Writes Justice Alito in the majority opinion in Dobbs v. Jackson Women's Health Organization (citations omitted).
June 24, 2022
"The dissent is very candid that it cannot show that a constitutional right to abortion has any foundation, let alone a '"deeply rooted'" one, '"in this Nation’s history and tradition."'"
"The dissent does not identify any pre-Roe authority that supports such a right—no state constitutional provision or statute, no federal or state judicial precedent, not even a scholarly treatise. Nor does the dissent dispute the fact that abortion was illegal at common law at least after quickening; that the 19th century saw a trend toward criminalization of pre-quickening abortions; that by 1868, a supermajority of States (at least 26 of 37) had enacted statutes criminalizing abortion at all stages of pregnancy; that by the late 1950s at least 46 States prohibited abortion 'however and whenever performed' except if necessary to save 'the life of the mother,' and that when Roe was decided in 1973 similar statutes were still in effect in 30 States. The dissent’s failure to engage with this long tradition is devastating to its position. We have held that the 'established method of substantive-due-process analysis' requires that an unenumerated right be '"deeply rooted in this Nation’s history and tradition"' before it can be recognized as a component of the 'liberty' protected in the Due Process Clause. But despite the dissent’s professed fidelity to stare decisis, it fails to seriously engage with that important precedent—which it cannot possibly satisfy."
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65 comments:
Nasty Nancy is crying on TV that they cancelled a constitutional right. She is inciting violence. Time for Nancy to be gulaged.
Alito to Kagan: Up your game!
Dicta in dissent tends to become law of the land...if it furthers American communism.
Nothing says you can't say bad things like "you can't yell fire in a crowded theater".
Precedent!!
I wonder if RGB would be nodding her head in agreement to Alito's argument. I think she would still vote in dissent.
so continues the disdain for using 9A for foundational arguments regarding freedom and rights : which if respected would smithereen USA political legislational jurisprudence
So traditionalism will be both a sword and a shield for the reactivist Justices in majority on the Court.
The tide is turning
The shark has been jumped
Roe is rolled
And the left is drunk.
(Half-rhymes are acceptable, bigots.)
“abortion was illegal at common law at least after quickening”
So there was a tradition before quickening.
Many, including me, always felt the ruling in Roe V Wade was overstepping the bounds of the Supreme Court. States have rights beyond the Constitution, and states can make any law they want about the aspects of life not specifically addressed in the Constitution.
I know people regard the racist Dred Scott decision as the worst Supreme Court decision ever. I now predict a revision away from that belief.
Roe was the worst of the worse.
The 9th Amendment states "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people." So, there's nothing in the Constitution that forbids abortions. Who can say it is not one of those other rights "retained by the people" that is not explicitly enumerated?
In any case, it's time for the citizens who approve of legal abortion (a majority of the populace) to organize and demand their state legislators make abortion available by law.
Dumb-guy question: What does "quickening" mean in this context?
Riots to come on time. The pro-abortion left will try to intimidate.
Wow. Alito administered a serious beat-down to the dissent on that lack of history or tradition…
That’s a spanking.
If Harry Blackmun was capable of such reasoning, we would never have had this coming fiasco.
Alito is basically saying that we need a reset based on constitutional understanding rather than politics.
What an amazing 24 hours. All Americans are now free to defend themselves and the people can advocate for the lives of unborn in their state legislatures.
Pre Roe the unplanned ox in a teen was automatic. She would go away 6 months and the innocent baby was adopted by families that could not conceive…like todays gay married families. What’s wrong with that. Ask the 70 something Americans that were adopted in the 50s. Many of them
are the best people you’ll ever meet.
"States can make any law they want about the aspects of life not specifically addressed in the Constitution. "
Unless it's Utah. And Utah legalizes polygamy. No, sir, then the courts will see something entirely different.
"What does "quickening" mean in this context?"
It means that moment when the baby starts moving inside your body.
Also: When there can be only one.
Unplanned pregnancy. Not ox.
"Alito administered a serious beat-dow"
Constantly invoking the late Ruth Bader Ginsberg's prior writings in defense of his positions was pretty bad ass.
wendybar - are you capable of making a non-inane comment?
So, the draft was circulated to elicit a persuasive legal argument from the dissenters, who couldn't come up with one?
Almost like Roe was always the poorly rationalized decision the professors said it was. Or rather got us to say.
I mean, liberal professors.
Robert, you people can still kill your children in lots of states. As a matter of fact, watch as they change laws to kill them after birth. Nothing is going to stop people who love to murder. (I'm talking about women who have multiple abortions because they are too lazy to take birth control....there are a lot of them, and they brag about it.)
Montana's legislative election is gonna be lit. There is an express right to privacy in our constitution but that won't stop the GOP from trying.
Will Cate said...
Dumb-guy question: What does "quickening" mean in this context?
the baby's kicking (or moving). It is NOT an inanimate lump of cells
SERIOUSLY, once you've felt your baby kick; things are NOT the same
Look at Cook sounding like Bob Dole extolling the substance of the 9th and 10th amendments. Yes Robert that’s the proper way to approach it. Don’t forget about this moment the next time DC tries to impose its unconstitutional will on the states.
nicely sequenced 2A b4 Dobbs
Left Bank of the Charles: "So traditionalism will be both a sword and a shield for the reactivist Justices in majority on the Court."
Moronically wrong.
Try again.
Owen: "Wow. Alito administered a serious beat-down to the dissent on that lack of history or tradition…"
Shhhh!
Left Bank is still in "was it over when the Germans bombed Pearl Harbor?"-mode.
Montana's legislative election is gonna be lit. There is an express right to privacy in our constitution but that won't stop the GOP from trying.
As in the 2A case, the arguments of the dissenters would be entirely appropriate if they were legislators.
Cook,
The fact that so many states outlawed abortion for over 100 years shows that the 9th Amendment argument for the right to abortion was weak.
But in 25 years it may be strong. If 43 states start to allow abortion up to 20 weeks then that’s good evidence of the strength of the right.
Gambling was prohibited by most states for a long time. But now many states allow it. So in 20 years, the people in the handful of states that don’t allow gambling will have a good argument that gambling is an unenumerated right.
The hardest thing for the dissent is that the Bruen gun case was about 43 states that allow concealed carry once an adult passes a background check. That’s a supermajority of states. Way more than allowed gay marriage. If 15 states allowed gay marriage before it became a constitutional right, how is it that concealed carry is not a constitutional right when 43 states allow it?
Blogger Robert Cook said...
"The 9th Amendment states "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people." So, there's nothing in the Constitution that forbids abortions. Who can say it is not one of those other rights "retained by the people" that is not explicitly enumerated?
In any case, it's time for the citizens who approve of legal abortion (a majority of the populace) to organize and demand their state legislators make abortion available by law."
They already do. I don't think there is one state where abortion is illegal. Does it also violate equal protection? There is also nothing in the constitution that allows states to regulated a right either.
The dissent’s failure to engage with this long tradition is devastating to its position.
Which was also the case with Obergefell. It'll be harder to overturn than Roe because nobody's getting killed, but, if we're lucky, maybe the Left will finally enjoy their overwhelming cultural victories and leave it at that rather than trying force us all to pretend things like abortion and SSM are constitutional rights.
Your side won where it matters. Take yes for an answer. Stop being poor winners.
Montana's legislative election is gonna be lit. There is an express right to privacy in our constitution but that won't stop the GOP from trying.
A lot of state-level races are going to be interesting over the next few years. This is a fight that state legislators would have preferred not to have, and now they're going to be expected to actually do their jobs.
The Constitution, the social compact, is written to two parties: "the People" and "our Posterity". Civilized society has a compelling cause to discourage homicide.... elective abortion for social, redistributive, clinical, and fair weather causes.
That said, there is no mystery in sex and conception, a woman and man have four choices, and an equal right to self-defense through reconciliation. The wicked solution is neither a good nor exclusive choice.
Roe's regrets. Ruth's remorse. Republicans' resolution...
The right to privacy, the right to homicide, the right to elective abortion, the right to grooming children for sexual progress, the performance of human rites in darkness... if you can get away with it.
Six weeks until baby meets granny. A step in the humane direction.
Robert, you people can still kill your children in lots of states
As slavery and [rabid] diversity [dogma] (e.g. racism, sexism, ageism) before in progress (e.g. planned parent/hood). That said, democracy dies in darkness, demos-cracy is aborted at The Twilight Fringe.
So do I need to order an updated copy of the constitution? Or do I just find the section that contains the right that the Supreme Court removed and cross it out?
The 9th Amendment states "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people." So, there's nothing in the Constitution that forbids abortions. Who can say it is not one of those other rights "retained by the people" that is not explicitly enumerated?
I can. At the time the 9th Amendment was written and passed, abortion was considered as murder. It was never the intent of those who wrote or voted for the 9th Amendment to create a right to kill your baby.
I wonder if RGB would be nodding her head in agreement to Alito's argument. I think she would still vote in dissent.
Maybe. Although, she clinged to viability, perhaps to deny Barack "burden" Obama his choice.
That said, Roe is not overturned, but the viability of baby will meet granny et al in pro-human rights, pro-woman, man, and child states, which is a step in the humane direction under The Constitution.
Roe's regrets. Ruth's remorse. Republicans' resolution...
Trump delivered. Both on abortion and the second amendment. No Republican challenger can top that if Trump were to run again.
Abortion will be decided shortly at the state level where it should be. Perhaps one or two states will not allow abortions, the rest will with varying cutoff points.
Constitutional carry will soon be in every state.
School vouchers will soon be available nationally. Come to think of it, Trump delivered a trifecta.
For an amature politician with a too big ego and mouth he has done more than any Republican president since Coolidge. I just hope he would learn to speak less and get a thicker skin before he decides to run again.
mccullough said...
Gambling was prohibited by most states for a long time. But now many states allow it. So in 20 years, the people in the handful of states that don’t allow gambling will have a good argument that gambling is an unenumerated right.
Lotteries were common in the colonial era. "Lotteries were a part of British settlements in American from the very beginning. In 1612, the Virginia Company of London held a lottery to fund ships bound for the Jamestown Colony. The prize was 4,000 crowns, a good amount of money in those days."
One of many examples simply by searching for lotteries in the colonial era.
Then there's this: Beginning in the 1600s, the first wave of American gambling began. Colonists sailed from England to “The New World”. Gambling was then deemed illegal in the New England Colonies. Then, in the 1700s, the Southern Colonies had Gentleman’s Gambling.
All 13 original colonies established lotteries to raise revenue and playing became a civic responsibility in the 1770s. A good question would be- did they consider lotteries as gambling or just things like card games and dice where there was no public benefit, only private gain and private ruin? The article I got that from was written in 2012 when there were 26 states that allowed casino gambling. NY does now, sort of, only on Indian territory within the state. From what I can infer the states that have done thins do it to allow their own hands to remain clean from the dirty field of gambling. The lotto in NY is a jobs program for the politically connected. Every county in NY has a lottery commissioner who makes 6 digits. I'd be interested in anyone's theory of why the lottery commissioner in St Lawrence County NY population 108,000 is worth 6 digits I'd be interested in hearing it.
"At the time the 9th Amendment was written and passed, abortion was considered as murder. It was never the intent of those who wrote or voted for the 9th Amendment to create a right to kill your baby."
Mmmm...apparently, you are incorrect.
Carol said...
Montana's legislative election is gonna be lit. There is an express right to privacy in our constitution but that won't stop the GOP from trying.
************
And that's exactly how things should work.
AFAIK there's nothing federally unconstitutional about declaring "a right to privacy" in a state constitution.
Especially since the Dodd case explicitly rejects that "right".
But the question will now be raised: Just how far does that right go---NOT that it's a federal right the state has to comply with.
Have fun!
@Narayanan --
The Ninth Amendment was never intended to vest the Supreme Court with a divining rod to search for rights that it might find appealing. Potter Stewart had it right:
[T]o say that the Ninth Amendment has anything to do with this case [Griswold] is to turn somersaults with history. The Ninth Amendment, like its companion, the Tenth, which this Court held "states but a truism that all is retained which has not been surrendered", United States v. Darby, 312 U.S. 100, 312 U.S. 124, was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today, no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annul a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder
WK said...
So do I need to order an updated copy of the constitution? Or do I just find the section that contains the right that the Supreme Court removed and cross it out?
**************
Heh. I suspect many enraged libs will be doing that.
And become very perplexed.
Where IS that damned right to abortion?
The baby-killers used to say, "I can't find that right in the Constitution, but the Roe/Casey decisions held-----like the old Prego spaghetti sauce ad---- "It's in there."
Not any more.
@cubanbob --
Even states that outlaw abortion from the moment of conception will have exceptions for rape and to save the life of the mother. In other words, no state will prohibit abortion absolutely. Count on it.
@mcculough --
The widespread and even longstanding legal status of a given activity does not render such activity a constitutional right even under the most generous understanding of the 9th Amendment.
WK asked: "So do I need to order an updated copy of the constitution? Or do I just find the section that contains the right that the Supreme Court removed and cross it out?"
No, your copy is still good. Still says the same things it's always said. Which is nothing about abortion whatsoever.
"I don't think there is one state where abortion is illegal."
That is coming.
So traditionalism will be both a sword and a shield for the reactivist Justices in majority on the Court.
Or, you know, it will continue to be examined and applied in accordance with court doctrine.
Unplanned pregnancy. Not ox.
That is quite a typo!
>>This is a fight that state legislators would have preferred not to have, and now they're going to be expected to actually do their jobs.
Wibble for the win. With a few exceptions, modern politicians run away from controversial positions, and let the courts deal with them.
Which is why homosexuals getting married was illegal one day, and legal the next, without the laws actually changing.
Hey, "that is coming" Cook.
No state will prohibit abortion absolutely, even if I wish it could happen. Even the most conservative states will have exceptions for rape and the life of the mother. Most states will settle on 12 or 15 weeks. And liberal states will pretty much allow infanticide.
Want to bet? I'll wager dinner anywhere in the continental US. Come on. Take me up on it. Please.
(I'm talking about women who have multiple abortions because they are too lazy to take birth control....there are a lot of them, and they brag about it.)
I presume that this is true, because it is true in my own experience etc etc. An article in the NYT (dated the 22nd) includes vignettes about a series of women who were investigating the abortion possibilities online and got entrammeled by the guiles of what are called (in the article, anyway) 'pregnancy care centers' i.e. facilities operated to convince women to care for their unborn children not end their lives. I thought it fascinating that for some reason none of the women interviewed had relied on the prospect of abortion's availability as 'birth control' or just said outright that they didn't want the babies. I could deduce that the multiple-abortion people don't really exist, or (perhaps) that the NYT has its agenda and stuck to it.
>>I could deduce that the multiple-abortion people don't really exist, or (perhaps) that the NYT has its agenda and stuck to it.
Whoopi Goldberg had 7 abortions by age 25, and I believe a few more after that.
Whoopi Goldberg had 7 abortions by age 25, and I believe a few more after that.
Martha Plimpton bragged that her first abortion was her "BEST ONE" “Heads and tails above the rest,” she continued on her abortion. “If I could Yelp review it, I totally would. And if that doctor’s here tonight, I don’t remember you at all, I was 19. I was 19, but I thank you nonetheless.”
Whoopi and Martha, what a pair! I tend to get Amy Sedaris and Martha Plimpton confused.
Yelp has gone onto my Don't Do Business With list because they are planning to pay for female employees to travel to 'free states' in search of abortions. Pft.
Left Bank of the Charles said...
“abortion was illegal at common law at least after quickening”
So there was a tradition before quickening.
_________________________________________________
Why yes, there was. It is discussed at length in the decision.
The tradition was, ‘abortion before quickening is a serious crime.’
Robert Cook said...
The 9th Amendment states "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people." So, there's nothing in the Constitution that forbids abortions. Who can say it is not one of those other rights "retained by the people" that is not explicitly enumerated?
In any case, it's time for the citizens who approve of legal abortion (a majority of the populace) to organize and demand their state legislators make abortion available by law.
_____________________________________________________
Discussed at length in the decision, with the reasons the majority finds it is not a Ninth Amendment right.
Am I the only one who read the decision?
WK said...
So do I need to order an updated copy of the constitution? Or do I just find the section that contains the right that the Supreme Court removed and cross it out?
________________________________________________
No one has ever found that section, including the majorities in Roe and Casey. If you can find it, millions will be grateful.
Robert Cook said...
"At the time the 9th Amendment was written and passed, abortion was considered as murder. It was never the intent of those who wrote or voted for the 9th Amendment to create a right to kill your baby."
Mmmm...apparently, you are incorrect.
__________________________________
Alas, they made that up. Try reading the decision.
"In any case, it's time for the citizens who approve of legal abortion (a majority of the populace) to organize and demand their state legislators make abortion available by law."
You mean actually use the democratic process to affect change? That road leads to madness sir!
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