South Florida Sun-Sentinel (Sunday)
I’m against abortion, but Dobbs ruling was a mistake
During his Supreme Court confirmation hearings, thenJudge Samuel Alito told the Senate Judiciary Committee on Jan. 9, 2006, “A judge cannot have any agenda.” The sophistry evident in Dobbs v. Jackson Women’s Health Organization belied that assurance. Justice Clarence Thomas left no doubt what the agenda is. There are roughly two schools of thought as to constitutional interpretation: the originalists and the judicial pragmatists. The originalists profess that when the Constitution does not annunciate a right, it can nevertheless be found if the Framers intended it to exist. They become amateur historians trying to discover if circa 1787 the right was deeply rooted in our history and implicit in the concept of ordered liberty.
That we should be guided by what was, or was not, in the minds of the Framers is absurd. All but John Adams owned slaves. They all believed that women should not vote or own property. Despite their acceptance of the mores of the time, they created a magnificent document.
The judicial pragmatists treat the Constitution as a living document, deliberately vague, to accommodate change as society encountered changing conditions that did not exist at its inception.
The originalists argue this liberal method allows judges to find rights according to their own predilections or be guided by faddish notions of the time. The pragmatists call this fear a paper tiger as they’re bound by precedent. For example, a pragmatist who believed parents have a right to forgo educating their children would be restrained by precedents holding otherwise.
Justice Robert Jackson warned that invoking legal history to prove a point is too much like ox tail soup. You have to go too far back to find something good. With Dobbs, Alito looked for laws criminalizing abortion and concluded the Framers did not intend a right to abortion.
At common law, abortion was legal up to the time of quickening. In the 19th century, no state had laws against it until 1821. The Constitution was ratified in the 18th. It is likely the Framers gave abortion as much thought as they did television.
Dobbs is a misdirection play and thus sophistry. It sends us on a fool’s-errand search for a right to abortion. The search, properly, is for a right to privacy. The Roe v. Wade decision is founded on a right to privacy. Undoubtedly, privacy was in the minds of the Framers in 1763. William Pitt famously said, “The poorest man in his cottage may bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter. All his forces dare not cross the threshold of that ruined tenement.”
One of the grievances that led to the Revolutionary War was the Writs of Assistance, whereby the crown’s officers could, without probable cause, search the homes of the colonists without specifying which home was to be searched.
In creating the Constitution, the Framers were concerned that people who just fought a war to overthrow a strong central government would not ratify a document that created another one. To avert this possibility, they produced the Bill of Rights, the first 10 amendments. The First guarantees freedom of assembly; the Third prohibits the quartering of troops in the homes of citizens; the Fourth bans unreasonable searches and seizures. Privacy screams from these amendments. And to ensure the Constitution would be treated as a living document, the Framers, who had not yet conceived that Blacks should not be slaves, nor women vote, created the Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Roe was decided on privacy — privacy in the family and with doctors, as were a host of other cases. Justice Thomas revealed his agenda in his concurring opinion. In Dobbs, he recommends his brethren, in the future, reconsider Griswold, Lawrence and Obergefell — cases founded on privacy. Griswold guaranteed the right to contraceptives, Lawrence to same-sex relations and Obergefell to same-sex marriage.
Interestingly, Thomas omitted from his hit list Loving v. Virginia, the right to interracial marriage. That would affect his situation; it hits too close to home.
I am opposed to abortion. I believe life begins at conception and a right to life trumps a right to privacy. Then why this defense of Roe? Because while I want an end to abortion, we should not get there through sophistry. Fallacious arguments can be used to erode the bedrock of democracy. Its loss is worse than abortion.
Jim Carlisle is a retired circuit judge. He lives in Palm Beach Gardens.