- Jun 6, 2007
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The draft opinion of Supreme Court Justice Samuel Alito in the case of Dobbs v. Jackson Women's Health Organization case, the current case challenging the 1973 landmark abortion case of Row v. Wade, was leaked to the public and has caused a huge public uproar for how it decides this case but it also deserves a giant public uproar about the low quality of the legal opinion and the appropriateness for our country having a not very capable Judge making such a critical decision for the nation. It contains distortions and inaccuracies and statements which involve poor legal analysis, frankly it reveals a Judge that does not have the character or legal acumen to be on the Supreme Court, to be on the panel of Appellate Judges that are the final arbiter of what America's law stands for!
On page two of the opinion it says that the Roe case makes an "assertion that abortion was probably never a crime under common law". That is a false statement; the Roe court referenced that the common law seemed to distinguish between abortions that were pre-quickening (pre-movement by the fetus) and post-quickening and that post-quickening abortions were only considered crimes, considered misdemeanors or felonies and even the common law in that area is muddied. In any event, the Roe court never asserted that abortion was probably not a crime under common law but rather that the common law record was not real clear on the issue, the relevant part of the Roe opinion was "(A review of the cases) makes it now appear doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.".
Further on page two Justice Alito criticizes the trimester framework of Roe by essentially saying it involves a bunch of rules and references a constitutional scholar who essentially said the Roe decision is not worthy of an appellate court charged with making constitutional rulings. A Supreme Court Justice should not disregard the essence of the Supreme Courts work as such comments incorporate or entail. Part of the essence of the work of the Supreme Court is identifying constitutional rights that people are entitled to and balancing public interest against those rights that is all the trimester framework is it is the outcome of a balancing test process, a core protocol of the Supreme Court. Criticize the outcome of the test but not the test itself, in conducting it the Roe court was doing its job. It is very disturbing Justice Alito's assertion in paragraph two on page two that the Roe court did not explain the basis for its conclusion that states interests in protecting "potential life" life did not justify any restriction on previability abortions; it is very disturbing for its ignoring the truth the Roe court did explain its basis here. The Roe Court on page 155 essentially said that the privacy right at issue here, the right to an abortion, is a "fundamental" right where the constitutional test to be used to test the constitutionality of any state law regulating such right is the "strict scrutiny" test where in order for the state to be able to infringe on that right through its statute it is going to have to have a "compelling" state interest and the infringement is going to have to be tailored "narrowly" with the sole purpose of just furthering that compelling state interest. The Roe Court on page 156 essentially says that some state courts that have looked at this issue have concluded that the interest of the state in protecting potential life is not strong enough during the early stages of a women's pregnancy (previability) to justify interfering with that abortion right of a women. Further, on page 163 the Roe court says that the state interest in protecting potential life only becomes compelling at the point of viability in the pregnancy and its reasoning is "this is so because the fetus then presumably has the capability of meaningful life outside the mother's womb.".
On page three Justice Alito references the Casey case a very important case for it is deemed by most knowledge people on the abortion issue as the second most important Supreme Court abortion case second to the Roe case. Justice Alito writes that in the lead opinion for the Casey case written by three Justices in the majority that these Justices did not endorse the Roe's reasoning (on Roe's holding) and these Justices opinion "even hinted that one or more of its authors might have "reservations" about whether the Constitution protects a right to abortion". These are half-truths and major distortions and major mischaracterizations of the Casey holding. On Justice Alito's first contention here, Roe essentially held that the right to an abortion is a substantive due process right stemming from the due process clause of the Fourteenth amendment specifically from the broad category of liberty rights explicitly referenced in that clause. The Casey lead opinion fully supports that reasoning where it writes on page 846 "Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment.". In regards to Justice's Alito's second contention, the Casey lead opinion references that one or more of the Justices might have reservations about Roe but that reservation goes to the "central holding" of Roe (page 861), the central holding includes the importance of viability in the legal analysis especially in regards to the states ability to protect potential life (page 871).
Justice Alito on page four of his opinion referenced how the Casey court changed the constitutional test for evaluating state laws regulating abortion rights from the strict scrutiny test to the undue burden test and disparages the tests as being of uncertain origin. This is illegitimate criticism, the Casey court provided a lot of authority for the new tests. It needs to be remembered that in the Casey case the PA laws at issue didn't in any way block a women from getting an abortion it just created hurdles she had to overcome in order to get an abortion. So the Casey court justified its new "undue burden" tests by explaining on page 873 "As our jurisprudence relating to all liberties save perhaps abortion has recognized, not every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right. An example clarifies the point. We have held that not every ballot access limitation amounts to an infringement of the right to vote. Rather, the States are granted substantial flexibility in establishing the framework within which voters choose the candidates for whom they wish to vote. Anderson v. Celebrezze, 460 U. S. 780, 788 (1983); Norman v. Reed, 502 U. S. 279 (1992).". The Casey Court further referenced early abortion cases for authority, on page 874-875, "In Maher v. Roe, 432 U. S. 464, 473-474 (1977), the Court explained: "Roe did not declare an unqualified 'constitutional right to an abortion,' as the District Court seemed to think. Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy." See also Doe v. Bolton, 410 U. S. 179, 198 (1973) ("[T]he interposition of the hospital abortion committee is unduly restrictive of the patient's rights"); Bellotti I, supra, at 147 (State may not "impose undue burdens upon a minor capable of giving an informed consent"); Harris v. McRae, 448 U. S. 297, 314 (1980) (citing Maher, supra). Cf. Carey v. Population Services International, 431 U. S., at 688 ("[T]he same test must be applied to state regulations that burden an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely").".
Further on page four Justice Alito makes the inaccurate claim that the Casey court "provided no clear guidance about the difference between a "due" and an "undue" burden. The Casey Court makes a great effort to define what an "undue" burden is so if one uses good faith and common sense which Supreme Court Justices in their roles as Justices should be doing they could readily define a due burden as state regulation that is reasonably related to furthering a state's legitimate interest which is not an undue burden and that is all that is needed to fairly define a due burden. The Casey Court's efforts to define "undue burden" included the statements "A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends." (page877) and "Some guiding principles should emerge. What is at stake is the woman's right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose. See infra, at 899-900 (addressing Pennsylvania's parental consent requirement). Unless it has that effect on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal. Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden." (page877 and 878).
One aside note, in the media it has been reported that some law schools are pursuing and there is a push across our nation to do away with LSAT testing for admission to law schools. I think that is a catastrophic mistake for the nation; one doesn't have to be extraordinarily intelligent to be a good lawyer but one has to be fairly intelligent, a quality commonly seen in our society. But what one needs is good comprehensive skills, good analytical ability and the ability to perform adequately under pressure all skills that the LSAT identifies and measures for at least adequate levels. One gets the sense from the media reports that the motivation behind this effort is to make our law schools more diverse; making America law schools optimally diverse is an excellent goal and I hope it succeeds fabulously. But we don't have to lower the standards for admission below critical levels which this change will cause. This writer is around sixty years old and has extensively dealt with people from a broad array of races, ethnic backgrounds and genders, all such demographic groups have an abundance of people with the intellectual ability to be at least good lawyers. Some people in all demographic groups may need training to develop the skills to be good lawyers but they have the natural ability; but many people across our society don't have the natural ability and/or skill set to be good lawyers and America's society should not let them become lawyers and I believe this change will bring this outstandingly bad result of people that don't have the ability to do the job becoming lawyers. Lawyers can have huge impacts on people's lives, people that work as lawyers have to be at least competent lawyers; the American people and leaders in our country should not allow this "drop the LSAT requirement" for our nation's law schools to go through because ultimately lots of ordinary Americans will continually pay for this mistake with harm to their lives at the hands of their not capable lawyers!
On page two of the opinion it says that the Roe case makes an "assertion that abortion was probably never a crime under common law". That is a false statement; the Roe court referenced that the common law seemed to distinguish between abortions that were pre-quickening (pre-movement by the fetus) and post-quickening and that post-quickening abortions were only considered crimes, considered misdemeanors or felonies and even the common law in that area is muddied. In any event, the Roe court never asserted that abortion was probably not a crime under common law but rather that the common law record was not real clear on the issue, the relevant part of the Roe opinion was "(A review of the cases) makes it now appear doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.".
Further on page two Justice Alito criticizes the trimester framework of Roe by essentially saying it involves a bunch of rules and references a constitutional scholar who essentially said the Roe decision is not worthy of an appellate court charged with making constitutional rulings. A Supreme Court Justice should not disregard the essence of the Supreme Courts work as such comments incorporate or entail. Part of the essence of the work of the Supreme Court is identifying constitutional rights that people are entitled to and balancing public interest against those rights that is all the trimester framework is it is the outcome of a balancing test process, a core protocol of the Supreme Court. Criticize the outcome of the test but not the test itself, in conducting it the Roe court was doing its job. It is very disturbing Justice Alito's assertion in paragraph two on page two that the Roe court did not explain the basis for its conclusion that states interests in protecting "potential life" life did not justify any restriction on previability abortions; it is very disturbing for its ignoring the truth the Roe court did explain its basis here. The Roe Court on page 155 essentially said that the privacy right at issue here, the right to an abortion, is a "fundamental" right where the constitutional test to be used to test the constitutionality of any state law regulating such right is the "strict scrutiny" test where in order for the state to be able to infringe on that right through its statute it is going to have to have a "compelling" state interest and the infringement is going to have to be tailored "narrowly" with the sole purpose of just furthering that compelling state interest. The Roe Court on page 156 essentially says that some state courts that have looked at this issue have concluded that the interest of the state in protecting potential life is not strong enough during the early stages of a women's pregnancy (previability) to justify interfering with that abortion right of a women. Further, on page 163 the Roe court says that the state interest in protecting potential life only becomes compelling at the point of viability in the pregnancy and its reasoning is "this is so because the fetus then presumably has the capability of meaningful life outside the mother's womb.".
On page three Justice Alito references the Casey case a very important case for it is deemed by most knowledge people on the abortion issue as the second most important Supreme Court abortion case second to the Roe case. Justice Alito writes that in the lead opinion for the Casey case written by three Justices in the majority that these Justices did not endorse the Roe's reasoning (on Roe's holding) and these Justices opinion "even hinted that one or more of its authors might have "reservations" about whether the Constitution protects a right to abortion". These are half-truths and major distortions and major mischaracterizations of the Casey holding. On Justice Alito's first contention here, Roe essentially held that the right to an abortion is a substantive due process right stemming from the due process clause of the Fourteenth amendment specifically from the broad category of liberty rights explicitly referenced in that clause. The Casey lead opinion fully supports that reasoning where it writes on page 846 "Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment.". In regards to Justice's Alito's second contention, the Casey lead opinion references that one or more of the Justices might have reservations about Roe but that reservation goes to the "central holding" of Roe (page 861), the central holding includes the importance of viability in the legal analysis especially in regards to the states ability to protect potential life (page 871).
Justice Alito on page four of his opinion referenced how the Casey court changed the constitutional test for evaluating state laws regulating abortion rights from the strict scrutiny test to the undue burden test and disparages the tests as being of uncertain origin. This is illegitimate criticism, the Casey court provided a lot of authority for the new tests. It needs to be remembered that in the Casey case the PA laws at issue didn't in any way block a women from getting an abortion it just created hurdles she had to overcome in order to get an abortion. So the Casey court justified its new "undue burden" tests by explaining on page 873 "As our jurisprudence relating to all liberties save perhaps abortion has recognized, not every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right. An example clarifies the point. We have held that not every ballot access limitation amounts to an infringement of the right to vote. Rather, the States are granted substantial flexibility in establishing the framework within which voters choose the candidates for whom they wish to vote. Anderson v. Celebrezze, 460 U. S. 780, 788 (1983); Norman v. Reed, 502 U. S. 279 (1992).". The Casey Court further referenced early abortion cases for authority, on page 874-875, "In Maher v. Roe, 432 U. S. 464, 473-474 (1977), the Court explained: "Roe did not declare an unqualified 'constitutional right to an abortion,' as the District Court seemed to think. Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy." See also Doe v. Bolton, 410 U. S. 179, 198 (1973) ("[T]he interposition of the hospital abortion committee is unduly restrictive of the patient's rights"); Bellotti I, supra, at 147 (State may not "impose undue burdens upon a minor capable of giving an informed consent"); Harris v. McRae, 448 U. S. 297, 314 (1980) (citing Maher, supra). Cf. Carey v. Population Services International, 431 U. S., at 688 ("[T]he same test must be applied to state regulations that burden an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely").".
Further on page four Justice Alito makes the inaccurate claim that the Casey court "provided no clear guidance about the difference between a "due" and an "undue" burden. The Casey Court makes a great effort to define what an "undue" burden is so if one uses good faith and common sense which Supreme Court Justices in their roles as Justices should be doing they could readily define a due burden as state regulation that is reasonably related to furthering a state's legitimate interest which is not an undue burden and that is all that is needed to fairly define a due burden. The Casey Court's efforts to define "undue burden" included the statements "A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends." (page877) and "Some guiding principles should emerge. What is at stake is the woman's right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose. See infra, at 899-900 (addressing Pennsylvania's parental consent requirement). Unless it has that effect on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal. Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden." (page877 and 878).
One aside note, in the media it has been reported that some law schools are pursuing and there is a push across our nation to do away with LSAT testing for admission to law schools. I think that is a catastrophic mistake for the nation; one doesn't have to be extraordinarily intelligent to be a good lawyer but one has to be fairly intelligent, a quality commonly seen in our society. But what one needs is good comprehensive skills, good analytical ability and the ability to perform adequately under pressure all skills that the LSAT identifies and measures for at least adequate levels. One gets the sense from the media reports that the motivation behind this effort is to make our law schools more diverse; making America law schools optimally diverse is an excellent goal and I hope it succeeds fabulously. But we don't have to lower the standards for admission below critical levels which this change will cause. This writer is around sixty years old and has extensively dealt with people from a broad array of races, ethnic backgrounds and genders, all such demographic groups have an abundance of people with the intellectual ability to be at least good lawyers. Some people in all demographic groups may need training to develop the skills to be good lawyers but they have the natural ability; but many people across our society don't have the natural ability and/or skill set to be good lawyers and America's society should not let them become lawyers and I believe this change will bring this outstandingly bad result of people that don't have the ability to do the job becoming lawyers. Lawyers can have huge impacts on people's lives, people that work as lawyers have to be at least competent lawyers; the American people and leaders in our country should not allow this "drop the LSAT requirement" for our nation's law schools to go through because ultimately lots of ordinary Americans will continually pay for this mistake with harm to their lives at the hands of their not capable lawyers!
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