Troubling Excerpts & Analysis from Dobbs v. Jackson
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This article was started by Dave Leach R-IA Bible Lover-musician-grandpa (talk) June 16, 2022 (UTC)
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- 1 Introduction
- 2 Page 1: "Abortion is murder" is what SOME believe
- 3 Page 5: The only reason aborticide isn't a constitutional right is that it hasn't been legal for several centuries
- 4 Page 6: Voters should decide whether to keep murder legal
- 5 Page 8: What are the grounds for Roe?
- 6 Page 29: Past judges knew "It's a Baby"
- 7 Page 30: You can believe lies but can't murder based on them
- 8 Page 31: Voters should decide about murdering babies
- 9 "The Constitution does not take sides on the issue of abortion"
- 10 Judges can't decide for voters about murder
- 11 Roe's mistake was taking issue from voters
- 12 It's "wrong" to rule that murder be outlawed in EVERY state
- 13 Baby killers base their "right" to murder on their right to Liberty
- 14 The 14th Amendment doesn't protect any "fundamental right" to life, but only requires murderers to follow the correct procedures
Page 1: "Abortion is murder" is what SOME believe
The first paragraph, page 1:
"Abortion presents a profound moral issue on whichAmericans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman's right to control her own body and prevents women from achieving full equality."
Are you saying that 49 years later, “the judiciary is [still] unable to speculate” about “when life [in fact] begins” “at this point in the development of man’s knowledge”?
Because once you know babies are in fact people, it is irrelevant what anyone “fervently believes”, or how many voters “strongly feel” that “full equality” eludes women who can’t murder their babies. The 14th Amendment outlaws infanticide, as surely as it outlaws slavery, in every state.
“A human person comes into being at conception.” That fact is “established” (Roe’s word) by every American legal authority that has ruled on “when life [in fact] begins” - by court-recognized fact-finders in every category of court-recognized fact-finders: juries, expert witnesses, states, Congress, and individual judges. No American legal authority has fixed any later time than conception that a baby in fact becomes human. If the uncontradicted consensus of every court-recognized fact-finder that has taken a position is not enough for a judge to know a fact, how is it possible for any judge to know anything?
(1) juries ruling on the “it’s a baby” element of the Necessity Defense in the earliest Operation Rescue cases, (2) expert witnesses in thousands of similar trials who were never opposed, (3) 38 states in “unborn victims of violence” laws with their supporting Findings of Facts, (4) Congress in 18 USC 1841(d), and (5) individual judges who took a position.
Appellate courts claimed Roe said babies aren’t people “as a matter of law”, but Roe passed on the question, saying judges were “unable to speculate”.
It is certainly a “sharply conflicting” VALUE to conceive of “full equality” for women as including the right to murder another “invidious class” of “human persons”. That is a value held by a wide range of non-Biblical religions and philosophies, (Islam’s “apes and pigs”, Communism’s “survival of the fittest”, Hinduism’s caste system, etc.) but is alien to “all men are created equal” of our Declaration and “equal protection of the laws” of our 14th Amendment – principles taken from verses like Exodus 12:49, Galatians 3:28, Colossians 3:11, and Matthew 19:14. It is also a pagan idea to imagine that if someone “feels just as strongly” that a lie is true, that makes it true – that makes it relevant to a court tasked with establishing facts.
Notice the artificial distinction between “human” and “person” is given no oxygen here.
Page 5: The only reason aborticide isn't a constitutional right is that it hasn't been legal for several centuries
"...the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are notmentioned in the Constitution, but any such right must be “deeply rooted in this Nation's his- tory and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted) The right to abortion docs not fall within this category."
COMMENT: Deeply rooted in history? No, something more dispositive than that must rule aborticide illegal: the fact that it kills babies. When the 14th Amendment was enacted, the right to own slaves was “deeply rooted in history”. If being “deeply rooted in history” created an exemption from “equal protection of the laws” for one class of humans to continue tyrannizing another, we would still have slavery. Women would still not vote. Children would still work long hours in sweat shops. Sodomites could still not marry. Oh wait, maybe I agree Obgerfell was wrong because the right of sodomites to stay out of jail, much less marry, is not “deeply rooted in history”. But even sodomite rights should not be reversed because they are not “deeply rooted in history” but because sodomy is unspeakably unsanitary, it spreads the worst of diseases, it shortens lifetimes twice as much as smoking, its promiscuity exceeds that of prostitutes. But did your ruling mention any of those factors?
The 14th Amendment made dispositive the FACT that a class of human persons is tyrannized by another, and made irrelevant how long the tyranny has been going on.
Abbreviated page 5: [Abortion is neither] mentioned in the Constitution [nor] “deeply rooted in this Nation's history and tradition” [nor] “implicit in the concept of ordered liberty.” so it is no constitutional right.
The direct reason aborticide is no constitutional right is that the 14th Amendment made dispositive the FACT that a class of human persons is tyrannized by another, and made irrelevant how long the tyranny has been going on.
Deeply rooted in history? No, something more dispositive than that must rule aborticide illegal: the fact that it kills babies. When the 14th Amendment was enacted, the right to own slaves was “deeply rooted in history”. If being “deeply rooted in history” created an exemption from “equal protection of the laws” for one class of humans to continue tyrannizing another, we would still have slavery. Women would still not vote. Children would still work long hours in sweat shops.
Page 6: Voters should decide whether to keep murder legal
It is time to heed the Constitution and return the issue of abortion to the people's elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U.S. at 979 (Scalia, J, concurring in the judgment in part and dissenting in part).
COMMENT: Not if babies are people. We don’t vote on whether to protect murder. The 14th Amendment was never understood to allow “the people’s representatives” to decide whether to continue slavery, and it must not be forced now to permit voters to continue infanticide. Not unless we want to repeal the 14th Amendment, trash the Declaration of Independence, and revert Lex Rex (the law is king) back to Rex Lex (the King is the Law).
Page 8: What are the grounds for Roe?
"Casey reaffirmed Roe's “central holding” based solely on the doctrineof stare decisis, but as we will explain, ‘proper application of stare decisis required an assessment ofthe strength of the grounds on which Roe was based."
COMMENT: Hmmm. The only factual ground for Roe was “the judiciary...is in no position to speculate” about “when life begins”. As Roe said, once that is “established”, then “of course” the 14th “Amendment” protects the unborn. Will we read that in this draft opinion?
"We therefore turn to the question that the Casey plurality did not consider, and we address that question in three steps. First, we explain the standard that our cases have used in determining whether the FourteenthAmendment's reference to “liberty” protects a particular right. Second, we examine whether the right at issue in this case is rooted in our Nation's history and tradition and whether it is an essential component ofwhat we have described as “ordered liberty.” Finally, we consider whether a right to obtain an abortion is supported by other precedents."
COMMENT: No analysis of whether babies are people? What else can matter? Isn’t that dispositive? Yes it is. Mississippi grounded its defense on this fact. SCOTUS thinks it can ignore the only fact that matters, against which these three inquiries are irrelevant.
Page 29: Past judges knew "It's a Baby"
"There is ample evidence that the passage of these laws was instead spurred by a sincere belief that abortion kills a human being. Many judicial decisions from the late 19th and early 20th centuries made that point."
COMMENT: Individual judges, along with state legislatures, are court-recognized fact finders. What SCOTUS should now do is establish whether this “sincere belief” is fact.
"One may disagree with this belief (and our decision is not based on any view about when a State should regard pre-natal life as having rights or legally cognizable interests), but even Roe and Casey did not question the good faith of abortion opponents. See, e.g, Casey, 505 U.S, at 850(“Men and women of good conscience can disagree... about the profound moral and spiritual implications of terminating a pregnancy even in its earlicst stage.”). And we sec no reason to discount the significance of the state laws in question based on these amici's suggestions about legislative intent."
COMMENT: Roe and Casey, and now Mississippi, said “we cannot tell”. We cannot tell if babies of people are people, so we will let states decide how they “strongly feel” about killing them.
Page 30: You can believe lies but can't murder based on them
"Casey contend that the abortion right is an integral part of a broader entrenched right. Roe termed this a right to privacy, 410 U. S,, at 164, and Casey described it as the freedom to make “intimate and personal choices” that are“central to personal dignity and autonomy,” 505 U.S, at 851.Casey elaborated: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Id., at 851.
"The Court did not claim that this broadly framed right is absolute, and no such claim would be plausible. While individuals are certainly free to think and to say what they wish about “existence,” “meaning,” the“universe,” and “the mystery of human life,” they are not always free to act in accordance with those thoughts. License to act on the basis of such beliefs may correspond to one of the many understandings of “liberty,” but it is certainly not “ordered liberty.”
COMMENT: Exactly. Americans have “liberty” to believe lies. But we don’t have liberty to murder each other in accord with our superstitions. Moslems don’t get to murder Christians and Jews. Moslems and Mormons don’t get to have four wives. Natives don’t get to smoke Peyote. (Employment Division v. Smith).
But to the extent courts say “we cannot tell” whether babies are people, so murdering them is OK for people who “strongly believe” they are not, then indeed murderers, rapists, terrorists, criminals of every kind may act according to their warped view of reality with no legal consequences. Limited only by the attachment of courts and voters to their nostalgia of when America used to be ruled by law, and law was under some pressure to match reality.
Page 31: Voters should decide about murdering babies
"Ordered liberty sets limits and defines the boundary between competing interests. Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed “potential life." Roe, 410 U.S. at 150; Casey, 505 U. S., at852. But the people of the various States may evaluate those interests differently. In some States, voters may believe that the abortion right should be more even more extensive than the right that Roe and Casey recognized. Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an “unborn human being” Miss. Code Ann. §41-41-191)F). Our Nation's historical understanding of ordered liberty does not prevent the people's elected representatives from deciding how abortion should be regulated."
COMMENT: Yes it does. aborticide is in fact the murder of people. If courts are still “unable to speculate” whether an entire “invidious class” of human beings are really people, AND WON’T EVEN ACKNOWLEDGE THE IMPORTANCE OF DOING SO, whose rights are safe?
"The Constitution does not take sides on the issue of abortion"
Kavanaugh's Concurrence, Page 2:
"The issue before this Court, however, is not the policy or morality of abortion. The issue before this Court is what the Constitution says about abortion. The Constitution does not take sides on the issue of abortion....On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice."
COMMENT: The constitution DOES protect “equal protection of the laws” and what courts call “fundamental rights”. Our laws prohibit murder. Not even for the noble purpose of enhancing a mother’s economic advancement. A defense for murder is not “but I had to kill him, in order to make myself rich.” Life, Liberty, Pursuit of Happiness, listed as fundamental rights in the Declaration of Independence.
The only sense in which the Constitution is silent on abortion is that it does not specifically tell us that unborn babies of humans are humans – unless we count benefit to our “posterity” being one purpose of the Constitution according to its preamble – but that is only because 50 years ago, every idiot already knew that.
Judges can't decide for voters about murder
From Kavanaugh's Concurrence, Page 3:
"The nine unelected Members of this Court do not possess the constitutional authority to override the democratic process and to decree either a pro-life or a pro-choice abortion policy for all 330 million people in the United States."
COMMENT: If courts must be silent on murder, what crime is enough greater to merit their involvement? Slavery is surely a lesser crime than dismemberment, so if people in “blue states” should vote on whether they can murder, let’s let people in Southern states vote on whether to have slaves!
Roe's mistake was taking issue from voters
From Kavanaugh's Concurrence, Page 3:
"Instead of adhering to the Constitution’s neutrality, the Court in Roe took sides on the issue and unilaterally decreed that abortion was legal throughout the United States up to the point of viability (about 24 weeks of pregnancy)."
COMMENT: Roe justified its legalization of aborticide by pretending judges can’t tell if babies of humans are humans – a sophistry no longer believable if it ever was.
Roe's crime was not in taking the balancing of babies' and moms' interests away from voters, but in doing so while professing to be "in no position to speculate" whether babies were even humans with any "interests" worth balancing! When judges profess greater ignorance than that of children, they should not claim to know better than state legislatures! But in this day when whole state legislatures pretend they do a great service by slaughtering their own children, any adults left in the judiciary need to step forward.
It's "wrong" to rule that murder be outlawed in EVERY state
From Kavanaugh's concurrence, Page 3:
"Some amicus briefs argue that the Court today should not only overrule Roe and return to a position of judicial neutrality on abortion, but should go further and hold that the Constitution outlaws abortion throughout the United States. No Justice of this Court has ever advanced that position. I respect those who advocate for that position, just as I respect those who argue that this Court should hold that the Constitution legalizes pre-viability abortion throughout the United States. But both positions are wrong as a constitutional matter, in my view. The Constitution neither outlaws abortion nor legalizes abortion.
"...Today’s decision therefore does not prevent the numerous States that readily allow abortion from continuing to readily allow abortion. That includes, if they choose, the amici States supporting the plaintiff in this Court: New York, California, Illinois, Maine, Massachusetts, Rhode Island, Vermont, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Michigan, Wisconsin, Minnesota, New Mexico, Colorado, Nevada, Oregon, Washington, and Hawaii. "
COMMENT: Interesting. I wish a footnote told which amici said that. None did that I read - I read about the first half as they came in. Kavanaugh’s reasoning here is oblivious of the only compelling REASON for not killing babies: because they are people. That fact, established, makes this paragraph see callous at best and satanic in its regard for human life at worst.
Baby killers base their "right" to murder on their right to Liberty
From Justice Thomas's concurrence, Page 1:
"I join the opinion of the Court because it correctly holds that there is no constitutional right to abortion. Respondents invoke one source for that right: the Fourteenth Amendment’s guarantee that no State shall “deprive any person of life, liberty, or property without due process of law.” "
COMMENT: Surreal, that anyone could assert a right to their “liberty” to murder babies from the same sentence that guarantees those same babies a right to “Life”! Also surreal, that Thomas does not mention this irony, or mention at all the right to life for babies which abortion can’t be allowed to snuff out!
The 14th Amendment doesn't protect any "fundamental right" to life, but only requires murderers to follow the correct procedures
Is that Justice Thomas' position?! He writes in his concurrence, Page 1-4:
" “due process of law” merely required executive and judicial actors to comply with legislative enactments and the common law when depriving a person of life, liberty, or property....the Due Process Clause at most guarantees process. It does not, as the Court’s substantive due process cases suppose, “forbi[d] the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided.”....
Before we look at more of Thomas' explanation of the 14th Amendment, here is the Amendment he is talking about:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
(That's "Section One." #2 is about using the census to determine how many Congressmen each state gets. #3 says you can't be a Congressman or a military officer again if you were before but then rebelled against the U.S. #4 says anyone who loaned money to the South to help them rebel during the Civil War won't be paid back by the U.S.)
I wish I could ask Justice Thomas if he has thought about Section Five, which says "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." He says individual states, not courts, should have the only authority to "flesh out" the rights listed in the Amendment. Doesn't #5 give this power solely to Congress? Orignally the purpose of the Amemendment was to stop Southern states from bringing back slavery, so the obvious purpose of #5 was to make sure any stretching of 14th Amendment rights was not going to be done by any state. Courts have ignored #5, thinking themselves the sole power, which Thomas condemns, but his condemnation is of any stretching at all. Section Five sure seems to allow "fleshing out" of rights, but by Congress only.
That should be a critical part of courtroom arguments by prolifers, because Congress has ruled that unborn babies are "members of the species homo sapiens, at every stage of gestation". 18 U.S.C. 1841(d). Isn't that a "textbook example" of Congress exercising its Section Five authority to "flesh out" the right to "Life" to specify application to unborn babies?
"“The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.” ....
COMMENT: In other words, this Amendment doesn't stop state legislatures from taking away "life, liberty, or property", but only requires that when states do so, they have to spell out a "process" in law.
Applied to the right to get an abortion of your baby, Thomas means courts have no business defining "liberty" as stretching all the way over a right to kill your baby. Legislatures can stretch liberty that far if they want to, but all courts can do is make sure the "process" for killing babies is clearly spelled out in law.
By this reasoning Thomas agrees Roe v. Wade must be overturned so states can individually decide whether to keep murdering babies.
The big glaring problem with Thomas' reading of the Amendment is that it would allow states to stretch "liberty" all the way over owning slaves, so long as state laws spell out the "procedures" of buying, selling, and owning slaves.
Slavery is a lot less violence against human rights than dismemberment.
But the 14th Amendment was passed for the purpose of helping forever end any right of any state to legalize slavery.
Here is more of Thomas' explanation:
"Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion....
"Substantive rights" are rights not spelled out in the Constitution, such as the past "right" to abortion created by Roe v. Wade, or in the right to "marry" another of your sex created in Obergefell v. Hodges. Thomas courts have no business stretching rights "enumerated" in the Constitution beyond what is clearly "enumerated".
I certainly agree it is quite a stretch of "liberty" to allow states to legalize baby murder, and sexual abominations which are so filthy that sodomites get mad at you for describing them, which for such reasons spread terrible diseases and shorten lifetimes about twice as much as smoking.
But don't these Thomas quotes say courts can't protect ANY rights - not just stretched imaginary rights but real enumerated Constitutional rights - from being violated by states so long as laws spell out a "process"?
It is no stretch to see that the right to "liberty" is violated by legalizing slavery. Nor is it any stretch to see that the right to "Life" is violated by legal aborticide.
More Thomas explanation:
" “substantive due process exalts judges at the expense of the People from whom they derive their authority.”....
" the Court’s approach for identifying those “fundamental” rights “unquestionably involves policymaking rather than neutral legal analysis.” ....
"The Court divines new rights in line with “its own, extraconstitutional value preferences” and nullifies state laws that do not align with the judicially created guarantees...."
COMMENT: Interesting. I’ve read several cases where the court’s allowance of a law turned on whether any infringement of any “fundamental right” was for a “compelling government purpose” and which achieved that purpose in fact, and by the “least restrictive means possible”. Thomas sides with those who reject Court jurisdiction over such “fundamental rights” cases.
I, along with conservatives in general, lament SCOTUS sticking its big hairy nose into so many moral issues and screwing up our whole society, and Thomas here identifies the courts' legal justification for its usurpation.
But does Thomas retreat too far from judicial responsibility? How literally does he mean that "the Due Process Clause at most guarantees process. It does not...forbi[d] the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided"?
"“due process of law” merely required executive and judicial actors to comply with legislative enactments and the common law when depriving a person of life..."???
So if a state wants to legalize murdering, for example, "illegals", without violating the 14th Amendment, all it needs to do is spell out in law the process by which it is to be done?
Is that seriously what Thomas promotes?
I presume he didn't mean to, but that seems to be the unintended consequence of him leaving babies' interests out of the balance with moms' interests. He rightly reasons that courts have no constitutional authority to stretch "liberty" all the way over "liberty to murder your baby". It just seems to escape him that babies are a "classification" of human beings whose murderers no state can be allowed to protect, no matter how much "due process" murderers must first satisfy.
Were this not so, slavery would still be legal. Southern states had all the "due process" any lawyer could want, governor their sale, ownership, and treatment of slaves. Yet for all that "due process", the 13th Amendment made slavery illegal, and the "equal protection of the laws" in the 14th Amendment closed the loopholes which southern states exploited in the 13th.
Thomas' concurrence goes into wonderful detail about the misuse of the "substantive due process" theory, which conservatives will do well to study and act upon.
Certainly Thomas is right to reject "liberty" as elastic enough to cover a right to murder babies. But he needs - America needs - to address the fact that babies are people, dismembering them is murder, whose blood no amount of "due process" can cleanse. No stretching is necessary to make the Amendment's protection of "life" cover innocent babies.