OBJECTIONS TO DOBBS V. JACKSON (OVERRULING ROE V. WADE) ON FIRST PRINCIPLES
(Here is an attempt to counter certain primary arguments in the United States case Dobbs v. Jackson (the case which overruled Roe v. Wade). The exercise is to attack them on first principles and not so much on precedents.)
1. Case of Democratic Process
"Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided. Casey perpetuated its errors, calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe."
Argument against Point 1: Rights should not be overruled by majoritarianism. Rode and Casey cemented a right and in doing so, laid down a precedent. To make the rights of individuals subservient to the will of the majority, as per the elected representatives of individual states, is not the object of the democratic process.
It will be absurd that some states will have the right to abortion while some will not. Moreover, the nature of such rights can change by the elections. What Roe and Casey did was to bring uniformity in the law, which should be brought in such laws affecting individuals' bodies.
2. State Morality in Rational Basis Review
"Rational-basis review is the appropriate standard to apply when state abortion regulations undergo constitutional challenge. Given that procuring an abortion is not a fundamental constitutional right, it follows that the States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot “substitute their social and economic beliefs for the judgment of legislative bodies.”
Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority."
Argument against Point 2: Even if the view that the right to abortion is not a fundamental constitutional right is conceded to, by the ‘moral question’ argument, the Court is unfairly superseding the concept of state morality (which could be changed by elected representatives) over individual rights of women over their bodies.
Principally, this moral question argument can be conveniently stretched to same-sex relationships and gender reassignment surgeries, where each state can be given the right to make its own set of laws on these issues.
The Fourteenth Amendment states:
"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."
The immunities provided to US citizens by the right to abortion are manifestly infringed by anti-abortion laws and come under the scope of the fourteenth amendment.
3. History and tradition
"Next, the Court examines whether the right to obtain an abortion is rooted in the Nation’s history and tradition and whether it is an essential component of “ordered liberty.” The Court finds that the right to abortion is not deeply rooted in the Nation’s history and tradition. The underlying theory on which Casey rested—that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for “liberty”—has long been controversial….…For this reason, the Court has been “reluctant” to recognize rights that are not mentioned in the Constitution."
Argument against Point 3: There are multiple rights that are not written in the Constitution but later read into one of the rights (e.g. privacy, voting). Society changes with time and so does the nature of rights guaranteed by the constitution. For instance, the Right to Speech, in its inception, did not include writing a post on the internet but today it constitutes an essential component of free speech. With the changing nature of American society, characterized by pre-marital sexual relationships and unwanted pregnancies (including those from rapes and incest), the right to abortion shall come squarely under ‘protection for liberty’ and ‘right to privacy.’
The over-reliance of Courts on history and tradition, which is manifestly made on the basis of the needs of the contemporary society is deeply problematic.
"Calling a fetus an unborn baby is the same as calling a braindead human, an undead corpse. 100% Technically true but 100% does not make sense when applied to reaal life situations (can you donate a brain-dead person to the medical community for research purposes?)."
Comments
Post a Comment