ROE V WADE

 Take a deep breath. Relax. Whichever side of this issue you are on, we will walk you through it. 

Sun Tzu wrote "If you know yourself and your enemy, you need not fear the result of 100 battles."

Abortion opponents knew themselves and their opponent (The decision in Roe). They were destined to overturn Roe because, if you read Roe and understand Roe,  Roe was deeply flawed not in what it decided but how it was decided. It is not the type of decision and constitutional reasoning you want replicated in Supreme Court jurisprudence. The opponents of Roe knew this days after it was decided.

To understand this, you have to separate social decisions you believe are "right" from correct legal reasoning and jurisprudence. There are a myriad of wrongs you may want to address. Childhood hunger; homelessness; universal health care. Sounds good right? Even utopian. 

Now if you are in favor of abortion, know your enemy (see Sun Tzu above). The people who hold opposite views may also truly and deeply believe the United States is a Christian nation; that every day in school should start with a prayer to Jesus Christ; that people should be allowed to carry sidearms everywhere they go; that taxes should be lowered to the point where there is no welfare or unemployment insurance; that people should be in charge of planning for their retirement not the government, so end social security. 

How do you want those very different view points of deeply held belief resolved? By popularly elected legislators or judges appointed for life and answerable to no one but their own conscience and views? 

Now lets look at Griswold v. Connecticut. In order to find the right to buy contraception and strike down a Connecticut law prohibiting the sale and use of contraception, the court had to find a right to privacy in the constitution. Where did Justice William O Douglas find a right to privacy? In the "Penumbra" and "emanations" of the Constitution. In other words, in the shadows and some type of pulses that he was able to discern. How did he discern what lay in the shadows? Did he have special glasses? Or a special insight others lacked? No. Douglas just wanted to find a right to privacy, and since it wasn't written in the Constitution, but he believed in the result being right, he just found one. Douglas wrote :"Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship"

Do you see what Douglas did? He found something repulsive, and wrote that it must be wrong and if it's wrong there must be something in the Constitution prohibiting it. In other words, his personal sensitivities offended, Douglas wrote for a court and legislated away a wrong with a right they created by finding it in the shadows of the bill of rights. 

Hurray for Douglas and Griswold. We can now buy contraception and we have a right to privacy. BUT.... Douglas and Griswold set the stage for other judges, generations later to find what they would want to find in the Constitution. A right to carry firearms everywhere. A right not to be taxed for welfare or social security. A right to have a picture of Jesus Christ in every school room and every courtroom. The imposition of the death penalty in a myriad of non-murder cases. 

If you live by the sword you die by the sword. If you live by judicial decisions on what individual judges feel is right, then you die by it. If you are a "liberal" do you really want Trump appointed judges "finding" in the Constitution rights that they see in the shadows the way Douglas did? Think about that. 

Which brings us to Roe. Read Justice Alito's decision in Dobbs. His criticism of Roe is inexorably correct. And the decision "upholding" Roe-  Planned Parenthood v. Casey- did most of the work for Dobbs majority- barely upholding Roe, but abandoning it's flawed reasoning. Proponents of Roe cheered Casey for saving Roe, but they were whistling past the graveyard- cheering the result and ignoring the reasoning. Alito did not ignore the reasoning of Casey, which set the stage for Dobbs. 

If you really want to understand Dobbs, read Thomas's concurring opinion attacking the substantiative rights found in the fourteenth amendment. When you read Thomas's concurrence, keep saying to yourselves "if they can do that- if they can find that right- what else can they do?" See Wickard v. Filburn- upholding a law during WWII that a farmer cannot use the wheat he has grown to feed his own animals. Thomas is not attacking same sex marriages, but Roe proponents think he is. Thomas is attacking the way Obergefell v. Hodges found that right- hiding somewhere in the shadows of the fourteenth amendment. Which case does Obergefell cite? Griswold of course. 

What is implicit in the holding in Dobbs is that Alito and Thomas are saying "are you really sure you want to put your future and wellbeing in the hands of judges who may or may not think the way you do?" Think of your least favourite Judge. Do you want them finding something in the shadows of the Constitution? 

We understand that social impact of Roe and overturning Roe. Should social impact be a part of constitutional jurisprudence? "We cannot find the right to eliminate hunger in children, but everyone agrees it is abhorrent so henceforth a child has a right under the constitution not to ever be hungry..."  Which leads to:  "We cannot find the right of the government to help people prepare for retirement, henceforth social security is held to be unconstitutional..." 

The opponents of Roe took the time to deeply understand the decision, and exploited its flaws. The proponents of Roe simply said  and continue to say "The decision that a woman has the right to make decisions about her own body is right. It must be right, no matter how that decision was reached." See Griswold v. Connecticut. 

Dobbs takes Roe down on the WAY the decision was reached. As of Saturday morning, the proponents of Roe are just demonstrating that the result in Roe was right. They care not how it was reached. This is a roadmap for a future of unending losses for the proponents of Roe.

They know neither their enemy nor themselves and as Sun Tzu wrote : "If you know neither yourself not your enemy you will succumb in every battle."