Flawed Interpretation of abortion criminalization by anti-abortion advocates for thirty years
July 6, 2022, Letters from an American, Prof. Heather Cox Richardson
As taken from Letters from an American. A brief introduction as to how SCOTUS arrived at their opinion on Abortion. Accomplished by ignoring a long legal tradition extending from common law to the mid-1800s and even longer in some states. This tradition includes Mississippi tolerating the termination of pregnancy before the occurrence of Quickening. Quickening the being the time when a woman first felt movement. SCOTUS opinion now relies upon misinterpretations and makes it such in authoritative text.
Both the Organization of American Historians and the American Historical Association, the flagship organizations of professional historians in the U.S., along with eight other U.S. historical associations (so far), yesterday issued a joint statement expressing dismay. Dismay over the six Supreme Court justices in the majority in the Dobbs v. Jackson Women’s Health decision that overturned Roe v. Wade ignoring the actual history those organizations provided the court. Instead, SCOTUS “adopts interpretations of abortion criminalization pressed by anti-abortion advocates for more than thirty years.”
Although the decision mentioned “history” 67 times, they note, it ignored “the long legal tradition, extending from the common law to the mid-1800s (and far longer in some states, including Mississippi), of tolerating termination of pregnancy before occurrence of ‘quickening,’ the time when a woman first felt fetal movement.”
The statement focuses less on politics than on the perversion of history, noting that “[t]hese mis-representations are now enshrined in a text that becomes authoritative for legal reference and citation in the future,” an undermining of the “imperative that historical evidence and argument be presented according to high standards of historical scholarship. The Court’s majority opinion…does not meet those standards.”
Alito’s “history” is selective. He valorizes 19th century history over the history of the preceding centuries, including the time of the Declaration of Independence and the Constitution.
Abortion Constitutional Decisions
The court adopted what they had already believed. No surprise there. It’s why the 6 are on the court.
With all this, the worst I’m hearing is how Roberts wanted to take a “slower” approach out of concern for the image of the Court. A “slower” approach? Image of the Court! Some of the worst argument by journalist for what Roberts wanted. It’s the: See, it did not have to be this bad, just a little bad.
No one should have been surprised. The Court has been doing the “decision in search of a reasoning” for decades when you look at their corporate/money favoring rulings.
What we have seen in the court is what we see when we use professionals to make the decision vs advising the decision. The men who devised our government system were men (sorry to say only men) that I like to refer to as multidimensional. Learned in many aspects of life. If we are to impower what the founder’s individual knowledge and life experiences were within our Court, we need to start putting other professionals on the Court and not just those steeped in law.
It is the rare person today that has the diversity of knowledge and experience of our founders. I used to view the position as a privilege, and honorarium. It was the position we placed our most “wise” individuals. Maybe I’m just over romanticizing in hope. Either way, if we do not view our court in such a manor we will continue to have something lesser than what I believe the founders had in mind. That is a court of people as multidimensional as they were.
actually he valorizes 17th century British common law over 18th century “freedom” and an implied right to be left alone (privacy..note fourth amendment, first amendment, second amendment, third amendment, fifth amendment, ninth amendment, tenth amendment, and fourteenth amendment. Not to mention the Preamble and the Declaration of Independence.
What is egredious about this court is not so much the revoking of Roe, but the reasoning used to justify it. [don’t get me wrong, revoking Roe is bad, but the complete destruction of reason is ultimately more dangerous, as they have been anxious to show us before their time runs out. It’s time for truly massive demonstrations if they can be coordinated and Peaceful. Strikes and Boycotts.. that is, of course, if the congress, president and state legilatures can’t figure it out without being reminded.
It seems to me that the existence of historic state laws is perhaps more important than the content of the laws. States understood that they had authority to regulate abortion. How they used that authority isn’t that germane if the major question is if they rightfully have such authority.
Eric:
This is covered by the 14th Amendment to the Constitution. The Due Process Clause of the Fourteenth Amendment protects against state action the right to privacy, and a woman’s right to choose to have an abortion falls within that right to privacy. A state law that broadly prohibits abortion without respect to the stage of pregnancy or other interests violates that right.
This was not just made up with Roe v Wade. As Erwin Chemerinsky points out;
Your accounting of what can be done by SCOTUS with regards to state law would resurrect segregation and separate but equal laws. The 14th amendment does give the court the ability to interfere with state law.
Remembering the Colfax Massacre on its anniversary is a step toward restoring an accurate history of Reconstruction and reminding us that the Supreme Court abetted state racist violence decades before it authorized state legal segregation. The Jim Crow South surely remembered the meaning of Colfax and Cruikshank, as evidenced by a monument the State of Louisiana erected in 1950 Colfax Massacre:
Colfax Massacre
The memorial over the three whites’ graves is even more to the point:
It is all about control of the little woman. heh, Eric?
After Jim Crow was defeated, Colfax was forgotten. It’s time to start remembering. It’s not about federalism; it’s about collective amnesia.
How many times has SCOTUS intervened in state law? State Laws Held Unconstitutional:
Nine hundred and sixty-eight times with the last being (Justia US Law):
There are major concerns over Justice Amy Barrett. You can read of her disabilities to write a decision here: Amy Coney Barrett Is in Over Her Head
Thats all for now.