Florida Criminal Defense and DUI Defense Blog

23May, 22

SCOTUS Leak OpinionAssociate Attorney Wendy Diaz has gone through all ninety-eight pages of the leaked Supreme Court draft opinion on overturning Roe v Wade, and returns with her take on the entire document.

Last week, I did a very basic reading on this case, and I was very angry, and very angry. And did I mention I was very upset?

So now I’ve taken the time to really read the case. I’ve looked at what Justice Alito talked about. I did some Google searches, just to make sure I got my years right. And just kind of wanted to talk to you all about what I digested.

Justice Alito outright says the basics that we know about abortion. It’s a moral issue.

There’s really three categories:

1) The people that find it inherently wrong and don’t want it at all, and everything is life and pro-life.

2) The people that consider abortion only necessary depending upon what’s going on with the woman.

3) And then there’s the gray area. Most people qualify or classify themselves in the gray area, at least from my friends and family. Because it is such a taboo issue. It’s an issue that, similarly to LGBTQ and interracial marriages, and interracial relationships and trans and even mental health, It’s not something that most of my parents generation and the predecessors of that have talked about. Where my generation is more open and okay with getting a little bit nitty gritty if it comes out stronger on the other side.

Roe versus Wade came out in 1973. Prior to Roe versus Wade, there really wasn’t anything about abortion, primarily because it wasn’t talked about. And the second case that Justice Alito talks about is from the early 1990s, from Planned Parenthood in southeastern Pennsylvania versus Casey.

Those two cases generally are the big go-to’s when it comes to any and all abortion issues that come up to the Supreme Court.

The main issue in the case is the law in Mississippi, basically saying that anything after fifteen weeks is unlawful, unless there is an emergency. What that emergency is, the court didn’t get into it, and whether or not they were given the information of what was considered an emergency, that part I don’t know. But an emergency could be very subjective or objective, insert what you consider an emergency here.

The holding of the court, which is the rule as people would say, is overruling Casey and overruling Wade, because it has a weak argument, essentially is what Justice Alito is saying.

Justice Alito gives three different points of analysis as to why Roe versus Wade is not sound law.

The first one he goes into a historical constitutional analysis in regards to the 14th Amendment Due Process Clause and what Liberty means. The second one whether abortion is rooted in our nation’s history and tradition, and whether abortion is an essential component to what the justices call ordered liberty. And then the third one is whether or not you can get an abortion based on prior precedents.

Going into the first analysis of the Constitution, he looks at what Roe used as why the Chief Justice back then allowed this right, as implied in the Constitution, because back in the 1700s, when the Constitution was written, last I checked there weren’t any women in the room unless there might have been serving food, but we don’t know about that. And it just wasn’t an issue. Women back in those days were property. The more value your dowry was, the more precious you were. So women weren’t really considered during the historical timeline that Justice Alito points out.

He does look into four different amendments and different combinations thereof that Roe looked into. It’s the first, fourth, fifth and ninth. And at the end of his analysis, based upon these amendments, he basically says it’s not in there. It’s not in there, because the analysis of right to privacy isn’t in there. Which is ironic, because the court ended up asking for privacy after the leak. So I wonder where privacy lies. Hmm. Who knows?.

So in the next analysis, he goes into the Equal Protection Clause, and the Equal Protection Clause does not apply, because men and women aren’t equal. He uses the argument that because men do not have the ability to get pregnant, the Equal Protection Clause does not apply.

I find it interesting because there are things that women need to use that do get taxed, such as feminine hygiene products. And a lot of things like razors and other hygiene products that women and men both use tend to be more expensive on the women’s aisle than they do in the men’s.

So that’s the first portion of the analysis with the Constitution.

The second part goes into whether or not it’s an ordered liberty and goes to the precedence.

Justice Alito goes and goes way, way, way back to the 1200s, also known as the 13th century. For kind of a frame of reference, Queen Elizabeth didn’t come around (the first one), until the late 1500s. So we’re about 300 years before Henry and all of those wives, and even before anyone’s thinking about coming to America.

So he’s looking at abortion based upon laws from 1302, and he uses the way the courts analyze abortion is a pernicious act. Fast forward, Henry the Eighth called hops a pernicious weed, but we see breweries and all the good craft beers coming around all over the place. Is abortion really a pernicious act? Or was it just viewed that way? Similarly, as a way that hops was viewed as a pernicious weed.

And the one thing that Justice Alito forgets is men were making these decisions. Women didn’t have rights. Probably a cow or a pig had more rights and was probably were taken better care of then a woman. A woman was pretty much left to her own devices, if she did have an extra marital affair or a pre-marital affair and ended up getting pregnant.

The court also looked at potential legislative motives coming in, as to why abortion was illegal. And now we’re looking at the motives, coming into the early 19th century and the early 20th century, mainly during the Irish migration, from 1820 to 1930.

The court asked itself back then whether or not certain laws of abortion and women’s rights were motivated by hostility towards Catholics and women. I argue yes. The court itself has said that you can basically pull over anyone for any reason whatsoever. You don’t have to have a motive to do something. And if you can hide behind a motive of protecting, you can absolutely do whatever you want, as long as you’re in a position of power to get what you want.

So, the court looks at how possibly someone could discriminate based upon religion or their gender, and that could never be the reason why abortion is illegal. I wholeheartedly disagree.

Then the last part that Justice Alito goes to is stare decisis. It’s basically just a nice way of saying the court doesn’t want things to change, because that particular court at that particular time doesn’t want to do the changing.

Justice Alito goes and gives us five elements as to why the court should change its own mind. The first one is it’s egregiously wrong. You have to have a crappy quality of reasoning. The law isn’t workable. It has an egregious effect on other areas of law, and its reliance interest.

Who says something is egregiously wrong? Is something that’s outside the bounds of reasonable interpretation? Is it because it’s something that’s a due or an undue burden, as Justice Scalia said in one of the opinions that Justice Alito acknowledges? But at the end of the day, whether something is outside the bounds of reasonable interpretation, and whether or not it’s due versus undue, that’s the woman’s decision to make. I know my neighbors and I like my neighbors, but I don’t know what truly goes on inside their house. And they can say the same thing about me. And I’m pretty sure they would be annoyed if I make decisions upon their household based upon limited information that I know, because I would be bothered if they’re making the same choices on me and my family.

In the quality of reasoning for why the court is overturning this goes back to because there’s no precedent. Well, of course, there’s no precedent, because women didn’t have the power to even have a voice. So the hypocritical argument of why something isn’t there, and because something is not there, we shouldn’t impose ourselves of it, then I would argue he shouldn’t be living with electricity, he shouldn’t be living with plumbing. And he should be writing in Old English, because of how much information he took from those times.

He does acknowledge that issues such as school segregation, with Brown versus Board of Education, interracial marriage with Loving versus Virginia, those things the court did fix, because society changed. Society has changed. We’re barely just over 100 years of women having the ability to vote. And the idea that someone wouldn’t rely upon social and political pressure, especially with these last two terms, regardless of party, and regardless of where you stand with the issues of attorney Merrick Garland potentially being a Supreme Court justice, but not getting it, and what happened after Justice Ginsburg passed away. That in itself shows that there are social and political pressures placed upon the court by our own elected representatives, whom the court says the power of whether or not a woman should have an abortion lies.

And it’s just unfathomable that, in a time where I don’t even think the creators of The Jetsons could even imagine that we are this technologically advanced. I mean, we have self-driving cars. I’m talking on a screen and you’re listening to me. We’re using our phones to see, rather than just hear. These changes that have come up relatively recently are accepted, and widely adored, but when it gets to the dirty issues that make us feel uncomfortable, they purposely, I think, back themselves into a corner, and you know, well just however everything was. Well, you can’t have how everything was, and let’s have progress. And in order for us to have progress, the court has to realize that women are becoming the majority of the population.

And not only are women becoming more of the population, people (black, brown, LGBTQ people) are becoming more of the norm, than than being shunned away or just placing themselves into a corner to not cause trouble.

So I think to whomever leaked this opinion, I am appreciative of you. I’m sad that now when I look at Lexis and Westlaw, there’s a big stop sign next to Roe v Wade. I hope that the court does look at its own words. It really does look at the social and political pressure that it’s under, that I think it put itself in. And I hope that no one would have to succumb herself to potential death because they decided, or maybe they didn’t decide, to have to have sex and they got pregnant, and whether they don’t want a baby for health reasons, they can’t fully grow a baby, there are many reasons and whatever your reason is, it’s just insane that in 2022, barely 100 years after women got the right to vote, women can’t say what they can and cannot do with their bodies, because of a potential life, not an actual life, but a potential, and the irony of that potential life ruining the potential future of the woman.

So that is my digestion.

I’m sure this issue isn’t going to go away. Saturday Night Live did a great spoof with Benedict Cumberbatch about it, and it shows the hypocrisy of twelfth century viewpoints being used in the 21st century.

Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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