JimofPennsylvan
Platinum Member
- Jun 6, 2007
- 878
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In the abortion case before the Supreme Court, Dobbs v. Jackson Women's Health Organization, the media has the American people completely wound up the way they are painting the situation as a foregone conclusion that the Supreme Court this summer will definitely take away a women's constitutional right to an abortion that has existed in America since 1973. Sure the media has a good basis for reporting this outcome, the leaked draft opinion by Justice Samuel Alito on this case rules this way. But such an outcome will cause dramatic upheaval across the country as many states have or will pass laws outlawing abortion during any period of a women's pregnancy and such laws will take effect leaving many girls and women with a crisis pregnancy and no options to get out of their situation; the Supreme Court has a long tradition of considering the practical implications of its rulings and seeking to reduce harm from them which could move the Court to reconsider its leaked holding to some degree.
The way the media paints this issue the Supreme Court has two options uphold the legal holding of Roe v. Wade which created this constitutional right to an abortion or overturn it voiding this right. Well there is a third option which is to follow the legal framework that the Supreme Court set forth in the Casey case issued in 1992, that is Planned Parenthood of Southeastern Pennsylvania v. Robert Casey, which in their opinion stated that the Roe case stood for the proposition that a women has a constitutional right to an abortion during "the early stages" of her pregnancy not necessarily up to the point of viability which is believed to be the state of the law in America today. (page 844) In the lead opinion for the Casey case written by Justice O'Connor, Justice Kennedy and Justice Souter, all no longer on the court, these Justices did a couple of remarkable things. First, they tried to have the Supreme Court address the division within the nation over the abortion question specifically the concern that during a women's pregnancy the fetus becomes a baby, a human person, entitled to protection against being killed by the act of the abortion. They did this by limiting the right to an abortion to the "early stages" of a women's pregnancy; they did not define what "early stages" meant but they let it be known that the time period up to the point of viability is not the Supreme Courts final ruling on the issue! The Casey court never defined what early stages means because the issues before the Court did not require that determination, the Casey case wasn't a "direct restriction on abortion by the state" case, the Pennsylvania law at issue was focused on the pregnant women's decision making process she had to be fully informed about the meaning of her abortion decision and her options to avoid an abortion and there was a mandatory twenty-hour reflection period before actually going through with the abortion, things like that. So the current Supreme Court has this option to follow through on the Casey court outline, to give more clarity to what the phrase "early stages" of a pregnancy means, and in the process give more consideration to what many Americans believe which is that a baby, a human being comes into existence during this pregnancy. The second remarkable thing that the Casey court did is that it addressed its opinion directly to state legislatures across the nation and told them the purpose of their opinion was to guide state legislatures on how to shape their abortion legislation to survive Constitutional scrutiny, to make needed legislation for the nation to protect babies in women's wombs but account for the early stages of a women's pregnancy when a baby does not exist thereby safeguarding a women's right of privacy and the stemming right to have control over her own body. (page 845) The Casey court really offered the nation a peace plan on this overall subject, a path different from the one the nation seems so fully invested in where either one side or the other in this abortion debate gets their will with their will being completely intolerable to the other side!
There is another looming issue with this Dobbs case and the consequences are a thousand times worse than the worst possible outcome in this abortion case. It is looming because of the leaked Justice Alito opinion which decides this abortion case by saying that the Roe case was completely in error in its legal decision; the Justice Alito opinion says unequivocally that the U.S. Constitution does not provide a women in America any right to an abortion. It completely overturns a forty-nine year old legal precedent in America, a precedent involving a constitutional right of privacy for women that gave women power over their own bodies, a right that women over this time period on fifty million plus occasions have exercised thereby saving them from dramatic life altering changes that result from giving birth to a child. The broader legal implications of this case beyond the topic of abortion in America is that this Justice Alito opinion will destroy the Doctrine of Stare Decisis in America which acts as a guarantor of relative stability in America's legal system. Practically what the Doctrine of Stare Decisis does is it restricts subsequent courts ability to reopen legal issues settled by previous courts the subsequent court with very limited exceptions must accept the prior courts legal holding which gives the nation the benefit of having much of its law being "settled law" therefore people, businesses and other entities in America can rely on these principles of law and optimally move their life forward adding productivity and peace to their lives.
The Latin root translation of the words Stare Decisis means let the decision stand and that is what the Doctrine stands for which is when a court makes a decision on a legal issue that court in later cases is bound by that prior decision, there is exceptions but certainly not for a legal principle of such enormous magnitude as what is at issue here involving a constitutional right for women that gives them control over their own bodies, that applies to the one hundred and fifty million plus women in America and one these women have considered a guaranteed right for forty-nine years. When discussing the topic of the Doctrine of Stare Decisis it begs the question what then is the nation permanently stuck with every law or ruling the Supreme Court creates, the Supreme Court is made up of human beings who aren't perfect what if they issue a bad legal decision? The Country isn't stuck remember the Supreme Court's role in America is to interpret the law, it is Congress' role to make the law; if the Supreme Court makes an error in creating law the Congress always has the option to pass a bill correcting that Supreme Court legal decision or if it is a matter of a constitutional question commence the process to amend the Constitution by passing a Constitutional amendment which will then go to the states for ratification.
Destroying this Doctrine will subject all America's Constitutional and Federal law to being changed by future Supreme Courts. The standard going forward will be whatever the viewpoint of the current Justices on the Supreme Court on any legal issue will control in the formulation of Supreme Court decisions, the mountain size restraint on changing Supreme Court law that the Supreme Court has been subject to for two hundred plus years in America will become non-existent! Well Justice Alito and his four allied Justices and their many allies in leadership roles across America will probably say that this is not the case they will say something like this Roe case was such an error of law that Justice Alito and his other concurring Justices had to make the correction. That doesn't work, that doesn't even have a chance of working, a group of Justices don't get to make their own rules for a specific case no matter how compelling the reasons they see for it. If Justice Alito and his four allied Justices get to make their own rules for this Dobbs case, five Justices on the Supreme Court in a later case can make their own rules where they think there is a compelling need. If this Justice Alito opinion becomes the decided opinion in the Dobbs case what America will be left with afterwards is a Supreme Court where Justices are free to substitute their views for the views of Justices in prior Supreme Court cases. This destruction of the "settled law" Doctrine in America's legal system when one considers the incredibly important legal decisions that the Supreme Court has issued in its history and that now these legal issues will be subject to be opened up and overturned, the harm to America from this change will likely be devastating and permanent!
The circumstances surrounding this whole entire abortion issue support narrowing the scope of this constitutional right to an abortion first set forth in the Roe v. Wade case. The legal analysis in the Roe case was partly strong and partly weak and the weak part was rather disturbingly weak. The legal analysis started off very solidly the Roe court looked at the Due Process Clause of the Fourteenth Amendment and found that a substantive due process right associated with the Liberty term in this clause was applicable to the case and specifically the right to privacy which traces its root in Supreme Court Jurisprudence to this liberty term and because the facts involved in an abortion case involve a fetus in a women's womb one of her bodily organs it was fair to conclude this issue involved bodily integrity of a women clearly a private matter for a women. But after the Roe Court found this constitutional right to an abortion in the court's jurisprudence stemming from the Fourteenth amendment then its legal analysis gets weak. The question which the Roe Court should have logically addressed is when or if this fetus which is part of a women's uterus, her organ, because it is implanted in the uterus as part of the gestation process ever stops being part of this women's organ because eventually the pregnancy ends with the pregnant women giving birth to another human being. So simply one obvious legal question is does the fetus ever deserve the legal status of a person entitled to his or her own rights? Not surprisingly in the Roe case which was a constitutional challenge to the Texas anti-abortion law existing in 1973, the lawyer for the state of Texas argued to the Court that it was Texas contention that a person came into existence at the moment of conception and existed throughout the entire pregnancy. The following is a fair description of the Roe court's response to this contention by the state of Texas.
The Roe court basically said that the "person" issue is not that important because the definition of "person" in the Fourteenth Amendment, the Amendment that recognizes that a person has a right to life, does not include "prenatal" persons, that is, persons in a pregnant women's womb. The Roe court's justification for this was that in the many places in the Constitution and the Bill of Rights where the term person is used it is always in a context that applies to postnatal persons; further, that in the nineteenth century when the Congress passed the Fourteenth amendment abortions were commonplace although not officially sanctioned by the government so the reasoning being that the 1866 Congress could not have intended the amendment to apply to life in pregnant women's wombs because that life was being terminated en masse at the time by commonplace abortions. It is not fair for the Roe Court to make such inferences; in 1866 medical science was in the stone ages there didn't exist sonograms and there wasn't extensive medical treatments for premature born babies to facilitate them surviving, etc. If the 1866 Congress was to delve into the issue of prenatal life and distinguish it from just a growing fertilized egg in a women's womb which would of course have no legal rights the Congress would be hard pressed to allow abortion to be outlawed in many areas across America in these early stages of a pregnancy under the principle of fundamental liberty for pregnant women. The better inference is that the 1886 Congress took no position on the issue of the existence of prenatal life because it would not want to lend any official state sanction to abortion because in 1866 having an abortion was a high risk of death endeavor for women; remember this time period was before the advent of antibiotics, transfusions , and dilation and curettage procedures; at that time women having an abortion were at a high risk of bleeding to death or getting an infection and dying from sepsis! Good statutory interpretation calls for the construction that if the statute didn't narrow the definition of person in the 14th amendment than it shouldn't be limited by the court; the Fourteenth Amendment should be found to apply to prenatal and postnatal persons.
On the specific issue of when exactly does a person come into existence in a women's womb during pregnancy this was the Roe Court's response. "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." (page 159) In short, the Roe Court's decision was just to avoid this issue because it was too controversial! Well just because the Supreme Court chooses not to address an issue doesn't mean that answer to that issue doesn't have important relevance to resolving one or more other necessary issues of the case. Which it definitely does in an abortion case because in deciding how a state can interfere with a women's fundamental right to an abortion it would make a big difference if the state in its actions was protecting another person's right to life. The Roe court avoiding resolving this critical issue makes its holding, its legal analysis of the permissible scope of states action in regulating abortion, to a large degree suspect and illegitimate. It is clear that this critical second person issue was ignored in the Roe case which makes the case's analysis manipulated and thereby illegitimate because Justice Blackmun who wrote the majority opinion in the Roe v. Wade case in the later Supreme Court Case of Casey in his concurrence opinion clearly acknowledged in the Roe case the Supreme Court considered a person not to exist in a women's womb at any time throughout a women's pregnancy, that is, a person entitled to fundamental civil rights like the right to life! (page 932)
Focusing on the Casey case and how that case provides authority for states being permitted to conclude that a person exist in a women's womb prior to birth will allow the Supreme Court to find these state laws prohibiting abortion prior to viability like this Mississippi law (after fifteen weeks) in this Dobbs case constitutional. Compared to the Roe case the Casey case changed the language on how the law describes the fetus. In the Roe case the fetus throughout the women's pregnancy is called things like the potentiality of human life and this is even after the point of viability during the pregnancy; however, in the Casey case the fetus is regularly referred to with the phrase, fetal life there is no limiting word such as potential. (page 860) This should draw one to conclude that the Casey court had a reason for different language and the reasonable conclusion is that they believed the fetus once it reached the fetal life stage then became a person, a separate person separate from the person of the mother. The Casey court refers to the fetus at a point during the pregnancy as unborn life. (page 869) The Casey court referencing the ramifications of the point of viability wrote "that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman."(page 870) If one takes one section out of the Casey courts opinion involving its analysis on why it rejects the Roe cases holding on the trimester framework for evaluating state regulations of abortion it seems to say that prior to point of viability there is a period where the fetus is in a potential life state and a fetal life state, the latter being a state where a person exist that being a second person. The Casey court states" The trimester framework, however, does not fulfill Roe's own promise that the State has an interest in protecting fetal life or potential life." (page 876) The only way this sentence makes sense if one concludes that the Casey court believes that fetal life exists during the second trimester prior to viability. Because the essence of the trimester framework is that throughout the third trimester which commences upon the point of viability the state can prohibit an abortion as long as there is exceptions for the life and health of the mother which means the trimester framework is protecting the State's interest in fetal life; the only way one can conclude the framework isn't protecting such interest if one concludes that fetal life exists before the third trimester.
Noteworthy, the Casey case defines its own holding as standing for the proposition that the State has an interest in protecting the life of the unborn (contrary to the decisions in the Roe case which did not recognize unborn life). (page 873) Further in the Casey decision, the court references two types of holdings in the Roe case the "essential" holding which the court seems to say is that a women has a constitutional right to an abortion in the early stages of her pregnancy and the "central" holding of the Roe case which the court seems to say is that a women has a constitutional right to an abortion prior to the point of viability in her pregnancy. The Casey court raises all these scenarios where the "central" holding of Roe could be error but it does not seem to make that targeted assault on the "essential" holding of Roe; this deliberation by the Casey court should raise the question whether it believed the U.S. Constitution actually goes that far and guarantees for a women the right to an abortion all the way up to point of viability.
The current Supreme Court could use this Casey framework to find the Mississippi abortion law constitutional saying the Casey opinion supports a holding that fetal life, a second person can exist prior to viability and it will defer to the states for determining that point as long as their determination is not unreasonable. So if in the Mississippi law the state of Mississippi is saying that a person comes into existence at "fifteen weeks" that is a state's right to make that determination so the Mississippi law is constitutional. The next question that would need to be answered is when would a state's determination that a person comes into existence during a pregnancy be unreasonable. One way the court could address the issue is to say when does a person that we definitely know exist stop being in existence, that is die; well the medical doctor profession in their practice follow the standard that if a person is permanently brain dead that person has died. Legally a person is found to be dead when itis recorded that person's heart has permanently stopped beating. So the court could just reverse those standards and say that for a state to designate a point in a women's pregnancy that a person exist the fetus has to have brain function and a heart beat that is a heart organ with four chambers that pumps blood, beating; both functions are commonly believed to begin at around the sixth to seventh week of a women's pregnancy. So the Supreme Court could permit states to ban abortions commencing at a women's sixth week of pregnancy.
One associate issue the Supreme Court would have to address if it chose the Casey Court framework to resolve this case. The Supreme Court would now be recognizing that a human life, a person comes into existence at the point of viability, a person entitled to the same rights that the three hundred and fifty million people currently residing in America enjoy. Now the Casey court also recognized that this point of viability is not a permanently fixed point during a women's pregnancy it is a point that is moving earlier and earlier with the progress of medical science. At the time the Casey case was decided the point of viability was twenty-four weeks let us say the current Supreme Court adopts the Casey framework in their decision and ten years down the road medical science advances the point of viability to twenty weeks. Pursuant to media reports and an accurate gage of where America stands politically some states will have abortion laws allowing for abortions up to twenty-four weeks in compliance with current Supreme Court law, now when viability progresses to twenty weeks some of these states with maybe Fathers of the fetuses of women who are pregnant that want to have an abortion where the Father is not in agreement or just pro-life individuals or groups could bring lawsuits calling for the respective state law to be found unconstitutional because it is killing actual persons. Their legal theory being that at viability a fetus becomes a person who has the right to life and with the advance of science the point of viability is twenty weeks and so a person exist at twenty weeks and the state law allows for the abortion or killing of that person for another four week period up to a twenty-four week period. One way the Supreme Court could resolve this is to freeze the viability standard for determining when a person comes into existence that is as recognized as having that own person's constitutional rights, own Fourteenth Amendment rights, at the Casey decision's standard of twenty-four weeks. Announce in its opinion that movement in the viability point to earlier time frames is no longer dispositive on when a person comes into existence, it could add medical science facts to bolster its findings, in part, it could cite that the human brain stem isn't fully grown until after the end of the second trimester (twenty-four weeks) one is hard pressed to say definitively that a human person exist that if the entity is still growing a human brain stem for the indicia of human life in so far as human brain function would clearly be in question.
The Supreme Court has a history of changing its law with how facts in the country change. When the Roe case was heard in 1973, America had a problem with pregnant women and girls getting what were colloquially called "back street alley" abortions, abortions often done by non-medical professionals whose actions were an affront to good medical care and self-induced abortions resulting in many women having to go to a hospital's emergency department because of health complication with many women dying and many having their ability to bear children in the future severely damaged. In the Roe case, the court wrote, "This holding, we feel, is consistent with ------------- the demands of the profound problems of the present day." (page 165) It is fair to say that solving this major health problem with so many women getting hurt because abortion was illegal was probably one of these major problems the Supreme Court was referring to here! At the time of the Roe case there wasn't a lot of late term abortions even in the states that had legalized abortions the latest it was permitted to occur was 24 weeks and the only later exception was for the life of the Mother. After the Roe case came down late term abortions were not only permitted to save the life of the pregnant women but also the health of the pregnant women and the medical community has not interpreted that to mean to save a pregnant women from long-term serious health problems but even emotional health problems suffice to meet this threshold for having an abortion. The state of the situation today is not only that there is a lot of late term abortions going on but also many Americans believe that babies, human persons, are being aborted in large numbers under American's abortion laws. Of course, this public viewpoint has been brought about by the advocacy efforts of the anti-abortion movement in America and their persuasive use of images and videos of the gestation period during a women's pregnancy. Nevertheless, it has raised large scale public concerns about whether America is being moral in its abortion laws; Is America killing human beings under its current legal framework for abortion?
The way the media paints this issue the Supreme Court has two options uphold the legal holding of Roe v. Wade which created this constitutional right to an abortion or overturn it voiding this right. Well there is a third option which is to follow the legal framework that the Supreme Court set forth in the Casey case issued in 1992, that is Planned Parenthood of Southeastern Pennsylvania v. Robert Casey, which in their opinion stated that the Roe case stood for the proposition that a women has a constitutional right to an abortion during "the early stages" of her pregnancy not necessarily up to the point of viability which is believed to be the state of the law in America today. (page 844) In the lead opinion for the Casey case written by Justice O'Connor, Justice Kennedy and Justice Souter, all no longer on the court, these Justices did a couple of remarkable things. First, they tried to have the Supreme Court address the division within the nation over the abortion question specifically the concern that during a women's pregnancy the fetus becomes a baby, a human person, entitled to protection against being killed by the act of the abortion. They did this by limiting the right to an abortion to the "early stages" of a women's pregnancy; they did not define what "early stages" meant but they let it be known that the time period up to the point of viability is not the Supreme Courts final ruling on the issue! The Casey court never defined what early stages means because the issues before the Court did not require that determination, the Casey case wasn't a "direct restriction on abortion by the state" case, the Pennsylvania law at issue was focused on the pregnant women's decision making process she had to be fully informed about the meaning of her abortion decision and her options to avoid an abortion and there was a mandatory twenty-hour reflection period before actually going through with the abortion, things like that. So the current Supreme Court has this option to follow through on the Casey court outline, to give more clarity to what the phrase "early stages" of a pregnancy means, and in the process give more consideration to what many Americans believe which is that a baby, a human being comes into existence during this pregnancy. The second remarkable thing that the Casey court did is that it addressed its opinion directly to state legislatures across the nation and told them the purpose of their opinion was to guide state legislatures on how to shape their abortion legislation to survive Constitutional scrutiny, to make needed legislation for the nation to protect babies in women's wombs but account for the early stages of a women's pregnancy when a baby does not exist thereby safeguarding a women's right of privacy and the stemming right to have control over her own body. (page 845) The Casey court really offered the nation a peace plan on this overall subject, a path different from the one the nation seems so fully invested in where either one side or the other in this abortion debate gets their will with their will being completely intolerable to the other side!
There is another looming issue with this Dobbs case and the consequences are a thousand times worse than the worst possible outcome in this abortion case. It is looming because of the leaked Justice Alito opinion which decides this abortion case by saying that the Roe case was completely in error in its legal decision; the Justice Alito opinion says unequivocally that the U.S. Constitution does not provide a women in America any right to an abortion. It completely overturns a forty-nine year old legal precedent in America, a precedent involving a constitutional right of privacy for women that gave women power over their own bodies, a right that women over this time period on fifty million plus occasions have exercised thereby saving them from dramatic life altering changes that result from giving birth to a child. The broader legal implications of this case beyond the topic of abortion in America is that this Justice Alito opinion will destroy the Doctrine of Stare Decisis in America which acts as a guarantor of relative stability in America's legal system. Practically what the Doctrine of Stare Decisis does is it restricts subsequent courts ability to reopen legal issues settled by previous courts the subsequent court with very limited exceptions must accept the prior courts legal holding which gives the nation the benefit of having much of its law being "settled law" therefore people, businesses and other entities in America can rely on these principles of law and optimally move their life forward adding productivity and peace to their lives.
The Latin root translation of the words Stare Decisis means let the decision stand and that is what the Doctrine stands for which is when a court makes a decision on a legal issue that court in later cases is bound by that prior decision, there is exceptions but certainly not for a legal principle of such enormous magnitude as what is at issue here involving a constitutional right for women that gives them control over their own bodies, that applies to the one hundred and fifty million plus women in America and one these women have considered a guaranteed right for forty-nine years. When discussing the topic of the Doctrine of Stare Decisis it begs the question what then is the nation permanently stuck with every law or ruling the Supreme Court creates, the Supreme Court is made up of human beings who aren't perfect what if they issue a bad legal decision? The Country isn't stuck remember the Supreme Court's role in America is to interpret the law, it is Congress' role to make the law; if the Supreme Court makes an error in creating law the Congress always has the option to pass a bill correcting that Supreme Court legal decision or if it is a matter of a constitutional question commence the process to amend the Constitution by passing a Constitutional amendment which will then go to the states for ratification.
Destroying this Doctrine will subject all America's Constitutional and Federal law to being changed by future Supreme Courts. The standard going forward will be whatever the viewpoint of the current Justices on the Supreme Court on any legal issue will control in the formulation of Supreme Court decisions, the mountain size restraint on changing Supreme Court law that the Supreme Court has been subject to for two hundred plus years in America will become non-existent! Well Justice Alito and his four allied Justices and their many allies in leadership roles across America will probably say that this is not the case they will say something like this Roe case was such an error of law that Justice Alito and his other concurring Justices had to make the correction. That doesn't work, that doesn't even have a chance of working, a group of Justices don't get to make their own rules for a specific case no matter how compelling the reasons they see for it. If Justice Alito and his four allied Justices get to make their own rules for this Dobbs case, five Justices on the Supreme Court in a later case can make their own rules where they think there is a compelling need. If this Justice Alito opinion becomes the decided opinion in the Dobbs case what America will be left with afterwards is a Supreme Court where Justices are free to substitute their views for the views of Justices in prior Supreme Court cases. This destruction of the "settled law" Doctrine in America's legal system when one considers the incredibly important legal decisions that the Supreme Court has issued in its history and that now these legal issues will be subject to be opened up and overturned, the harm to America from this change will likely be devastating and permanent!
The circumstances surrounding this whole entire abortion issue support narrowing the scope of this constitutional right to an abortion first set forth in the Roe v. Wade case. The legal analysis in the Roe case was partly strong and partly weak and the weak part was rather disturbingly weak. The legal analysis started off very solidly the Roe court looked at the Due Process Clause of the Fourteenth Amendment and found that a substantive due process right associated with the Liberty term in this clause was applicable to the case and specifically the right to privacy which traces its root in Supreme Court Jurisprudence to this liberty term and because the facts involved in an abortion case involve a fetus in a women's womb one of her bodily organs it was fair to conclude this issue involved bodily integrity of a women clearly a private matter for a women. But after the Roe Court found this constitutional right to an abortion in the court's jurisprudence stemming from the Fourteenth amendment then its legal analysis gets weak. The question which the Roe Court should have logically addressed is when or if this fetus which is part of a women's uterus, her organ, because it is implanted in the uterus as part of the gestation process ever stops being part of this women's organ because eventually the pregnancy ends with the pregnant women giving birth to another human being. So simply one obvious legal question is does the fetus ever deserve the legal status of a person entitled to his or her own rights? Not surprisingly in the Roe case which was a constitutional challenge to the Texas anti-abortion law existing in 1973, the lawyer for the state of Texas argued to the Court that it was Texas contention that a person came into existence at the moment of conception and existed throughout the entire pregnancy. The following is a fair description of the Roe court's response to this contention by the state of Texas.
The Roe court basically said that the "person" issue is not that important because the definition of "person" in the Fourteenth Amendment, the Amendment that recognizes that a person has a right to life, does not include "prenatal" persons, that is, persons in a pregnant women's womb. The Roe court's justification for this was that in the many places in the Constitution and the Bill of Rights where the term person is used it is always in a context that applies to postnatal persons; further, that in the nineteenth century when the Congress passed the Fourteenth amendment abortions were commonplace although not officially sanctioned by the government so the reasoning being that the 1866 Congress could not have intended the amendment to apply to life in pregnant women's wombs because that life was being terminated en masse at the time by commonplace abortions. It is not fair for the Roe Court to make such inferences; in 1866 medical science was in the stone ages there didn't exist sonograms and there wasn't extensive medical treatments for premature born babies to facilitate them surviving, etc. If the 1866 Congress was to delve into the issue of prenatal life and distinguish it from just a growing fertilized egg in a women's womb which would of course have no legal rights the Congress would be hard pressed to allow abortion to be outlawed in many areas across America in these early stages of a pregnancy under the principle of fundamental liberty for pregnant women. The better inference is that the 1886 Congress took no position on the issue of the existence of prenatal life because it would not want to lend any official state sanction to abortion because in 1866 having an abortion was a high risk of death endeavor for women; remember this time period was before the advent of antibiotics, transfusions , and dilation and curettage procedures; at that time women having an abortion were at a high risk of bleeding to death or getting an infection and dying from sepsis! Good statutory interpretation calls for the construction that if the statute didn't narrow the definition of person in the 14th amendment than it shouldn't be limited by the court; the Fourteenth Amendment should be found to apply to prenatal and postnatal persons.
On the specific issue of when exactly does a person come into existence in a women's womb during pregnancy this was the Roe Court's response. "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." (page 159) In short, the Roe Court's decision was just to avoid this issue because it was too controversial! Well just because the Supreme Court chooses not to address an issue doesn't mean that answer to that issue doesn't have important relevance to resolving one or more other necessary issues of the case. Which it definitely does in an abortion case because in deciding how a state can interfere with a women's fundamental right to an abortion it would make a big difference if the state in its actions was protecting another person's right to life. The Roe court avoiding resolving this critical issue makes its holding, its legal analysis of the permissible scope of states action in regulating abortion, to a large degree suspect and illegitimate. It is clear that this critical second person issue was ignored in the Roe case which makes the case's analysis manipulated and thereby illegitimate because Justice Blackmun who wrote the majority opinion in the Roe v. Wade case in the later Supreme Court Case of Casey in his concurrence opinion clearly acknowledged in the Roe case the Supreme Court considered a person not to exist in a women's womb at any time throughout a women's pregnancy, that is, a person entitled to fundamental civil rights like the right to life! (page 932)
Focusing on the Casey case and how that case provides authority for states being permitted to conclude that a person exist in a women's womb prior to birth will allow the Supreme Court to find these state laws prohibiting abortion prior to viability like this Mississippi law (after fifteen weeks) in this Dobbs case constitutional. Compared to the Roe case the Casey case changed the language on how the law describes the fetus. In the Roe case the fetus throughout the women's pregnancy is called things like the potentiality of human life and this is even after the point of viability during the pregnancy; however, in the Casey case the fetus is regularly referred to with the phrase, fetal life there is no limiting word such as potential. (page 860) This should draw one to conclude that the Casey court had a reason for different language and the reasonable conclusion is that they believed the fetus once it reached the fetal life stage then became a person, a separate person separate from the person of the mother. The Casey court refers to the fetus at a point during the pregnancy as unborn life. (page 869) The Casey court referencing the ramifications of the point of viability wrote "that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman."(page 870) If one takes one section out of the Casey courts opinion involving its analysis on why it rejects the Roe cases holding on the trimester framework for evaluating state regulations of abortion it seems to say that prior to point of viability there is a period where the fetus is in a potential life state and a fetal life state, the latter being a state where a person exist that being a second person. The Casey court states" The trimester framework, however, does not fulfill Roe's own promise that the State has an interest in protecting fetal life or potential life." (page 876) The only way this sentence makes sense if one concludes that the Casey court believes that fetal life exists during the second trimester prior to viability. Because the essence of the trimester framework is that throughout the third trimester which commences upon the point of viability the state can prohibit an abortion as long as there is exceptions for the life and health of the mother which means the trimester framework is protecting the State's interest in fetal life; the only way one can conclude the framework isn't protecting such interest if one concludes that fetal life exists before the third trimester.
Noteworthy, the Casey case defines its own holding as standing for the proposition that the State has an interest in protecting the life of the unborn (contrary to the decisions in the Roe case which did not recognize unborn life). (page 873) Further in the Casey decision, the court references two types of holdings in the Roe case the "essential" holding which the court seems to say is that a women has a constitutional right to an abortion in the early stages of her pregnancy and the "central" holding of the Roe case which the court seems to say is that a women has a constitutional right to an abortion prior to the point of viability in her pregnancy. The Casey court raises all these scenarios where the "central" holding of Roe could be error but it does not seem to make that targeted assault on the "essential" holding of Roe; this deliberation by the Casey court should raise the question whether it believed the U.S. Constitution actually goes that far and guarantees for a women the right to an abortion all the way up to point of viability.
The current Supreme Court could use this Casey framework to find the Mississippi abortion law constitutional saying the Casey opinion supports a holding that fetal life, a second person can exist prior to viability and it will defer to the states for determining that point as long as their determination is not unreasonable. So if in the Mississippi law the state of Mississippi is saying that a person comes into existence at "fifteen weeks" that is a state's right to make that determination so the Mississippi law is constitutional. The next question that would need to be answered is when would a state's determination that a person comes into existence during a pregnancy be unreasonable. One way the court could address the issue is to say when does a person that we definitely know exist stop being in existence, that is die; well the medical doctor profession in their practice follow the standard that if a person is permanently brain dead that person has died. Legally a person is found to be dead when itis recorded that person's heart has permanently stopped beating. So the court could just reverse those standards and say that for a state to designate a point in a women's pregnancy that a person exist the fetus has to have brain function and a heart beat that is a heart organ with four chambers that pumps blood, beating; both functions are commonly believed to begin at around the sixth to seventh week of a women's pregnancy. So the Supreme Court could permit states to ban abortions commencing at a women's sixth week of pregnancy.
One associate issue the Supreme Court would have to address if it chose the Casey Court framework to resolve this case. The Supreme Court would now be recognizing that a human life, a person comes into existence at the point of viability, a person entitled to the same rights that the three hundred and fifty million people currently residing in America enjoy. Now the Casey court also recognized that this point of viability is not a permanently fixed point during a women's pregnancy it is a point that is moving earlier and earlier with the progress of medical science. At the time the Casey case was decided the point of viability was twenty-four weeks let us say the current Supreme Court adopts the Casey framework in their decision and ten years down the road medical science advances the point of viability to twenty weeks. Pursuant to media reports and an accurate gage of where America stands politically some states will have abortion laws allowing for abortions up to twenty-four weeks in compliance with current Supreme Court law, now when viability progresses to twenty weeks some of these states with maybe Fathers of the fetuses of women who are pregnant that want to have an abortion where the Father is not in agreement or just pro-life individuals or groups could bring lawsuits calling for the respective state law to be found unconstitutional because it is killing actual persons. Their legal theory being that at viability a fetus becomes a person who has the right to life and with the advance of science the point of viability is twenty weeks and so a person exist at twenty weeks and the state law allows for the abortion or killing of that person for another four week period up to a twenty-four week period. One way the Supreme Court could resolve this is to freeze the viability standard for determining when a person comes into existence that is as recognized as having that own person's constitutional rights, own Fourteenth Amendment rights, at the Casey decision's standard of twenty-four weeks. Announce in its opinion that movement in the viability point to earlier time frames is no longer dispositive on when a person comes into existence, it could add medical science facts to bolster its findings, in part, it could cite that the human brain stem isn't fully grown until after the end of the second trimester (twenty-four weeks) one is hard pressed to say definitively that a human person exist that if the entity is still growing a human brain stem for the indicia of human life in so far as human brain function would clearly be in question.
The Supreme Court has a history of changing its law with how facts in the country change. When the Roe case was heard in 1973, America had a problem with pregnant women and girls getting what were colloquially called "back street alley" abortions, abortions often done by non-medical professionals whose actions were an affront to good medical care and self-induced abortions resulting in many women having to go to a hospital's emergency department because of health complication with many women dying and many having their ability to bear children in the future severely damaged. In the Roe case, the court wrote, "This holding, we feel, is consistent with ------------- the demands of the profound problems of the present day." (page 165) It is fair to say that solving this major health problem with so many women getting hurt because abortion was illegal was probably one of these major problems the Supreme Court was referring to here! At the time of the Roe case there wasn't a lot of late term abortions even in the states that had legalized abortions the latest it was permitted to occur was 24 weeks and the only later exception was for the life of the Mother. After the Roe case came down late term abortions were not only permitted to save the life of the pregnant women but also the health of the pregnant women and the medical community has not interpreted that to mean to save a pregnant women from long-term serious health problems but even emotional health problems suffice to meet this threshold for having an abortion. The state of the situation today is not only that there is a lot of late term abortions going on but also many Americans believe that babies, human persons, are being aborted in large numbers under American's abortion laws. Of course, this public viewpoint has been brought about by the advocacy efforts of the anti-abortion movement in America and their persuasive use of images and videos of the gestation period during a women's pregnancy. Nevertheless, it has raised large scale public concerns about whether America is being moral in its abortion laws; Is America killing human beings under its current legal framework for abortion?
