Dismantling Roe by Onkar Ghate

Supreme Court Decision on Abortion

The Supreme Court overturned a New York state law that violated the individual's right to keep and bear a handgun. The next day, the court ruled that it is permissible to force a woman to carry a pregnancy to term, claiming that this is what fidelity to the U.S Constitution demands.

Abortion in a Free Society

• Most abortions occur in the early stages of pregnancy and are not fraught with moral anxiety.

• Terminating a pregnancy is part of pursuing happiness for women or couples.

• If someone is against abortion, they should not have one.

• In a free society, people can try to persuade others but must allow them to go their separate ways if they do not succeed.

Dismantling Roe v. Wade

• There are three important Supreme Court decisions on abortion: Roe v. Wade (1973), Planned Parenthood v. Casey (1992), and Dobbs decision (2021).

• The Dobbs decision overturned both Roe and Casey, focusing more on overturning Roe as it was the more important decision.

• The Roe decision was a good decision as modern Supreme Court decisions go, but it has been dismantled by recent rulings.

The Roe v. Wade Decision

This section discusses the Roe v. Wade decision and its analysis of whether a fetus is a person from the perspective of the law and constitution.

Fetus as a Person

• The Roe v. Wade decision analyzed whether a fetus is a person from the perspective of the law and constitution.

• The answer was no, as the fetus is not a separate person with rights of its own.

• The decision connected abortion to liberty, which is in the constitution both in the preamble and amendments such as the 14th amendment.

State Interests

• The state has some interest in pregnancy, including maintaining good medical standards and maternal health.

• In effect, this viewpoint is paternalistic, where later in pregnancy, abortion becomes riskier medically, so it's supposedly up to the state to regulate it.

• There's also an interest in potential life that becomes compelling in the third trimester.

Tug of War Analysis

• There's a tug-of-war between balancing women's right to an abortion with state interests such as maintaining maternal health and medical standards and potential life.

• The reasoning behind this analysis is that there's an undeveloped being at first, so there isn't much interest until later when it grows more compelling.

• In effect, during the first trimester, it's just between woman and doctor; during second trimester, state enters with super strong interest; during third trimester, compelling interest trumps rights.

Pre-viability and Post-viability Analysis

This section discusses the two-part analysis of abortion rights, pre-viability and post-viability.

State Interest in Pre-Viability

• The state interest in potential life is significant but not compelling.

• The state's interest in maintaining proper medical standards and the woman's health is also present.

• However, the woman's right to abortion is dominant during this period.

State Interest in Post-Viability

• Once viability is reached, the state's interest in maternal health and potential life becomes significant.

• The state can prohibit abortion with exceptions for the life or health of the mother.

Dobbs Decision

This section discusses how the Dobbs decision attacks Roe v. Wade by changing the state's interest in a fetus from post-viability to conception.

State Interest Dominates from Conception

• In Dobbs, the state's interest in a fetus dominates from conception.

• The woman's right to abortion disappears with no constitutional protection.

Privacy and Lochner Decision

This section explains why Roe v. Wade grounded abortion rights on personal liberty and privacy due to concerns about Lochner decision.

Grounding Abortion Rights on Personal Liberty and Privacy

• Roe v. Wade grounded abortion rights on personal liberty and privacy.

• This was due to concerns about Lochner decision which allowed restrictions on freedom of trade and contract.

Overturning of Lochner Decision

This section explains how the overturning of Lochner decision led to a focus on personal liberty and privacy in Roe v. Wade.

Overturning of Lochner Decision

• The overturning of Lochner decision took away the right to freedom of trade and contract.

• This was the Supreme Court's gutting of rights in the modern 20th century.

Focus on Personal Liberty and Privacy

• Due to concerns about Lochner decision, Roe v. Wade focused on personal liberty and privacy.

• The moment you walk out your front door, your constitutional rights are at risk.

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The Principle of Liberty and the Right to Privacy

This section discusses the meaning of the principle of liberty or the right to liberty, which is what Roe v. Wade appeals to.

What Does the Right to Liberty Mean?

• The majority opinion in Roe v. Wade focuses on what the right to liberty means.

• However, they conclude that "the term liberty alone provides little guidance" and that there are over 200 different senses in which it is used.

• They warn against injecting subjective preferences into law like previous judges did with freedom of contract.

• Instead, they want to figure out what our ancestors' views were on liberty.

Historical Perspective on Liberty

• Isaiah Berlin reported that historians have catalogued more than 200 different senses in which the term "liberty" is used.

• The court must ask what the 14th Amendment means by "liberty."

• However, instead of focusing on historical perspectives, the decision has a myopic focus on abortion.

Conflicts Between History and Tradition with Principles of Liberty

This section discusses how history and tradition may conflict with principles of liberty.

Conflicts with Principles of Liberty

• The majority decision exhibits no awareness that our history and traditions may conflict with principles of liberty or the right to liberty.

• After slavery and civil war, there should be a question about whether our history conflicts with principles of liberty.

Abortion and the Constitution

In this section, the speaker discusses the Supreme Court's recent decision in Dobbs v. Jackson Women's Health Organization, which upheld a Mississippi law that bans abortions after 15 weeks of pregnancy. The speaker argues that the decision is wrong both in its reasoning and its conclusion, and that it reinforces prejudices against women in our history and tradition.

History and Tradition

• The laws on abortion have historically reflected the idea that abortion after quickening is not allowed.

• Our history and traditions may not reflect a right to abortion because women were treated as second-class citizens who did not have control over their lives.

• The majority opinion in Dobbs does not address this issue, but the dissent rightly brings it up.

• Alito adds a section to his majority opinion addressing this issue, but his arguments are unconvincing.

Discrediting the Constitution

• The majority opinion reinforces prejudices against women in our history and tradition, which discredits the Constitution.

• People who reject the Constitution may have an argument if they are told to interpret it according to these prejudices.

Vulnerabilities of the Decision

• The decision is vulnerable on First Amendment grounds because it injects religion into its content.

• The decision is vulnerable on equal protection grounds because it treats women as second-class citizens.

Overall, the speaker argues that Dobbs v. Jackson Women's Health Organization is egregiously wrong both in its reasoning and its conclusion. The decision reinforces prejudices against women in our history and tradition, which discredits the Constitution. Additionally, there are vulnerabilities in the decision on First Amendment and equal protection grounds.

The State's Interest in Potential Life

This section discusses the lack of discussion on the state's interest in potential life in Roe v. Wade and Casey v. Planned Parenthood.

Lack of Discussion on State's Interest

• There is almost no discussion of the state's interest in potential life in Roe v. Wade and Casey v. Planned Parenthood.

• Justice Stevens questions the justification for the state's interest, stating that it has never been justified by the states themselves.

• The state may want to minimize offense or expand population, but this isn't a Supreme Court decision about the power that the state has.

Dismantling Roe: Step One

This section discusses step one towards dismantling Roe, which is declaring that a woman has no right to abortion.

Step One: Woman Has No Right to Abortion

• Activists have been trying to abolish the right to abortion since Roe.

• Step one towards dismantling Roe is declaring that a woman has no right to abortion.

• The Dobbs majority decision telegraphs that they will invite cases regarding whether a fetus has a right to life.

• The majority opinion doesn't recognize that a fetus is not entitled to rights under U.S. Constitution.

Dismantling Roe: Step Two

This section discusses step two towards dismantling Roe, which is enshrining the fetus with rights.

Step Two: Fetus Has Right to Life

• Step two towards dismantling Roe is enshrining the fetus with rights.

• The Dobbs majority decision invites cases that will bring up whether a fetus has a right to life.

• Enshrining the fetus with rights would be not just leaving it to the states, but giving unlimited power over individuals to the state.

Dismantling Roe: The Anti-Abortion Movement's Strategy

In this section, the speaker discusses the strategy of the anti-abortion movement to dismantle Roe v. Wade and how it is a step-by-step process.

The Anti-Abortion Movement's Strategy

• At the state level, laws are being created to prohibit abortions because the fetus has rights.

• Objectivist philosophy argues that both claims are false: women have a right to abortion as a crucial aspect of liberty, and fetuses do not have rights.

• The anti-abortionists have been crafting their strategy for decades, with an end goal of dismantling Roe v. Wade.

• Currently, we are at step one in dismantling Roe v. Wade; there is still a second step to come.

• It is unclear what it will take to get cases and judgments regarding this issue.

Q&A Session

In this section, the speaker answers questions from the audience about where the court is going with regards to contraception and other related topics.

Court's Objective Regarding Contraception

• Justice Thomas' concurrence does not target contraception or protect any constitutional right for contraception.

• The 14th Amendment includes clauses about privileges or immunities, due process, and equal protection of laws that refer to integrated total rights which can only be lost through legitimate government action.

Thomas's View on the 14th Amendment

This section discusses Justice Thomas's view on the 14th amendment and how he wants to get rid of the decision based on due process.

Substance in the 14th Amendment

• Justice Thomas believes that there is substance in the 14th amendment.

• He thinks that it has substance through the privileges or immunities clause, not through due process.

Overturning Decisions

• Justice Thomas wants to get rid of decisions based on due process.

• He would find that they would protect it through the privileges or immunities clause instead.

Abortion and Other Rights

This section discusses how abortion is unique and how it affects other rights.

Unique Nature of Abortion

• The majority opinion asserts that abortion is unique because it involves a fetus, which they consider sacred.

• If you take their position seriously, their logic would equally rule out the Gonzales decision about the right to contraception because it prevents creation of life.

Other Rights at Risk

• The dissent asserts that other rights aren't in jeopardy, but if you follow their logic, all kinds of rights are at risk.

• The privileges and immunities clause wouldn't help defend those any better even if Thomas is more willing to hear an argument from that clause.

Validity of Supreme Court Process

This section discusses the validity and morality of the Supreme Court process.

Overturning Precedent

• The issue with Plessy is that it initially said segregation is justified.

• The opposing side argues whether we should open up the Supreme Court process and make it democratic.

Stare Decisis Doctrine

• There's a doctrine in law called stare decisis that requires courts to follow precedent.

• The Supreme Court is right in the way they treat cases in the process they take.

Overturning Precedent in Dobbs v. Jackson Women's Health Organization

In this section, the speaker discusses the argument that has been given for why Dobbs v. Jackson Women's Health Organization should not be overturned and how Dobbs is justifying its overturning of major precedent.

Overturning Major Precedent

• One argument against overturning precedent is that it has been on the books for many years and many people are relying on it.

• Dobbs justifies its overturning of major precedent by saying that if a previous decision was wrong from the beginning, then it can be overturned.

• The method used to overturn Plessy in Brown v. Board is different from what Dobbs is now using.

• Brown v. Board relied on the spirit of the Constitution and general principles rather than history and tradition.

Method Used to Make Decisions

In this section, the speaker discusses the method used by the court to make decisions and how it relates to overturning major precedents.

Method Used in Brown v. Board

• The court used a different method in Brown v. Board than what Dobbs is using.

• Brown v. Board relied on general principles rather than history and tradition.

Injecting Subjective Preferences into Law

In this section, the speaker discusses how injecting subjective preferences into law repudiates law as a set of principles.

Repudiation of Law as a Set of Principles

• Injecting subjective preferences into law means that the law is not a set of principles.

• The law must be a set of principles to govern both citizens at the time and into the future.

• The U.S. Constitution was a radical new document, and anything incompatible with its new principles has to go.

Personal Liberty and Privacy

In this section, the speaker discusses personal liberty and privacy as it relates to legal interpretation.

Common Source

• The cultural sentiment of "live and let live" comes from the liberal mentality.

• Personal privacy is a common source for evaluating other people culturally.

The Principle of Liberty

In this section, the speakers discuss the principle of liberty and how it is often used to justify certain positions. They also explore the limitations of liberty as a principle.

Personal Liberty vs Business Interests

• The principle of liberty is often used to justify certain positions.

• Freedom is important in personal life but not necessarily in business.

Right to Privacy and Abortion

In this section, the speakers discuss the right to privacy and its connection to abortion rights. They also explore why privacy alone may not be sufficient for protecting individual rights.

Personal Privacy vs Personal Liberty

• The right to privacy is connected to abortion rights.

• Once you start interacting with others, you lose some of your rights.

• Rights have nothing to do with how people function together.

Roe v. Wade Majority Opinion

• There's an element in Roe v. Wade that suggests once some people are around, you lose your rights.

• There's a state interest in the fetus even though it's not a person yet.

Constitutional Issues and Abortion Rights

In this section, the speakers discuss constitutional issues related to abortion rights. They also address arguments against abortion based on constitutional grounds.

Ninth Amendment and Abortion Rights

• The ninth amendment says that just because something isn't mentioned in the constitution doesn't mean it's not a right.

Fetus as Person

• The 14th amendment specifies that all persons born in the US are citizens, but it doesn't mention the unborn.

• Individual rights apply only to individuals who are physiologically and physically separate from each other.

• The fetus is not an individual and therefore does not have individual rights.

The Ninth Amendment and Liberty

In this section, the speaker discusses the importance of the Ninth Amendment in protecting unenumerated rights and how it is often overlooked by originalist judges.

The Ninth Amendment

• The Ninth Amendment is important in protecting unenumerated rights.

• Originalist judges often overlook the Ninth Amendment.

• Judges struggle to understand what unenumerated rights mean.

• Living under a rule of law means citizens should not have to go through historical and traditional analysis to understand their rights.

Distance Opposition to Dobbs Ruling

In this section, the speaker discusses the distance opposition to the Dobbs ruling and its concrete-bound nature.

Problems with Roe

• The main thing missing from distance opposition to Dobbs is a challenge to some of the problems in Roe.

• The viability standard has been criticized for being vague and arbitrary.

Concrete-Bound Nature of Dissent

• The dissent in Dobbs does not exhibit as much concrete boundedness as the majority opinion.

• Justices who wrote this dissent have a good idea about how we would apply general principles today given all other contradictions they have.

Criticism of Subjectivism and State Power

In this section, the speaker discusses the criticism of subjectivism and state power in relation to economic freedom and abortion.

Criticism of Anything Goes

• The criticism from the original side is that subjectivism leads to anything goes.

• There is a legitimacy to that criticism as there is a subjectivism in dissent as well.

State Interest Dominates

• Both sides are animated by what they don't like, leading to state power growing.

• If liberty gets jeopardized by that, who cares because both sides want to control different realms (economic realm, pregnancy, contraception).

• What dominates on both sides is the state interest.

Descent Is Forceful but Empty

• The descent is forceful but ultimately empty.

Seriousness of Fetus Rights

In this section, the speaker discusses whether or not those who argue for fetus rights are serious about it.

Controlling Women's Actions

• Those who argue for fetus rights are more serious about controlling women's actions than giving fetuses rights.

• They believe they can answer how a female fetus has rights when it's potentially vulnerable to sexual assault, rape, incest during menstruation or pregnancy.

• Once pregnant, their actions belong to the state and are no longer valid for what they want in their life.

Deadly Serious About Fetus Rights

• The speaker believes those who argue for fetus rights are deadly serious about it.

• Three or four judges think fetuses have rights while six signed on to the majority opinion.

• It's possible one or two judges don't understand the implications of it.

Different Views of Rights

• You can make all these different views of who has rights when consistent on their part.

• The speaker believes they don't mean anything by rights like what objectivism means by it or what the founders did.

Private Personal vs Economic Rights

In this section, the speaker discusses the usefulness of distinguishing between private personal and economic rights.

Private Property vs Personal Property

• The distinction between private personal and economic liberty is stubborn.

• Socially, private property is not okay but personal property is okay.

• Fascism dictates what music you hear and everything in your personal life but you can hold titles to property.

Useful Distinction?

• Is it a useful distinction at all? It appears in the Cato Institute like freedom index and different countries differ on it.

The Importance of Property Rights

In this section, the speaker discusses the importance of property rights and how they are central to individual rights.

The Target is Property Rights

• Property rights were central to individual rights in the 19th century.

• The target of those who want to undo the Enlightenment achievement and American Revolution is property rights.

• Lochner was targeted because it allowed for freedom of contract and property rights.

Human Rights vs. Property Rights

• Some people claim that there are human rights but not property rights.

• However, you cannot have freedom of speech without property rights.

• The distinction between human and property rights is useful for understanding wrong viewpoints but not valid in terms of individual rights principles.

Freedom in Material and Spiritual Realms

In this section, the speaker discusses how conservatives and liberals view freedom differently based on their beliefs about the mind-body dichotomy.

Mind-Body Dichotomy

• Conservatives believe in freedom in the economic material realm but not in the spiritual realm.

• Liberals believe in freedom in the personal spiritual realm but not in the economic realm.

• Both sides assume a split between material and spiritual realms based on a mind-body dichotomy that does not exist.

Integration of Mind and Body

• Your mind is intimately integrated with your body, so you cannot separate these two kinds of freedom.

• People think they can separate these freedoms because they believe in a mind-body dichotomy.

Hope for Democracy and Ruth Bader Ginsburg's Views on Roe v. Wade

In this section, a physician asks the speaker about hope for democracy in America and Ruth Bader Ginsburg's views on Roe v. Wade.

Democracy in America

• The process of democracy in America is messy, so there is not always a black-and-white answer to Supreme Court decisions.

• The speaker provides hope by discussing the importance of individual rights principles.

Ruth Bader Ginsburg's Views on Roe v. Wade

• Ruth Bader Ginsburg thought that Roe v. Wade was going to surface as a problem from a constitutional standpoint.

• The speaker has seen quotations attributed to her suggesting she thought there were problems with Roe but does not know what those problems were.

The Equal Protection Clause and Roe v. Wade

This section discusses the Equal Protection Clause and its relation to Roe v. Wade.

The Right Way to Do It

• Justice Ginsburg did not think that using the Due Process Clause was the right way to decide Roe v. Wade.

• Instead, she believed that it should have been decided through the Equal Protection Clause.

• She thought that if it had been decided through the Equal Protection Clause, it would have more permanence.

Incorrectly Decided?

• Justice Ginsburg did not believe that Roe v. Wade was incorrectly decided from a legal perspective.

• She believed that it was playing out at the state level and that getting it through the Equal Protection Clause would have more permanence.

• However, she acknowledged that if there were changes in the composition of the court or a party crusadingly anti-abortion, this could change.

Rule of Law vs Politics

This section discusses how politics can influence decisions made by courts.

Different Perspectives

• Justice Ginsburg believes that there is a difference between looking at decisions from a legal perspective versus a political one.

• While politics can influence decisions made by courts, rule of law should be prioritized over political considerations.

Conclusion

This section concludes the discussion.

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