Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.

The Dobbs Decision and the Resumption of the State-By-State Abortion Debate

Below is my column in USA Today on the reversal of Roe v. Wade. When Dobbs was accepts, I wrote that for thirty years as a television and print legal analyst I have annually downplayed claims of commentators that a given case before the Court was a true threat to Roe. However, with Dobbs, I saw a true existential threat to the decision for the first time. It has now played out as expected with a historic 6-3 ruling to overturn the case.

Yet, some coverage has clearly misrepresented the opinion and falsely claimed that it makes abortion illegal in the United States. Others falsely claim that the justices wrote an opinion opposing abortion. The decision focuses on who must decide this question, not what should be decided. The issue of abortion will now return to the states where abortion is expected to remain legal for most women in the country. Roughly 13 states, however, are moving to end abortion and the decision obviously represents a major change in the rejection of a federal constitutional right to abortion services.

Here is the column:

With the release of the decision in Dobbs v. Jackson Women’s Health Organization, politicians and pundits went public with a parade of horribles – from the criminalization of contraceptives to the reversal of Brown v. Board of Education. In reality, the post-Roe world will look much like the Roe world for most citizens.

While this is a momentous decision, it is important to note what it does and does not do.

The decision itself was already largely known. It did not dramatically change since the leak of an earlier draft. The conservative majority held firm in declaring that Roe v. Wade was wrongly decided: “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

In the end, Chief Justice John Roberts cut a bit of a lonely figure in the mix of the court on the issue. His concurrence did not seriously question the majority view that Roe was not based on a good law. However, he would have stopped short of overturning the decision outright. It is the ultimate call of an incrementalist detached from the underlying constitutional interpretation.

The court now has a solid majority of justices who are more motivated by what they view as “first principles” than pragmatic concerns. From a court that has long used nuanced (and maddeningly vague) opinions to avoid major changes in constitutional doctrine, we now have clarity on this issue. It will return to the citizens of each state to decide.

The court anticipated the response to the opinion by those who “stoke unfounded fear that our decision will imperil … other rights.” The opinion expressly does not address contraception, same-sex marriage or other rights.

That claim has always been absurd but has become a talking point on the left. After the leak of the draft opinion, the New York Times opinion editors warned that some states likely would outlaw interracial marriage if Roe v. Wade is overturned: “Imagine that every state were free to choose whether to allow Black people and white people to marry. Some states would permit such marriages; others probably wouldn’t.”

It takes considerable imagination because it is utter nonsense, though it must come as something of a surprise to Justice Clarence Thomas, given his interracial marriage, or to Justice Amy Coney Barrett, given her own interracial family.

Nevertheless, politicians lined up to lead the parade of predicting horrible consequences. House Speaker Nancy Pelosi warned that “with Roe and their attempt to destroy it, radical Republicans are charging ahead with their crusade to criminalize health freedom.”

Yet, the fact is this decision is closely crafted to address whether there is a constitutional right to abortion and would not undermine these other rights. Thomas alone raised the issue of reexamining cases that protect same-sex marriage, interracial marriage and contraceptive rights. A majority of justices noted that “abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”

The court held that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” Much of course has changed since 1973 when Roe was handed down. At that time, most states restricted legal abortions.

Majority of Americans support legal abortions

Now, the overwhelming majority of Americans have supported Roe v. Wade and 16 states have guaranteed abortion, including states such as California, Illinois and New York that hold a significant percentage of the population. States like Colorado protect the right of a woman to make this decision without limitations on the stage of a pregnancy.

Moreover, abortions can be carried out at home, not in a clinic, with the use of abortion pills. It would be difficult for states to prevent access to such pills even if they were inclined to do so, particularly if such access is supported by the federal government.

Yet, 26 states asked the court to overrule Roe and its successor, Casey. With Dobbs, we will now have a new political debate over access and any limitations for abortion. Most citizens are in the middle on this debate.

While a strong majority support Roe v. Wade, they also support limitations on abortion. Polls also show that 65% of Americans would make most abortions illegal in the second trimester, and 80% would make most abortions illegal in the third trimester. (The United States is one of only 12among the world’s 198 countries that allow abortions for any reason after 20 weeks.)

President Joe Biden responded to the opinion by calling, again, for a federalization of the Roe standard by Congress. Even if the votes could be found to pass such a law, it is not clear that it would be upheld by a court that has now returned this issue to the states.

One thing Biden said was clearly true. Abortion will now be “on the ballot.” The justices were indeed motivated by the need for the public to make these decisions and wrote that “Roe abruptly ended that political process.”

The issue will loom large in the upcoming election now that states will decide their own laws, ranging from prohibitions to restrictions to absolute guarantees. And the outcome will turn on the votes of millions of citizens rather than nine justices.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

Civil Lloyd Austin GOES NUTTY AS A FASCIST! Why?

Lloyd Austin needs to resign as Secretary of Defense

JAZZ SHAW Jun 26, 2022 at HotAir:

AP Photo/Alex Brandon

Since the announcement of the decision in Dobbs on Friday, elected officials and media personalities across the board have been weighing in with their own takes as you would expect. But one of the last people I would have expected to dive into the public debate was Secretary of Defense Lloyd Austin. And yet he somehow made the decision to wade into the Roe v Wade issue up to his hips. This turned out to be a very poor decision for several reasons, as we’ll see in a moment, but the question here goes far beyond one retired military officer’s personal views. The spectacle Austin created was simply damaging and Lloyd Austin needs to either resign or be fired, not that Joe Biden will make any such move. At Redstate, Mike Miller highlights Austin’s comments and points out how wrong he managed to get the entire affair.

‘It comes as no surprise that Secretary of Defense Lloyd Austin has issued a statement all but condemning Friday’s overturn of Roe — by pledging that the United States military “be all that it can be” [sarcasm] and will do all it can in support of “seamless access to reproductive health care [on-demand abortion].”

What is a bit of a surprise — Austin’s apparent ignorance of federal law — is laughable.

In a statement posted on the Department of Defense website, Austin pledged the U.S. military’s (emphasis, mine) “readiness and resilience” to, in effect, “continue to provide access” to abortion.

Before getting to the question of precisely how far this spectacle went off the beam, allow me to make one thing clear. This has nothing to do with the Dobbs decision on Friday and how Lloyd Austin might personally feel about it. He’s entitled to his personal opinion like anyone else. The error here has to do with Austin’s decision to make an official statement as the Secretary of Defense and, as Miller points out, his almost comical lack of knowledge in terms of the policies he’s discussing.

With that said, here are the key portions of Austin’s statement. “Nothing is more important to me or to this Department than the health and well-being of our Service members, the civilian workforce and DOD families. I am committed to taking care of our people and ensuring the readiness and resilience of our Force. The Department is examining this [Roe] decision closely and evaluating our policies to ensure we continue to provide seamless access to reproductive health care as permitted by federal law.”

The idea that there is “nothing more important” to the United States Secretary of Defense than abortion access is insulting enough. But the Defense Secretary (and the entire department, for that matter) are supposed to be non-political by design. The military – including its civilian leadership below the presidential level – are supposed to serve presidents from both parties without fear or favor. Austin’s first priority must always be ensuring the readiness of the American military to take the field if required and defeat our enemies. Politics has no place in his office.

But let’s just pretend for a moment that this was okay. Austin said he would ensure that his department will “continue to provide seamless access to reproductive health care as permitted by federal law.” Really? That’s going to come as a major surprise to all of the women in our military who wanted to get an abortion in the past. Military health facilities do not perform abortions, even if the woman is offering to pay for it themselves. And the only time they will pay for an abortion performed by an outside provider is if the pregnancy is the result of rape or incest.

That’s not a political policy. It’s because of the Hyde Amendment, which Lloyd Austin has apparently never heard of. All of the money consumed by the military comes from federal funds. Federal funds may not be used to pay for abortions in almost all cases. And as to Austin’s statement about “as permitted by federal law,” as of Friday there is no relevant federal law. Those decisions have been returned to the states, whether you agree with the resolution or not.

There were questions raised about Lloyd Austin’s suitability to run the Defense Department from the moment that Joe Biden nominated him. We should never forget his long, successful career in the military and the nation owes him its gratitude for that. But being a great soldier doesn’t necessarily translate into being a great governmental leader. His tenure at Defense hasn’t exactly been characterized by greatness. Let’s ignore for the moment the disastrous withdrawal from Afghanistan. (He shouldn’t have to shoulder all the blame for that, but it happened on his watch.) We’ve had other issues with our military as well.

And now Austin has decided to drag the office of the Secretary of Defense into the political mud pit in the middle of one of the most divisive issues of the day. We already have enough civilians setting buildings on fire and launching battles in the streets over Dobbs. We don’t need our military being dragged into it. Lloyd Austin should resign. I’m positive that won’t happen, but it still needs to be said.

Today’s American Family HAS NEITHER A MOTHER NOR A FATHER….They either are divorced or too busy to manage the human matter!

June 25, 2022

A Father Makes all the Difference

By Richard McDonough at American Thinker:

The rise in school shootings correlates with the destruction of the family and the declining number of fathers in the home, with the consequent decline in the moral values of young people.  The idea that fathers are essential to the proper moral development of young men was undermined by the Marxist idea that the traditional family is an evil patriarchy where the father oppresses the wife and children in a way analogous to the way evil capitalists oppress the workers.

As a consequence, the idea that there can be all kinds of families, single mother families and female-female families and transgendered-parents families came to be celebrated on talk shows from coast to coast.  It was all so … inclusive!  It never occurred to any of these all-knowing social activists to ask what the long term effects of conducting these social experiments on American society might have.

Washington Post journalist William Raspberry tells how, in the late 1970’s, rangers in South Africa’s Pilanesberg Game Park began to find large numbers of dead white rhinos.  Naturally, their first thought that these had been killed by poachers but that didn’t make sense.  The rhino horns prized by the poachers were intact. Cameras were set up to identify the culprit, leading to a shocking discovery.  The rhinos were being killed by elephants.  But why?  The same elephants causing the violence had been there for years with no problems. 

It turned out that years earlier Kruger National Park, another South African game park, had too many elephants.  It was decided that some of the excess would be shipped off to other parks and that some of the older larger males too difficult to transport would be shot.  The natural order of things had been disrupted by human beings who thought they knew more than they did and it was only a matter of time until the violence exploded.  What the cameras revealed was that young bull elephants, teenage male elephants that had been shipped to Pilanesberg, were chasing rhinos over great distances before stomping them to death.  Further, these violent teenagers were being led by a handful of particularly bad actors, one of these a particularly nasty young male nicknamed Tom Thumb by park rangers. Young sexually active bulls, “suffering from an excess of testosterone,” became increasingly violent.  The sexually over-stimulated teenage male elephants formed gangs led by the most violent males.  The other males, the followers, imitated their violent leaders. 

Park rangers considered that it might be necessary to kill the young males.  However, eventually it was decided to reintroduce some mature bigger bulls to Pilanesberg with the hope that these mature males could rein in the violent teenagers.

The experiment worked. Not only did the mature bigger bulls inhibit misbehaviour by the violent teenagers, but something more subtle happened.  The large mature bulls became the dominant sexual partners for the females resulting in a drop in the testosterone levels in the young bulls and a consequent reduction in their violent behaviour.  Further, after a few instructive fights with the mature bulls, in which the teenage bulls, so to speak, in the school of hard knocks, learned some important life-lessons, the teenage bulls began following the older bulls around and imitating their more mature behaviour.  The bigger mature bulls re-established the natural hierarchy and the violent teenager gang leaders were replaced by mature males that taught the teenage bulls discipline and proper male elephant behaviour.

Unfortunately, influenced by Marxist teachers who think that because of the theories they memorised at university they know more than they do, the United States has been engaged for several decades in a social experiment with our children.  The Marxist view has become common, in some places an unquestioned axiom, that the traditional family is an patriarchy in which the father oppressed the mother and children on analogy like evil capitalists (allegedly) oppress the workers.  The state of women and children in the family is compared to slavery.  As Marx puts it in the Communist Manifesto,

The bourgeoisie has … reduced the family relation to a mere money relation. … Abolition of the family! … The bourgeois family will vanish as a matter of course … with the vanishing of capitalism.

In order to be “tolerant” and “inclusive” one must redefine the family to eliminate the oppressive patriarch.  One must countenance families with unmarried parents, single-mother families, mother-mother families, transgendered families or communes with no family structure at all.  Women, without a male provider, must often “marry the government,” which then commands their vote, while sexually over-stimulated males, unrestrained by the traditional family gender roles, tomcat around irresponsibly, perhaps in gangs showing off with guns, looking for victims to “stomp” and more females to impregnate, leading to even more angry young males.  The violent consequences of destroying the natural order of fathers and mothers and children are no different in the human community than the elephant community. 

Finally, having created this problem of undisciplined violent young males roaming around with guns by destroying the natural order of the traditional family, the Left seeks to “solve” the problem by the band-aid of gun legislation that penalizes gun owners that have done nothing wrong.  That is far easier than self-reflection.  Unfortunately, that leaves one with the violent young males created by the leftist destruction of the family.  

HANDEL’S MESSIAH!

“COMFORT THEE MY PEOPLE!”

Nearer, My God, to Thee

May the Spirit of God Return Soon TO THE AMERICAN PEOPLE!

“Roe was not law and could never be defended as such!”

Roe was never law

ANDY MCCARTHY Jun 25, 2022 at HotAir:

If we could keep abortion out of it for a moment, then, and think of this as a straight, legal stare decisis question, you had a ruling that was so galactically wrong that it had to be completely overhauled in less than 20 years. A ruling that was so unstable that it was subject to constant regulatory and legal challenge, and thus could not reasonably be relied on. And that’s just the legal landscape, before you ever get to the court of public opinion — the cultural and political arena in which Roe/Casey was never broadly accepted and was always the target of passionate dissent by much of the country.

Roe was not law and could never be defended as such. It has thus been defended by extortion, by the mob. It still is: The Court’s opinion was not even published before the “Night of Rage” planning was under way. The Left tried to prevent the ruling from issuing by an unprecedented leak of a draft opinion, patently intended to intimidate the justices — just as the Left destroyed the judicial-confirmation process over abortion with the intent of intimidating justices. In the weeks since the leak, we have had illegal protests against which a leftist administration has refused to enforce the laws (Roe having corrupted the Justice Department the same way it corrupted the law), and finally the attempted murder of Justice Kavanaugh — an utterly predictable event incited (to borrow the Left’s promiscuous use of that word) by the likes of the Senate’s Democratic Party leader.

By ANDREW C. MCCARTHY

June 25, 2022 6:30 AMListen to article

A controversial subject that should never have been wrested from the people in the states has now been returned to them.

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There is no mincing words: The Supreme Court’s historic Dobbs ruling made Friday a great day for life.

A great day for the restoration of American constitutional law, too. And a great day for democracy in our republic. It marks a high moment for the United States Supreme Court, which has been tested as never before. It stood firm and yet restrained, acknowledging that the great public-policy decisions in our society are to be made by free, self-determining people, not unelected judges.

Barack Obama, perhaps the nation’s most solipsistic politician and ideologue, took only moments after the issuance of Justice Samuel Alito’s majority opinion to wail that the Supreme Court had relegated the most “intensely personal decision someone can make to the whims of politicians and ideologues.” If you’re keeping score, yes, this would be the same Barack Obama whose signature presidential “achievement” was radically expanded government control over the health sector, leaving more and more intensely personal decisions — decisions about actual health care, as opposed to the taking of unborn life under the guise of health care — at the whim of partisan Democrats and progressive bureaucrats.

The main point here, though, is not hypocrisy. It is hard-edged politics. The former president went directly to politics because, for abortion crusaders, there has never been anything else.

In Roe, seven willful politicians in robes usurped the power of the putatively sovereign states to regulate abortion. Unless a constitutional right was at stake, the federal judiciary had no business intruding on the internal governance of the states, particularly over matters of health and safety that are the traditional domain of the states. But the Constitution does not speak to abortion.

Justice Brett Kavanaugh’s Dobbs concurrence reminds us of Justice Antonin Scalia’s bracing but inarguable point in Casey: the “States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so.” Permit it on demand, forbid it entirely, or implement some regulatory regime between those two polar opposites. It is simply not a constitutional question. Ergo, a judicial edict on it, Roe, has always been a usurpation of authority under the guise of law, not an authoritative explication of the law.

You would know that if you had perused the briefs and weighed the argument in Dobbs. Or, indeed, if you have followed a half century of the house of cards that has been abortion jurisprudence. As Justice Alito recounts in Dobbs, the eminent liberal legal scholar John Hart Ely memorably described the salient feature of the Roe excrescence when it first appeared: The decision is not merely “bad constitutional law”; rather “it is not constitutional law and gives no sense of an obligation to try to be.”

It was never law at all. The very able lawyers who have defended Roe over the decades have eschewed arguments rooted in the Constitution. Roe has been defended as precedent: The decision commanded deference because it happened, not because it was compelling — or even coherent. It could never be justified on its own terms as linear, logical, legitimately rooted law.

Progressives have thus made a talisman of stare decisis, the doctrine of respect for precedent. They would have you believe, at least when it’s a precedent they like, that stare decisis is Latin for “don’t you dare touch this settled law.” Like the rest of the Roe bag of tricks, that’s laughable as a legal argument — we’ve all noticed that Dred Scott, Plessy v. Ferguson, Korematsu, and other precedents in the Court’s lowlight reel were reversed by the Court. More to the point, though, stare decisis has never been a mandate to uphold precedent; it is a multipart test to assess which precedents should be retained.

It’s a test that Roe was particularly ill-suited to survive.

We haven’t been under Roe for, now, 30 years. The ruling was so unstable and indefensible that, in Casey (1992), a reluctant, razor-thin majority of the Court could save it only by gutting its rickety foundation while maintaining its bottom-line holding — again, in the manner of “because I say so” diktat, not legal reasoning.

And what did Casey replace Roe with? A newfangled “undue burden” test — essentially asking: Does a regulation so burden resort to the abortion “right” as to render it illusory? Notice, however, that it is the nature of such a test to invite regulation and therefore to invite constant streams of challenges.

If we could keep abortion out of it for a moment, then, and think of this as a straight, legal stare decisis question, you had a ruling that was so galactically wrong that it had to be completely overhauled in less than 20 years. A ruling that was so unstable that it was subject to constant regulatory and legal challenge, and thus could not reasonably be relied on. And that’s just the legal landscape, before you ever get to the court of public opinion — the cultural and political arena in which Roe/Casey was never broadly accepted and was always the target of passionate dissent by much of the country.

Roe was not law and could never be defended as such. It has thus been defended by extortion, by the mob. It still is: The Court’s opinion was not even published before the “Night of Rage” planning was under way. The Left tried to prevent the ruling from issuing by an unprecedented leak of a draft opinion, patently intended to intimidate the justices — just as the Left destroyed the judicial-confirmation process over abortion with the intent of intimidating justices. In the weeks since the leak, we have had illegal protests against which a leftist administration has refused to enforce the laws (Roe having corrupted the Justice Department the same way it corrupted the law), and finally the attempted murder of Justice Kavanaugh — an utterly predictable event incited (to borrow the Left’s promiscuous use of that word) by the likes of the Senate’s Democratic Party leader.

Thanks to the courage of the justices, the intimidation campaign not only did not work, it was counterproductive. Dobbs did not hit on Friday like a bolt from the blue. It was issued almost two months after a leak that has enabled constitutional conservatives to make inroads with the public, to edify Americans who might otherwise have fallen for the Left’s shock-and-awe demagogy that, no, the Alito opinion would not actually outlaw abortion; and, no, it would not criminalize women who seek to avail themselves of the sordid procedure.

The fringe promised rage in the darkness, but the country rises this morning to find that the sky has not fallen. All that has happened is that a controversial subject that should never have been wrested from the people in the states has now been returned to them. After a long half-century, the people have been re-empowered to decide for themselves how abortion should be regulated — no longer dictated to by barbaric extremists who refuse to concede any limitation on the right to end a baby’s life, up to the moment of delivery.

Fidelity to the law has finally driven the extortionists out of the courts. Now we’ll see how their radical politics fares in the political arena. Life won big on Friday. But far from a final victory, it is more like a new beginning: the joining of the battle in the place where it should always have been fought.