The US Supreme Court decision Roe v Wade decision wrongly imposed federal law on states. The US Supreme Court decision in Dobbs v Jackson Women’s Health Organization wrongly over-ruled Roe. Do two wrongs make a right? Nope. They just make two wrongs.
My Constitutional Law professor drove me nuts. He said over and over and over that the issue in every case was, “Who decides?” I was so tired of hearing that! After law school, when I went out into the Real World, I realized… he was right.
Roe vs Wade was wrongly decided. Nine unelected men, who do not live, work or vote in Texas, have no right to decide who can get an abortion in Texas. It’s Not… Their… Call. Only the State of Texas can decide whether/how a pregnant woman can get an abortion in the state of Texas. Not the US Supreme Court. Not Congress. Not the President. Not any other state.
We’re a Republic. That means the states decide some things; the federal government decides other things. As a Republic, under the US Constitution, the states decide everything that is not expressly delegated to the federal government. Said differently: UNLESS a power has been expressly delegated by the states to the federal government, then that power is NOT delegated to the federal government; it is retained by the states. The US Constitution makes that crystal clear.*
Nowhere in the Constitution is the power delegated to the federal government to decide whether to allow or restrict abortions. So, who decides? The state decides, not the feds. A plain reading of the US Constitution reveals that. No signor of the Constitution would have signed the document, if they knew the document would give the federal government the power to say every state must allow abortion.
The Roe case is not all wrong; it is half right and half wrong. Roe correctly holds that the only person, who can decide whether a pregnant woman can get an abortion, is the pregnant woman. She can consult with others, her doctor, her God, her neighbor, her hairdresser… It’s her call. Roe got that right.
However, the question of whether Roe could get that abortion in Texas is not her decision. Only the State of Texas decides that.
If the Supreme Court wrongly decided Roe v. Wade, the Supreme Court must have correctly decided Dobbs v. Jackson Women’s Health Organization, right? Wrong! Once the Supreme Court decides what the Constitution means, then that’s what it means. This is the principle called stare decisis, a Latin term meaning, “already decided.” As much as possible, we want to Supreme Court to be above partisan politics, so Supreme Court opinions don’t change when the judges change. Otherwise the Supreme Court goes back and forth depending on the prevailing politics. That’s very bad for the integrity of the Constitution and Supreme Court review of the Constitution.
That’s what wrong with the Dobbs case. The judges changed, so the law changed. That demeans the Supreme Court. To hold differently mean the Dobbs case is only the law until a new majority overturns Dobbs and re-instates Roe. That’s not the way the Supreme Court was designed to operate for very good reasons.
What should happen when the Supreme Court makes a mistake, like it did in Roe v Wade? Do we live with the mistake forever? Not necessarily. The Constitution can be amended by the people. It’s an involved process, as it should be, but there’s a process. It can happen quickly or slowly. It took more than a century to enact the 27th amendment. The 26th amendment took about four months start to finish.
Perhaps the worst Supreme Court decision in the history of Supreme Court decisions was Dred Scott v. Sandford, where the Justices unanimously decided that no black person, slave or free, could EVER be a citizen of the United States. We The People collectively said, “If that’s what the Constitution says, then we’ll change the Constitution.” And, we did. That’s the way it’s supposed to work.
So, who decides? Pregnant woman decides whether to have an abortion. Each state decides whether/how she can have an abortion in their state. Supreme Court decides what the Constitution means now. We the People decide what is means next.
Each state sorts out their own laws, and we the people of the USA sort out whether the Constitution should be amended. I pray that we can recognize that good people can have strong, passionate, and differing opinions about what the laws in a state should be. Everything works like it should under the Constitution when we follow the laws. Nothing works like it should when we don’t.
No violence or intimidation. No improper redistricting or gerrymandering. No voter suppression. Just good clean political “process” where both sides accept the political decision. If you don’t like it, work within the laws and political process to change it… or move to a state with laws you like.
Our national motto is E Pluribus Unum. “Out of many, One.” Out of many diverse states, comes one nation – The Republic of the United States of America. We don’t have to all have the same opinion. We don’t require uniformity, but we are united. It is why “the consent of the governed” works… for us… for everyone.
* “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” says the Tenth amendment, in the original Bill of Rights to the original US Constitution.
