Opinion: Constitution Update Required by Bob Moores

As most people who follow the abortion issue know, the draft of a majority opinion authored by Supreme Court Justice Samuel Alito to overturn Roe v. Wade [1973] was revealed by Politico on 2 May. The decision is in response to a challenge of a Mississippi Law enacted in 2018 called Dobbs v. Jackson Women’s Health Organization.

In his draft, Judge Alito describes the job before the Court:

“The State of Mississippi asks us to uphold the constitutionality of a law that generally prohibits an abortion after the fifteenth week of pregnancy – several weeks before the point at which a fetus is now regarded as ‘viable’ outside the womb. In defending this law, the State’s primary argument is that we should reconsider and overrule Roe and Casey and once again allow each State to regulate abortion as its citizens wish. On the other side, respondents and the Solicitor General ask us to reaffirm Roe and Casey, and they contend that the Mississippi law cannot stand if we do so. Allowing Mississippi to prohibit abortions after 15 weeks of pregnancy, they argue, ‘would be no different than overruling Casey and Roe entirely.’ They contend that ‘no half measures’ are available and that we must either reaffirm or overrule Roe and Casey.”

Note: Casey [1992] modified Roe, but reaffirmed most of it by holding that stare decisis (precedent) should be respected in most cases.

Judge Alito summarizes the majority opinion:

“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely – the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition.”

“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It’s 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. That is what the Constitution and the rule of law demand.”

My opinion of Judge Alito’s opinion:

He is right in saying “Even though the Constitution makes no mention of abortion, the Court held [in Roe] that it confers a broad right to obtain one.” Here I note Judge Alito’s reference to the Due Process and Equal Protection clauses in Section 1 of the Fourteenth Amendment:

Amendment 14, Section 1

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.

Judge Alito is also right when he says that because the Constitution does not explicitly address abortion, Roe was weakly reasoned, and that the Court is being asked, in effect, to make the law. That endeavor, called “judicial activism”, is not the job of the Court. But couldn’t a future court conclude that Dobbs, because it refers to language that must be “interpreted”, is also weakly reasoned?

Alito is wrong if he thinks that punting the ball back to the States is going to lessen our “enflamed debate” and “deepened division” on abortion. The rancor will get worse, not better. If abortion is of national importance, it should not be left to the States to do as they please, otherwise, slavery might still be legal in some.

The Court’s reputation is taking another hit. It already contains five justices who implied or explicitly stated in their confirmation hearings that they supported Roe. Now we find they were, in their job interviews, less than truthful.

The best solution is a Constitutional amendment clearly delineating the law regarding abortion (same for LGBTQ and privacy rights). That would remove the Court’s need to opine. We need a federal law on abortion, not a hodge-podge of state laws that run from no abortions under any circumstances to the opposite. But an amendment requires a two-thirds majority of both houses of Congress, and with the Congress we have today, passionately divided along ideological lines on social issues, that is not a possibility.

So, we are stuck. It looks like abortion is going back to the states. There it will remain unless or until abortion becomes a national priority for voters.

Another Amendment, the Second, is out of touch with modern reality. It simply says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” This statement consists of an explanatory part followed by a declarative part, the latter being dependent on the former. The right of the people to keep and bear arms seems to be addressing the need for security provided by a well-regulated militia, does it not? Intent (a.k.a. mindreading) of the Second Amendment has been ruled upon four times by the Court, but the original wording has not changed.

When the Second Amendment was ratified in 1791, the most destructive “Arm” bearable by a person was a single-shot, muzzle-loading pistol or rifle. Did Madison, in his wildest dreams, envision mentally-ill citizens using rapid-fire, multi-shot pistols and rifles to murder their neighbors? To illustrate the ridiculous limit of the vagueness of “Arm”, the Second Amendment does not preclude citizens from bearing thermonuclear devices. It seems to me that the Second Amendment is in dire need of revision.

Bob Moores retired from Black & Decker/DeWalt in 1999 after 36 years. He was the Director of Cordless Product Development at the time. He holds a mechanical engineering degree from Johns Hopkins University