IN LIGHT OF THE DOBBS DECISION WHAT IS THE STATUS OF LEGAL ABORTION?
February 1, 2023 | View PDF
The Dobbs decision overturned the “Constitutional” right to abortion under Roe v Wade. The decision was to return the denial or the availability of abortion to the people (of the various states). Justice Kavanaugh pointed out in his concurring opinion that the Constitution neither provides a right to abortion nor does it allow a barrier to abortion. There is considerable statutory language available from the states and even some states while they were yet territories which criminalized abortion. Most of these statutes were enacted in the nineteenth century; some enacted in the early to mid-twentieth century.
Justice Kavanaugh pointed out that the United States Supreme Court in Roe v Wade had moved from a neutral position to one of deciding for the people. In Dobbs, the Court moves back to the neutral position. There is speculation that the Biden, White House and Democratic members in Congress may push to codify a Federal right to abortion. If that were to happen and a judicial review sought, with the Supreme Court seeking a neutral position one has to wonder the outcome. Is the will of the majority of people through their representatives of the State of Alabama and just over a quarter of all states to completely ban abortion going to remain in place, recognizing the sovereignty of those states? Are the representatives of other states, especially those much larger that incline towards a impersonal view of fetal death for convenience sake going to impose their will through a Federal law that allows infanticide? Should that happen how does a “neutral” Supreme Court then rule for or against the will of state sovereignty?
The other almost three fourths of the states allow for various limits on abortion. Georgia has a six-week cutoff. There are a few states that have no cutoff on fetal age for abortion. There are several states that provide abortion until twenty-two weeks and many that provide abortion until viability. With modern science viability is an unknown. Is the abortion of a child born alive one to be set aside until it dies or is murdered by the abortionist or are measures enacted to save the life of the child? There are children and adults living today that have survived abortion rather than experiencing a joyful and wanted live birth. The Lozier Institute reports about 60% of babies born at 22 weeks survive when they receive active hospital treatment. A 1981 article in the Philadelphia Inquirer noted a baby surviving an abortion as a “dreaded complication”.
Though prior to Dobbs, I ran across an interesting case from 2018, NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES, DBA NIFLA, ET AL. v. BECERRA, ATTORNEY GENERAL OF CALIFORNIA, ET AL. A California law was passed to regulate pro-life, crisis pregnancy centers. That law required such centers whether licensed or not, “California provides free or low-cost services, including abortions, and give them a phone number to call. Its stated purpose is to make sure that state residents know their rights and what health care services are available to them. Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services. Its stated purpose is to ensure that pregnant women know when they are receiving health care from licensed professionals.” The Supreme Court noted that the state attempted to regulate free speech under the First Amendment by requiring speech contrary to the position of the clinics. California attempted to separate “professional” speech from the speech of other individuals and show reason to regulate it. California regulated such speech asserting that women did not know what type of clinic that they may have entered. The only justification that the Supreme Court saw for such regulated speech was whether or not a pregnant woman would be receiving care from licensed professionals. The case was therefore reversed and remanded to the lower court with support for the pro-life pregnancy centers.
The Dobbs decision settled the lack of Constitutional address of abortion. The states will have to individually figure out the will of their residents. Hopefully, an overreaching Federal government will not seek to impose its will on those unwilling to support a legalized freedom to impose the death penalty on the inconvenient, imperfect or unwanted pre-born.
This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.
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