Tag Archives: Medical Care

Remember the 9th Amendment: The Legal Basis for Roe v. Wade

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The first ten amendments to the US Constitution are known as the Bill of Rights. We’ve all heard of the 1st amendment (free speech, separation of church and state, etc.), the 2nd amendment (we can own muskets in case the British come back) and the 5th (what you can “take” when they ask you an embarrassing question). But hardly anyone knows about the 9th amendment. We should though, because this is what it says:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This amendment made obvious sense, since it would have been impossible for the authors of the Constitution to list every right people have (e.g. the right to brush your teeth, the right to hold stupid opinions, the right not to watch college basketball in March). And some obvious rights are hardly worth mentioning, like the right to make important decisions for yourself or the right to privacy in the conduct of your daily affairs.

Yet certain members of the Supreme Court, all of whom went to law school, are forgetting about this particular amendment (even though it’s been around since 1789).

I have no legal training. I haven’t read the 1973 opinion in Roe v. Wade or the 1992 opinion in Planned Parenthood v. Casey, the two principal cases in which the Supreme Court decided that women should usually be able to end their pregnancies. I haven’t read this week’s draft opinion in Dobbs v. Jackson Women’s Health either. That’s the opinion that will overturn Roe and Casey if it becomes official. It’s also the opinion that would theoretically allow a future Congress to make abortion illegal in the whole country.

Yet most people would agree that if a woman can find a doctor who’s willing and able to perform a recognized medical procedure and the woman has the necessary health insurance or can afford to get it done, whether or not she has the procedure is nobody else’s business. Whether that’s because all of us have a right to privacy, a right to make important decisions for ourselves or a right to control our own bodies doesn’t make any difference. None of this should be controversial.

The five most reactionary Catholics on the Supreme Court apparently think it is. They don’t see any mention of abortion in the Constitution. They don’t see any specific reference to personal privacy. On that basis, they think it’s fine for the government to interfere with a woman’s decision to end her pregnancy.

But I’m wondering why the hell a woman shouldn’t be allowed to end a pregnancy if she wants to.

The only reasonable basis for controversy is that fertilized eggs often turn into fetuses and fetuses often turn into babies. It’s “often”, because maybe two-thirds of fertilized eggs don’t result in a birth (one study says it’s more like 50%, but it’s still a significant percentage). That’s not because of abortions; it’s because of the vagaries of human physiology. Pregnancy is a complex process and things often go wrong.

But assuming all goes well, pregnancy usually lasts around 40 weeks (the normal range being between 37 and 42 weeks). There is no point at which a fetus officially becomes a “baby”; doctors call it a “fetus” until it’s born. But doctors typically consider 24 weeks to be the point of potential viability, when an infant can theoretically survive outside the womb. Sadly, for “extreme pre-term” infants, survival isn’t guaranteed at all.

There was no way in 1973 for the Supreme Court to set an exact limit on when abortions are allowed. The only question was where to put the rough limit. They didn’t want to make it too soon or too late. Too soon would interfere with a woman’s right not to become a mother. Too late would interfere with an imminent birth. So the majority on the Court decided that women have a right to end their pregnancy until the fetus can survive outside the womb. Medical science said that this “potential viability” occurs after 24 to 28 weeks of pregnancy.

The Los Angeles Times quotes a law professor who points out that when Roe v. Wade was decided, “there was no Republican-Democrat divide on abortion. In a poll taken shortly before [the decision], 68% of Republicans and 58% of Democrats said the decision to have an abortion should be made by a woman and her physician” (the Democratic percentage was probably lower because Catholics tended to be Democrats back then).

So, after Roe v. Wade, states made laws allowing abortions before viability; some more conservative states specified 20 weeks. Today, according to the Kaiser Family Foundation, “abortions at or after 21 weeks are uncommon, and represent [only] 1% of all abortions in the US”. According to US News, 94% of abortions are performed at or before 13 weeks.

Unfortunately, Roe v. Wade was the catalyst for the Christian Right to get involved in politics. They got organized and argued that a fetus has a right to be born, even if it’s a day old. They have the right to hold that opinion (see the 9th amendment). The issue is whether that opinion should be made into law. If they really think all fetuses are people and all abortions are murder, all abortions should be illegal. Whether the woman was raped shouldn’t be an exception. Whether she was made pregnant by her brother or father shouldn’t be. Not even the mother’s life should be an exception, since, given the choice between saving the life of a mother and her baby, most of us would want the baby to survive.

If you take the 9th amendment seriously, however, we all have rights not mentioned in the Constitution. Among those rights are the right to privacy as we go about our lives, the right to control our bodies and what’s inside them, and the right to make our own decisions. Rights do conflict, but there’s no doubt that we should be free from government interference most of the time. Getting pregnant is a normal part of women’s lives. Deciding not to be pregnant is also normal. Seeking and receiving the kind of care modern medicine can provide is normal as well. The government should try not to interfere in such cases. The five most reactionary members of the Supreme Court — all of whom claim to love freedom — should understand that and leave Roe v. Wade alone.

We Are at Their Mercy

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There are six Republicans on the Supreme Court. Three of them were nominated by a president who encouraged his followers to overturn an election after he’d lost the popular vote for the second time. Two others were nominated by a president who lost the popular vote the first time he ran, but became president anyway because a 5-4 Republican majority on the Court ordered the vote counting in Florida to end. The sixth Republican was elevated to the Court after he lied to Congress about his sexual harassment of Anita Hill.

This week five of those Republicans demonstrated that they can find an excuse in what they call “the law” to do anything they want in service of their reactionary ideology.

From Charles Pierce of Esquire:

My generally unfocused red-eyed rage at what the Supreme Court did late Wednesday night cleared momentarily and I realized that, according to the 5-4 decision allowing the blatantly unconstitutional anti-choice Texas law to stand, a state can pass all kinds of blatantly unconstitutional laws as long as they leave the enforcement of those laws to bounty hunters.

This moment of clarity passed, quickly, and unfocused red-eyed rage reasserted itself. This was completely appropriate when directed at a corrupted Supreme Court majority which did what it wanted to do, legitimate precedents be damned, and through such preposterous playground illogic that William Blackstone should rise from his unquiet grave and smack all five of those hacks upside their watery heads with copies of his Commentaries. 

We all knew that Brett Kavanaugh and Amy Coney Barrett were bag-job nominations for the specific purpose of voting the way they did late Wednesday night, and we all knew that Neil Gorsuch and Sam Alito were just waiting in the weeds with Clarence Thomas.

But, at their moment of ultimate triumph, they at least could have tried a little harder. I mean, look at this mess.

To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits,” that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is consistent with the public interest. . . .

The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. [Note: I quoted a different part of the mess than Mr. Pierce did]

The Supreme Court of the United States is saying two things here: 1) that it really doesn’t understand the law it is being asked to adjudicate, and 2) that the Texas law, which depends upon a transparent scheme to dodge judicial review, is beyond the Supreme Court’s reach because its transparent scheme to dodge judicial review is so cleverly drawn. No wonder the five cowards in the majority issued their order unsigned. I wouldn’t want my name attached to this pile of offal, either.

Justices Sonia Sotomayor and Elena Kagan were not so reticent, and they clearly can see a church by daylight. From Sotomayor:

The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand…Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent…In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.

The Legislature fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing. By prohibiting state officers from enforcing the Act directly and relying instead on citizen bounty hunters, the Legislature sought to make it more complicated for federal courts to enjoin the Act on a statewide basis.

Today, the Court finally tells the Nation that it declined to act because, in short, the State’s gambit worked. The structure of the State’s scheme, the Court reasons, raises “complex and novel antecedent procedural questions” that counsel against granting the application, just as the State intended. This is untenable. It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.

For her part, Kagan expanded her anathemas to include the Court’s continuing abuse of its “shadow docket,” of which this order is the apotheosis.

Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. . . . It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow-docket decision-making—which every day becomes more unreasoned, inconsistent, and impossible to defend.

(It is notable that [Republican] Chief Justice John Roberts joined the minority in dissent. This further reinforces my belief that the only issues on which Roberts is reliably implacable are restricting the franchise and enhancing the corporate power of the oligarchy. That’s why Citizens United is his defining decision. For Roberts, that was a two-fer.)

Expand the Court. Do it tomorrow. Jesus Christ, a 5-4 majority just ruled that a cheap legal three-card monte game at the heart of a law was too clever for the Constitution to address.