Supreme Court

The Supreme Court is seen May 26 under threatening skies following a storm in Washington.

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The Supreme Court recently decided to hear the case of Dobbs v. Jackson Women’s Health Organization — a case, according to both pro-life and pro-choice advocates, that could lead directly to the repeal of the Roe v. Wade decision.

States with Republican-led state Legislatures and governors have been enacting laws to prohibit or to add more stringent restrictions regarding abortions in their states. And in some of these states, those laws would take effect immediately upon a repeal of the Roe decision. These states have been waiting for a test case to come before the court with an appropriate majority of conservative justices who are likely to do this. And now they have what they believe is such a case with a majority of justices in Dobbs.

This case is a constitutional challenge to a Mississippi law banning abortions after 15 weeks of pregnancy. This is the shortest period for an abortion in all these state laws. And in the so-called red states, conservative legislators and governors are still at work in passing laws with new ways to deal with abortion. For example, a Texas law leaves the enforcement of its recent enacted law banning abortions to private citizens by authorizing them to sue anyone helping a women to get an abortion and seek financial damages up to $10,000 per defendant.

Although it is likely that this case will not be heard and decided until later this year or the beginning of next year, the speculation of what the court may decide has already begun.

One of the fundamental constitutional problems with issues like abortion is that there is no mention of it in the constitution. Also prior to the Roe decision in 1973, there was a patchwork system in America by states, to deal with the abortion issue in contentious legal and political fights. Eventually the Republican Party adopted pro-life as an important part of its political platform. This galvanized Catholics to work with Protestants to advocate for pro-life laws. This added a religious and moral element of right and wrong to the issue. And the medical society became involved with its medical views on this issue.

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Congress was reluctant to deliberate over the issue and pass a law dealing with it. But the Supreme Court did become involved with its decision of Griswold v. Connecticut in 1965. In that case, the court struck down a Connecticut state law that made it a crime to give out information, advice and contraceptives to people. A majority of the court decided in that case that such a law violated an unwritten constitutional right of privacy that was broad enough to include a pregnant women’s right to decide about a pregnancy.

To cover this omission of the mention of abortion in the Constitution, a majority of the court said that there was a line of past court decisions that they thought recognized an unwritten right of personal privacy notwithstanding the fact that these cases did not involve abortion. This was in effect a personal right created by the court. According to the Roe decision, this right of privacy emanated from the fundamental rights stated in the First, Fourth, Fifth, Ninth and Fourteenth Amendments, as well the “penumbras” (the difficult to see outer edge of a shadow cast by an object) of unwritten rights of the Bill of Rights.

Such decisions as the sole Griswold case became a key precedent for this right. The court in effect created a constitutional repository of unwritten fundamental rights in the constitution yet to be discovered. The basis for those rights is apparently the court’s opinion that the fundamental rights specifically mentioned in all those amendments mentioned above have taken on added meanings for our time as an evolving society since the time of the 18th century when the Constitution was adopted.

The consequence of a repeal of the Roe case will be a return to the days when states could pick and choose by their laws whether to allow abortions or not. And such state laws dealing with this issue would be subject to review by the highest court in each state to decide whether their state Constitutions contain personal constitutional rights for women to have an abortion.

Or the court’s Chief Justice John Roberts, a self-described incrementalist, may get his wish by getting the court’s five other conservative members to agree to begin the process of in effect repealing the Roe case by adding gradual exceptions — in other words, to uphold Roe, but also to uphold the Mississippi law in the Dobbs case as a valid constitutional exception. A series of such exceptions to a law can effectively repeal it.

Robert “Frank” Jakubowicz is a regular Berkshire Eagle contributor. The opinions expressed by columnists do not necessarily reflect the views of the Brattleboro Reformer.