthood. Actually recognizing the fetus as a person (which they say they believe in, but won't do) has consequences for all pregnancies. It should.

If abortion is between a woman and her doctor, with no child as a seat of rights, abortion must be treated as a medical procedure and not a homicide. Recognizing, as Alito does, the potential right to life while not enforcing abortion as homicide is an attempt by the right to life movement to have their  cake and eat it too. 

A federal abortion ban will not happen if it means actually recognizing pregnancies as people. Pregnancies, like births, would have to be registered. All of them. Pregnancy losses would have to be investigated, all of them. Voluntary termination would have to be treated as homicide, so women would have to be prosecuted. 

All of these things impact all women of childbearing age. The key to stopping authoritarianism is making sure everyone feels the pain. If it is only the "other," the government can get away with all kinds of abuses. 

Pointing out why letting them call the unborn a human being but not treating it like one removed the argument against government overreach. It should have been made. It can still be made state by state. Forcing all women to face the abortion police makes having abortion police untenable and shows why regulating it fails on due process grounds. That would have gotten Roberts, and possibly Gorsuch and/or Barrett. Do the math.

Arguments that should have been made were not. Had they been made, they would have shown up in the dissent. This might be enough to get rehearing when Thomas leaves the Court due to death or his wife using their money for Insurrection. Scalito is also getting old. As the dissent said, the reason for the decision was changes to the majority. Some things change back, sometimes sooner than we think.

Getting a rehearing is easy. Perform an illegal abortion and use the above reasons to get an appeal. Instant standing.

This kind of standing could have been used in the case of the Texas heartbeat law. Good thing it was not. The 3rd party enforcement tool with bounties for reporting is not novel. It is used to catch tax cheats and polluters all of the time. Repealing this approach in these areas is on the libertarian bucket list. Let us not win the battle and lose the war.