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Protest Interrupted

We interrupt this protest to bring you the following guidance for those distraught by the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health, the case overturning the decades old landmark abortion decision in Roe v. Wade.

First, breathe in….and hold 1, 2, 3, now breathe out, Just breathe! Now, take a second to READ the opinions in Roe, Casey, and now Dobbs to understand what the Court actually decided, and ignore the phony political talking points. Your mental health depends on it. Okay, fine! You don’t have time to read the opinions in the rush to get to the protest. Here is the $5 summary of the issue. Before Dobbs, states could not ban abortion prior to the age of viability. This came from the following cases: The OG abortion case, Roe v. Wade (1973), which held that the Constitution of the United States generally protected a pregnant woman's liberty to choose to have an abortion. This was based on an interpretation of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution which provides a fundamental "right to privacy" that protects a pregnant woman's liberty to abort her fetus. I know that’s a lot of legal mumbo jumbo, but essentially, the court held that the constitutional right to privacy, gave rise to the constitutional right to an abortion. One more important point. This constitutional right to an abortion was not absolute and had to be balanced against the government's interest in protecting women's health and protecting prenatal (the fetus’s) life according to a strict scrutiny standard, meaning there was a high threshold for the government to restrict access to an abortion. A trimester table was employed to balance these competing interests. Basically, the further along in the pregnancy you were, the more restrictions that were allowed. Almost 20 years later we had the case of Planned Parenthood v. Casey (1992) which affirmed Roe but replaced the trimester table with the viability standard that most are familiar with today. The strict scrutiny standard was also replaced with an undue burden standard which made it easier to restrict an abortion as long as it did not pose an “undue burden” on the person carrying the child. To simplify, Casey opened the door for broader restrictions on abortion while not disturbing Roe’s constitutional protections of the procedure.

Enter Dobbs. This case involved Mississippi’s Gestational Age Act which provided that, “except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform…or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” Florida now has a similar law on the books since 2022. It wasn’t a ban on abortion outright…it was a ban after 15 weeks. Nevertheless, it brought back up the critical question ignored in the Casey decision, whether the U.S. Constitution confers a right to obtain an abortion. In the end, a conservative majority on the U.S. Supreme Court, three of which were appointed by President Trump, broke from the precedent set by Roe, deciding that the Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. That’s all the Court did. They returned the authority to regulate abortion back to the people and their elected representatives. That’s it. Regardless of what CNN or even President Biden claim…the court in Dobbs did not “eliminate” a constitutional right to an abortion. The Dobbs decision confirms what many constitutional scholars have argued for years, that the constitution never provided a right to an abortion in the first place. Furthermore, while the court in Dobbs makes clear that there is no constitutional right to an abortion, it does not preclude access to one. States continue to have the authority to either restrict or allow them, depending on whatever the people of the state decides. Essentially, the Supreme Court is not limiting a woman’s access to abortion, nor is it limiting a women’s right to choose. Instead, the Court is simply saying that the people of a state have the right to choose as well.

So that’s it. Whether you like it or not, Dobbs is now law in this country. That’s the facts, that’s the truth. You can protest, scream, yell, or even harass justices at their homes but the fact of the matter is this, if you want an abortion, you can still have one if your state allows it. If you live in a state that does not allow one, you can go to a state that does. You are also free to elect legislators that will allow abortion in your state and of course, you can always move to a place that votes more in line with your values. That's about as pro-choice as it gets. We now return to your regularly scheduled protest.

*Originally posted on Not Just Pollack-tics Blog on The Buff Show:


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