Ruling in Dobbs v. Jackson Women's Health, the majority opinion declared that "The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives." Pro-abortion activists have taken to the streets, incited, it seems, by media spin suggesting that abortion in the nation is over and that every pregnancy must now be carried to term. But just how accurate is this assessment?
Liberty Nation's managing editor, Mark Angelides, spoke with Legal Affairs Editor Scott D. Cosenza to dispel the hype surrounding this opinion and ask what America will look like beginning today and going forward.
Mark Angelides: Scott, let's cut to the heart of the matter here. Despite the protestors – whether they be street activists or sitting presidents – the Supreme Court didn't ban abortion in the United States. Why are so many people so eager and ready to believe that it did?
Scott D. Cosenza: This ruling returns abortion regulation over to the states. Some states will have very liberal abortion laws under this, and some very strict prohibitions on the procedure. Perhaps it's just the ignorance of nuance. More cynically, it may benefit some actors by making the worst possible case so they can sell the most lifeboats. Finally, some people who live in states where this procedure will be next to impossible to procure believe it's a necessary medical service for women. For them, it is just as bad as a full-on ban.
MA: With Joe Biden and the DOJ decrying this ruling, do they have a legal position to take? Or is their "fire and fury" more likely for soundbites and fundraising?
SDC: I suppose they could try to bring cases that will somehow narrow this ruling. Precedents, once set, are often expanded or contracted, so that is possible, but the margin for change seems fairly small at this time.
MA: The president made a point of saying that any efforts to stop women from traveling out of state to get an abortion would be met with the full force of the federal government. Again, I see this as a straw man. I follow the news very closely and have yet to hear a single politician suggest this is an option they are considering. It's so far beyond the realm of possibility that for Joe Biden to say this is his red line, isn't that just bluster because essentially, his side of the argument lost?
SDC: When I saw that statement, it read to me like the words of someone struggling to project power in the face of impotence. It's a bad look to say, "We got kicked in the teeth, and there's absolutely nothing we can do about it."
MA: Does the Court’s opinion in Dobbs differ much from the version Politico leaked and published on May 2nd?
SDC: The leaked version was labeled “1st Draft” and dated February 10th. Justice Alito did not make significant changes to the leaked draft. For example, he did not alter key passages identifying the reasons why Roe is now overturned. However, Alito did add to the draft we saw from the leak by about 12 pages. These include arguments addressing the liberals’ dissent and the concurrence written by Chief Justice Roberts. To the extent that the leaker was hoping to see a change in Alito’s opinion or the vote count in the case, they seem to have failed.
MA: Is the Court's opinion now the law of the land? And if so, how immediate is the rollout likely to be?
SDC: Yes, it became the law of the land the moment it was published Friday morning. Prohibitions on state regulations of abortion under Roe are now removed. Some states, including Oklahoma, Arkansas, and Missouri, now have active abortion bans in place. Other states will change their laws as a result of the decision, some to further restrict legal access to abortions, and some to increase such access, through public funding, for instance, or by allowing non-doctors to perform the procedure.
MA: From a state's rights point of view – or even from a "protect our democracy" position – isn't sending lawmaking back to the states a positive move? I mean, the US is 50 experiments in governance; and this is a great example of allowing voters to be able to make a decision of impact where they live.
SDC: It would be better if incorporation of the Bill of Rights against the states were itself a constitutional amendment rather than judicial made policy and law. That said, I can't imagine answering yes to your question if the issue was free speech rather than abortion. I think the answer depends on whether you believe it's a fundamental right.
MA: Do you think that part of any upcoming campaign platform from the Democrats might include either expanding or "repurposing" the role of the Supreme Court?
SDC: Some prominent congressional Democrats were for that before these rulings on abortion and gun control. The calls for packing the court are sure to grow in the near term.
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