DOBBS V. JACKSON for Dummies (Part 3 of 5 : "Rights")

Play it safe.

A brief review -- 

Part 1. Conscience is annoying. 

Jiminy Cricket represented that part of an incomplete persona, the part that relentlessly tweaks our moral compass. He irritates our inchoate spirits, urging us, never stopping until that moment you take a chance, opening your heart to being "real."

Conscience is self-knowledge. With it, you objectify yourself, and you recognize the possibility that, "Hey, maybe I can expend some energy thinking a thought, maybe two, maybe more - discerning whether certain propositions, certain thoughts, words, and actions are inherently right - or wrong."

Part 2. Culture, on the other hand, is one of the primary exogenous forces that shapes the thoughts, feelings, and to be sure, significant opinions affecting humanity. It lends credence to the rules under which we choose to live.  

To minimize the impact of art, music, literature, architecture, animation, language, sports, etc., on human experience, will lead inevitably to crass forms of mechanistic materialism. Without the reflectiveness and introspection that culture imposes on human relations, society gets stranded in a brutish, ugly, milieu, where Truth and Beauty are nullified. Without the synergy of human culture, your existence is limited to self-defense and the cinders that remain after your life is consumed. Culture transmits human essence, thereby counteracting loneliness -- and insanity.

"Complaints of violins become my only friends."

                                        --- Anberlin, "Paperthin Hymn"

***

DOBBS FOR DUMMIES: PART 3

The period of time between 1973 and 2022, during which Roe v. Wade was "deemed" valid constitutional law, is a classic "Lesson of the Past." Yet, saying so in 2023 seems so mundane. Routinely, we read that famous George Santayana meme/quote extolling the "lessons" which must be learned so as to avoid recurrence, so as to avoid repeating those many epic human failures, 

These historical failures always come after a period of hubris. That once profound and conscientious quote ("We must learn the lessons of History!") is, in the Internet Age, reduced to a bland platitude on Reddit message boards, shit posts by Twitter trolls or LinkedIn comments. 

And obscure lawyers' blogs.

That once thoughtful admonition, a great philosophical precept, has fallen victim to the Mandela Effect, and either we have forgotten what it means, or we no longer have the courage to explore what it really, truly means. We may express the platitude, but hell no, I ain't listening to some stupid "Boomer."

Don't you agree? 

Santayana's famous maxim is often quoted on the internet, but rarely applied in educational discourse, less so in political commentary, whose primary aims are mobilization and provocation, not persuasion from thoughtful historical perspectives. Which leads to my point:

What "lessons of the past" are part of the abortion rights debate?

I have some bad news for you.

The literal Latin for "religion" (re: "back" -- ligere: "to link") is about . . . .

THE LESSONS OF THE PAST!

Thus, to "link back" is to revisit those precious lessons.

"Whatever means possible."

                    -- Malcom X

Living in the U.S.A., it is easy to take "Rights" for granted.

Because I do not want to wander in the weeds of highly technical jurisprudence, let me try to put this thought in the most reductionist terms to start this discussion of abortion "rights."

In Part One, I emphasized THE NAME OF THE GAME IS TO EXPLAIN. So this is the simplest way I can explain the Dobbs case, which tackles the legal question of whether a "right to abortion" exists under the Constitution of the United States of America.

In American law, as I have grown to understand it, almost every legal relationship between parties, and the eventual formal resolution of their rights as to each other, can be analyzed in two-fundamental steps. Call it the "Legal Rights 2-Step." It is a dance as old as the first human dispute over dinosaur bone leftovers.

First, ask yourself who are the parties, and what are the facts regarding their actual interaction? Formal written agreement? Informal understanding? Customary past practices? For example: Spouses.  Mothers and Fathers. Siiters and Brothers. Aunts and Uncles. Landlords and Tenants? Employers and Employees? Citizens and States? Masters and Slaves? OK, some relationships are harder to define and account for than others. You get it. The nature of the relationship will define (and limit) the nature of the so-called "right."

Second, you must identify with as much specificity as possible, each parties "rights" AND DUTIES. This is the catch. To be validly enforceable, every legal right whether created, or inherent, requires a corresponding duty, or else that right is vitiated. 

The bilateral requirement between rights and duties is what propels the Law toward Justice. Rights and duties, together, are the elements supporting moral authority and encouraging societal acceptance of particular judicial decisions. 

Claimants always assert that a certain "right" exists, and has been violated, however, there is often little or no acknowledgement that the legitimacy of said right rests upon a corresponding duty. That failure to recognize, identify, and accept the "duty," or the "responsibility," which validates a claim of right is the reason those claims so often fail. Ultimately, I suspect the discussion of those required "duties" explains why the Court ruled that no "right" to abortion can be found in the Constitution. 

Proper Balance

 

An elementary legal principle becomes controversial and disputable in the context of abortion because the single most distinguishing fact is that another human life hangs in the balance. 

 

That is the life of the child.

 

It's probably best that I just shut up for now. A good nutshell version should leave you wanting to explore more, anyway.

 

Know this -- the single most irrational response in abortion rights conversation is to say that if you concur with the Dobbs holding, you are somehow "anti-woman." I happen to LOVE women. Ask anyone who has successfully fulfilled the role of  husband and/or father over multiple decades whether conjugal "rights" with his/her spouse requires any corresponding "duties."

 

Simply put, any discussion of "rights" means -- it works both ways. 

 

That is what we call "right."

***

 

Finally, we should examine, in a nutshell, the methodology employed by the Court to reach this conclusion, i.e., that there is no constitutional "right" to abort a child. I'm among those lawyers somewhat terrified at the prospect of having to defend my home from left-wing loonies storming my neighborhood, simply because I happen to study law, and hold deep respect our written Constitution.

 

So it's like this, like it or not, quick and dirty. Here is why there is NO Federal "right" to abortion:

1. THE ISSUE PRESENTED: 

 

    Whether all pre-viability prohibitions on elective abortions are constitutional or not?

    Holding:  Pre-viability prohibition of abortion is constitutional.

2. CASE LAW - SOURCES:

    Any ruling for or against the existence of an abortion right in the constitution must be based on     an examination of the reasoning and analysis used in Roe v. Wade (1973) and Casey v. Planned     Parenthood (1992).

3. ABORTION RIGHT - SOURCES

 

   All constitutional rights must necessarily derive from: 

    A. The actual language of the Constitution - abortion clearly does not.

 

    B. The fundamental interest in Liberty, substantiated by due process rights inferred from the               14th Amendment and the 1st through 8th Amendments - determined by the Glucksberg and Palko tests.

 

    C. Glucksberg: is the right "deeply rooted" in the history and traditions of the law?

 

    D. Palko: is the right implicit in the concept of "ordered Liberty?"

 4. THE LESSONS OF HISTORY - Application of the Glucksberg and Palko tests

 

    I read these tests to be intertwined, not severable components, but each is useful to define the other. In other words, the lessons of history, clearly examined, help answer the question of whether abortion is a "fundamental" constitutional right. 

 

    The presumption is that "ordered Liberty" is a desirable aim.

 

    If you are an anarchist, then, obviously, the history and traditions of the law implicit in the concept of ordered Liberty, are irrelevant to YOUR believe in the existence or non-existence of legal rights.  To ignore the lessons of history, pretty much renders social experience and the pursuit of Reason in human discourse as intrusions into your little hermeneutic shell. Duty be damned.

 

    As far as their appication, Justice Alito gives a truly intellectually fascinating examination of the law of "quickening," which was the historical legal occurence before the term "viability" came into common parlance.  In general, and overwhelmingly so, it was always a crime to kill a baby, whose life and "personhood" was all the more recognized with its "quickening" in the womb.  All you Moms and Dads who have ever felt a baby's kick know the "quickening."

 

    Regartding the history and traditions of the law, the Court's opinion is that the Roe and Casey rulings, upon which the abortion right has rested, made no serious effort to apply the lessons of history. 

 

    The fundamental flaw of Roe is that it completely disregards hundreds of years of legal history, and conjures up a legal right that had previously been seen a crime. This error would have been made even outside the bounds of American jurisprudence, as historically, nearly all legal regimes found abortion to be a crime.

 

    Casey made even less effort to examine the roots of abortion law, and even undermined the attempts made in Roe to judicially legislate the boundaries of permissible abortion.  It was admittedly a missed opportunity to overrule Roe in 1992, and in the Court's view, is now recitfied with Dobbs.

 

    Thus, after a serious, tedious, application of the lessons of history, through the tests established in prior cases (Glucksberg and Palko), the only conclusion the court could reasonably find was this: 

 

CONCLUSION: THE CONSTITUTIONAL RIGHT TO ABORTION IS NOT DEEPLY ROOTED IN THE HISTORY AND TRADITIONS OF THE LAW, AND IT IS NOT IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY.

    

OK, time for a musical interlude.

 

Hit "PLAY" and see you next time.