Perspectives on the Dobbs Decision Overruling Roe v. Wade

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June 26, 2022

There has been much perfervid shouting and rending of garments (or these days, parading about with red splotches on the crotches of their clothing or performative displays in Handmaid’s Tale costumes — red hooded capes) to protest the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. On the other hand, those opposed to abortion hail this decision, claiming abortions will end or be much reduced.

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Neither side is right. I believe the decision will not substantially lessen the number of abortions. On the other hand, I do think that it signals a significant retreat from the days when the Supreme Court creatively crafted imaginary rights to strip the states of their constitutional role. Federalism is back.

I also believe the attorney general’s response to the rioting and threats by Roe proponents and to the Bruen decision on gun ownership reveals him as a man insufficiently respectful of the Supreme Court and unwilling to perform his sworn duty to impartially enforce the law. He deserves to be impeached.

Dobbs in short: a New Respect for Federalism 

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In Dobbs, Justice Samuel Alito, speaking for the majority, wrote: 

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”

The right to abortion does not fall within this category.

Indeed, as the Wall Street Journal editors note:  

Roe was the real “exercise of raw judicial power,” as Justice Byron White put it in dissent in 1973. That’s when seven Justices claimed to find a constitutional right to abortion that is nowhere mentioned in the Constitution and had no history in American common law. The Court on Friday finally corrected its mistake, which has damaged the legitimacy of the Court and inflamed our politics for 49 years. [snip]

Justice Alito’s majority opinion hews closely to his draft, and it is a careful, thoughtful survey of abortion law and its history in the constitutional order. His opinion takes apart, brick by logical brick, the reasoning of Roe and Planned Parenthood v. Casey, the other main abortion precedent the Court overrules in Dobbs. 

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The decision does not, contrary to some of its critics, constitute legislating by unelected judges — that was the Roe Court. This decision puts the entire question in the hands of the states, which pre-Roe handled the issue. In other words, the citizens of each state can now decide when and under what conditions abortions can be performed within its borders. 

Why is returning power to the states so important and why is this notion of a return to federalism gaining ground? I think the best explanation is found at Bari Weiss’s substack. 

 One thing I keep thinking about is a piece that Alana Newhouse, the editor in chief of Tablet, wrote for us last year about the urgency of state power — the dawn of a renewed federalism in the 21st century.

“For decades, a strong federal government was the preferred soldier for me, and for many people I knew,” she wrote. No longer. In the era of lockdowns and vaccine passports and, especially, the emergence of social credit systems, federal power no longer looked so benign. 

“In the face of this seemingly omnipresent power, where can one find shelter?” she asked. Her answer: the states. Don’t like the lockdowns in Brooklyn? Move to Miami. Don’t like the income tax in Los Angeles? Consider Juneau.

“In ways the founding fathers did not foresee — or did they? — we seem to be facing something quite unexpected. A new era of the states is upon us,” 

Justice Clarence Thomas said many things in his concurring opinion worthy of mention, but the most important is that the “substantive due process” argument underpinning Roe “exalts judges at the expense of the People from whom they derive their authority.” He and the Court’s majority have now handed the right to decide back to the voters.

The Impact of Dobbs

Dobbs is unlikely to substantially reduce the number of abortions, will fatten Planned Parenthood’s coffers as the fight will continue state by state, and will increase abortion tourism to states like New York and California. (It may result in the organizations shifting their campaign work and contributions to local races, away from national ones, imagining, as I do, Congress will not pass a national abortion act.)

Between 2017 and 2020 when many GOP states placed restrictions on abortions — such as waiting periods and parental notification requirements when minors were involved — “abortions increased 8%.”

How can that be? “Local and national abortion funds increased their capacity and helped even more people pay for their abortions.” The prospect of the end of Roe fattened Planned Parenthood’s coffers. Do you imagine that the actuality will not increase this bonanza?

Attorney General Merrick Garland Deserves to be Impeached

This week, the Department of Justice twice took a swipe at the Supreme Court, something I have never seen before or hope to see again. It’s disrespectful, but worse, ignores the deference the Executive must pay the Judicial branch. On June 23, it fired the first salvo. Regarding the decision in New York State Rifle & Pistol Association, Inc, et al, v. Bruen, the Department of Justice issued a press release “respectfully” disagreeing with the Court’s decision that the Second Amendment forbids making individuals seeking to carry a concealed weapon show they need it for self-defense. The press release concluded:

“The Department of Justice remains committed to saving innocent lives by enforcing and defending federal firearms laws, partnering with state, local and tribal authorities and using all legally available tools to tackle the epidemic of gun violence plaguing our communities.”

DoJ did not specify which, if any, federal laws were impacted by the decision. I can’t imagine any. I do remember the DoJ’s role in Fast and Furious, where federal agencies purposely allowed the sale of firearms to illegal strawmen, firearms which were used to commit crimes in the U.S., including the shooting death of a U.S. Border Patrol agent, and where the then-attorney general, Eric Holder, refused to provide Congress with relevant documents, even after the courts ruled these were not covered by executive privilege. 

Following the leak of the Alito decision, picketers began loud demonstrations outside the homes of justices listed as being in the majority on Dobbs. Governors Glenn Youngkin (Virginia) and Larry Hogan (Maryland), where the targeted justices live, wrote to the attorney general, urging him to “enforce the law as written.” There is a federal statute specifically prohibiting such conduct, but he never condemned it or arrested those involved even after one man attempted to break into Justice Brett Kavanaugh’s home and murder him. (An attempted murder that was  halted only when the  plotter got cold feet and turned over his weapons.) After the decision was released this week, the demonstrations continued in greater force at the homes of the justices and the Supreme Court itself. Churches and centers that work to help pregnant women avoid abortion have been attacked with fire bombs and defacements. Still, nothing from Garland. 

President Biden, Speaker Pelosi, Congresswomen Maxine Waters, Alexandria Ocasio-Cortes, and Senator Elizabeth Warren made incendiary statements after the release of the opinion. On social media, dissenting groups openly threatened violence. No condemnation from the attorney general. Instead, the Department of Justice released a statement condemning the decision and thereby adding to the vitriol. 

“The Justice Department strongly disagrees with the Court’s decision. This decision deals a devastating blow to reproductive freedom in the United States. It will have an immediate and irreversible impact on the lives of people across the country. And it will be greatly disproportionate in its effect – with the greatest burdens felt by people of color and those of limited financial means.”

The statement continues that women in states where abortion would be denied them can travel to other states where it is legal. It concludes that the department will not tolerate violence and threats of violence, but I have not seen a single arrest of those engaging in it. 

The department pledges to “continue to protect healthcare providers and individuals seeking reproductive health services in states where those services remain legal,” but says nothing about protecting churches and providers of alternate counseling and services.

It urges Congress to “codify Americans’ reproductive rights, “which it retains the authority to do.” (Fat chance.) And specifically contends that no state may ban the drug Mifepristone “based on disagreement with the FDA’s expert judgment about its safety and efficacy.” (This is an abortifacient drug used along with Misoprostol) to end pregnancies of less than 70 days. 

In sum, it slams the court, talks about work-arounds, and, despite promising to act against violence toward those opposing abortion or supporting the decision, has no record of having done so.

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