Did anyone notice the emphasis on morality that Justice Alito placed? He begins the majority opinion with it:
Abortion presents a profound moral issue on which Americans hold sharply conflicting views.
He ends with it:
We end this opinion where we began. 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.
And in between he uses the various forms of the word "moral" at least seven more times.(1) I challenge anyone to find a Supreme Court majority opinion so grounded in morality. His opinion is shot through with it (2) even when he doesn't use the specific word. On the Court only Justice Kavanaugh seems to have noticed this and is quick to write that the issue before the Court is not a moral one. I predict that when legal scholars pick through the opinion this will be the most striking thing to them. And it reads worse for this emphasis on morality that Justice Alito finds the Constitution neutral on the moral issue of life and death. The Constitution has nothing to say about the existential matter of life and death?! When is the Constitution neutral on life and death?! It prescribes how states must execute its citizens! SCOTUS doesn't issue opinions on morality, nor based on morality. It is not a SCOTUS-quality opinion, it's not even SCOTUS style. My challenge is above. Once you accept morality as the debate ground no compromise is possible. It makes for terrible, unconvincing argument. Alito and the majority he writes for, say that fetal viability is an arbitrary canard. How is when a fetus can exist on its own arbitrary? It seems to me that is the gravamen of the "moral" issue. A SCOTUS member cannot win a moral argument, even with himself, (s)he has to argue from settled law, and I think Alito got frustrated that he started down this path and realized, too late, that he had stepped into a morass and had no way out. I predict Alito is going to be excoriated for this opinion. The holding destroys one half century of the Court's work but I sincerely wonder how influential Alito's opinion will be.
I don't know Alito's writing style but as I was picking through his opinion I wrote a note "This is a fiery opinion." He seems angry, unless that is his style; he is contemptuous of the Roe and Casey courts; he finds personally "objectionable" the dissent, and is highly critical of Chief Justice Roberts' concurrence (Alito ignores, completely ignores, Kavanaugh's and Thomas' concurrences, terming Roberts' "the concurrence.") The contrast with Kavanaugh's even-tempered tone, the first in order after the majority, is striking. As it is with Roberts'. It weirded me out, man. "Fiery." Now, often times dissents are what could be termed "fiery" but the majority opinion...Alito won! and he writes in a slash and burn style as if he lost 8-1. (2) All in all, this is the worst Supreme Court opinion in the history of Supreme Court opinions...With all due respect.
1. I did not record the page in the opinion of Alito's earliest usage of "moral":
-...a question of profound moral and social importance that the Constitution unequivocally
leaves for the people.
-None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. (32)
- ...the fundamental moral question that it poses is ageless. (33)
-Defenders of Roe and Casey do not claim that any new scientific learning calls for a different answer to the under-
lying moral question...(33)
-... can it be that a fetus that is viable in a big city in the United States has a privileged moral status
not enjoyed by an identical fetus in a remote area of a poor country? (52-53)
- ...respect for a legislature’s judgment applies even when the laws at issue concern matters of great
social significance and moral substance. (77)
2. Life and death.
-...the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” See Roe, 410 U. S., at 159 (abortion is “inherently different”); Casey, 505 U. S., at 852 (abortion is “a unique act”). None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. ...They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.(32)
[Note to self: How strange that the Constitution does not say anything about such a "critical moral
question" as the destruction of "potential life".]
-...it is impossible to defend Roe based on prior precedent because all of the precedents Roe cited, including Griswold and Eisenstadt, were critically different for a reason that we have explained: None of those cases involved the destruction of what Roe called "potential life." (37)
-...the dissent’s analogy is objectionable for a more important reason: what it reveals about the dissent’s views on the protection of what Roe called “potential life.” The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a “potential life,” but an abortion has that effect. ...the implication is clear: The Constitution does not permit the States to regard the destruction of a “potential life” as a matter of any significance. (38)
[According to this holding the Constitution takes no position on "the destruction of human life."]
-Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after
birth. (38)
[Alito: You just spent 37 pages criticizing everybody else for not recognizing the "moral" stakes involved. Now you have no opinion on the rights of prenatal LIFE?! Dude, are you feeling unwell?]
-...none of these decisions involved what is distinctive about abortion: its effect on what Roe termed “potential life.” (49)
-[This is a fiery opinion]: The Court’s abortion cases have diluted...They have ignored...They have disregarded...They
have flouted...And they have distorted...(63)
-Our decision returns the issue of abortion to those legislative bodies... (65)
["We the Supreme Court of the United States receive this moral ball of life from center and punt it back to the states."]
-As even the Casey plurality recognized, “[a]bortion is a unique act” because it terminates “life."
-...rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter(as we have stressed) uniquely involves what Roe and Casey termed “potential life.” Roe, 410 U. S., at 150 (emphasis deleted); Casey, 505 U. S., at 852. (71)
[Tell that to your Brother Thomas who spends the entirety of his opinion arguing that substantive due process does not exist and that cases so-based, like the contraception and same-sex marriage cases, should be next, and post-haste, on the chopping block of reversal.]
-We now turn to the concurrence in the judgment, which reproves us for deciding whether Roe and Casey should be retained or overruled. That opinion (which for convenience we will call simply “the concurrence”) recommends a “more measured course,” which it defends based on what it claims is “a straightforward stare decisis analysis.” (opinion of ROBERTS, C. J.). (72)
The concurrence’s most fundamental defect is its failure to offer any principled basis for its approach. (73)
[Oh well is that all, unprincipled? Okay then.]
-We must now decide what standard will govern if state abortion regulations undergo constitutional challenge and
whether the [Mississippi] law before us satisfies the appropriate standard. Under our precedents, rational-basis review is the appropriate standard for such challenges. As we have explained, procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history. See supra, at 8–39.
[And neither is life.]
... It follows that the States may regulate abortion for legitimate reasons...That respect for a legislature’s judgment applies even when the laws at issue concern matters of great social significance and moral substance. (77)...These legitimate
interests include respect for and preservation of prenatal life at all stages of development, Gonzales, 550 U. S., at 157–158; (78).
[Would preventing murder be a legitimate reason for "regulation" by the states? How could it not be and how could any other reason be?]
Kavanaugh concurrence:
-The issue before this Court, however, is not the policy or morality of abortion. The issue before this Court is what the Constitution says about abortion. The Constitution does not take sides on the issue of abortion.(2)
-... the Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral ...
-Some amicus briefs argue that the Court today should not only overrule Roe and return to a position of judicial neutrality on abortion, but should go further and hold that the Constitution outlaws abortion throughout the United States. No Justice of this Court has ever advanced that position. I respect those who advocate for that position, just as I respect those who argue that this Court should hold that the Constitution legalizes pre-viability abortion throughout the United States. But both positions are
wrong as a constitutional matter, in my view. The Constitution neither outlaws abortion nor legalizes abortion. To be clear, then, the Court’s decision today does not out-law abortion throughout the United States. (3)
-The Roe Court took sides on a consequential moral and policy issue that this Court had no constitutional authority
to decide. (11)
-In my judgment, on the issue of abortion, the Constitution is neither pro-life nor pro-choice. The Constitution is
neutral, and this Court likewise must be scrupulously neutral. (12)
-...the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process. Through that democratic process, the people and their representatives may decide to allow or limit abortion. As Justice Scalia stated, the “States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so.” [original emphasis] Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 979 (1992) (opinion concurring in judgment in part and dissenting in part). ...After today’s decision, all of the States may evaluate the competing interests and decide how to address this consequential issue.
Roberts:
-If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more. (2)
-Both the Court’s opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share. I am not sure, for example, that a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fifteen weeks. (12)
