David, you wrote a commendable column, but your optimism is naive.

You note how difficult it is to amend the US Constitution. But, as Dobbs shows us, it can be amended without the consent of a majority. All you need do is change the membership of the US Supreme Court. Dobbs rests on no higher premise than power--the majority reversed Roe because they could. Their reasons are unimportant and entitled to no greater respect than history has given Dred Scott.

And changing Dobbs is difficult. Passing a constitutional amendment to protect the right to an abortion is impossible because any proposed amendment will never get two-thirds votes of Congress or three-fourths of the states.

So, what to do? Perhaps Congress can pass a statute protecting abortion. An earlier Congress passed a statute barring so-called "late term abortions." The Supreme Court upheld that law. Would the present Court uphold a law reversing Dobbs? Perhaps, but surely Thomas and Alito would dissent.

Meanwhile, how many women will suffer trauma, pain, imprisonment and death before Dobbs is banished to the junkheap? 700,000 Americans died in the Civil War before Dred Scott was buried. Countless citizens died before Plessy v. Ferguson was reversed.

Change can come if the people insist on it, but only slowly and painfully. We pay this price only because five justices decided they should pay more attention to the ravings of Matthew Hale rather than the voters.

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Didn't "we the people" already address this issue (more than once)? It seems to me that one of the most peculiar aspects of what Alabama did here (and even more so the pretense of the SCOTUS majority in Dobbs) is that they are strikingly at odds with the text of the Constitution.

Isn't the Fourteenth Amendment clear that "citizens" include all (and only) "persons born or naturalized in the United States"? Isn't the Fourteenth Amendment clear that "a person" must be "born"? Isn't the Fourteenth Amendment clear that "[n]o State" has the power to "make or enforce any law" that would "abridge the privileges or immunities of citizens"? Isn't the Fourteenth Amendment clear that no "State" has the power to "deprive any person of life, liberty, or property, without due process of law"?

How can SCOTUS or Alabama justices presume to pretend that state legislators or state judges have the power to deprive actual citizens of their liberty (and maybe their lives) by favoring something that the Framers (of the Fourteenth Amendment, as well as the Bill of Rights) clearly did not consider to be a person, much less a citizen?

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On the subject of the interest of legislators and judges in southern states purporting to protect (potential) human life (relevant to speaking of what the people who wrote and ratified the Fourteenth Amendment were thinking), it’s worth recalling what too many people in too much of the U.S. actually were thinking in the 1860’s.

The sources I’m going to cite right now are not ones with which I agree. But, as many southerners like to say, it undeniably is American history—and we should not forget it. One of the reasons we should not forget some of our harshest history is that it was written (and sometimes history was revised) by people we like to think we can trust—judges and legislators (many of whom were lawyers).

In some instances, history has been written atrociously and revised egregiously by SCOTUS justices (a majority of justices). I’m going to use what is arguably the most reprehensible SCOTUS opinion ever written (Dred Scott v. Sandford, issued by SCOTUS on March 6, 1857). But to preclude potential contentions to the contrary, I’ll say up front that I loathe the opinions expressed by, and I loathe even the actual justices in, the SCOTUS majority. I respect the dissents of the two justices who dissented.

The reason I’m using Dred Scott (in a discussion about Alabama) is because Alabama was one of the states in the 1860’s that officially subscribed to the sentiments expressed by Chief Justice Taney in 1857 to pretend to justify robbing actual people (actual citizens who actually were born in the U.S.) of their rights:

The words ‘people of the United States‘ and ‘citizens‘ are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the ‘sovereign people,‘ and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether the class of persons described in [in the court filings] compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens‘ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant [people in power], and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

The Constitution of the Confederate States of America (CSA) is dated March 11, 1861. The “logic” of Chief Justice Taney’s March 1857 opinion in Dred Scott about the U.S. Constitution permeated the CSA Constitution. Particular provisions emphasized how the confederate government and the states that created or joined the CSA viewed the people at issue in Dred Scott. See Article I, Section 9, clauses 1, 2, 4.

Chief Justice Taney lied about our Constitution in Dred Scott, pretending that throughout what became the U.S. one human being always was a “person” (mentioned at the beginning of the Fifth Amendment), while his neighbor never was a “person” and almost always was “property” (mentioned only at the end of the Fifth Amendment). Then, states created or joined the CSA to prove, specifically and conclusively, exactly what type of being they considered to be a “person” versus “property.” Article I, Section 9, clause 16.

So let’s not now pretend that, when the Fourteenth Amendment was written and ratified, all potential human life was seen sacred or even as a "person" or in any way protected (as human) by the Constitution in all of America. Parts of the original U.S. Constitution, Taney's opinion and the CSA Constitution and the states that subscribed to its sentiments establish one thing beyond any doubt: a whole lot of actual humans were thought of as "property" and a whole lot of people had no problem with that "thinking" throughout the entire history of the U.S. from the 1770's through the 1860's.

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Perhaps I am a bit dense. My take on the initial ruling was that it was to enable the prosecution of someone who for example broke into a clinic and willfully destroyed the embryos. I assumed it was similar to holding someone responsible for the death or injury of a fetus if they assaulted or killed a pregnant woman.

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LePage was not a criminal case (so there was no "prosecution"). It was a civil case brought against clinics that allegedly failed to adequately secure the area where frozen embryos were kept, allowing a patient to wander in, grab a tray of embryos, and drop it, destroying the embryos.

The question for the court: do the plaintiffs have a wrongful-death case or a negligence case? The court held that they have a wrongful-death case because the definition of "child" under the wrongful-death statute includes unimplanted embryos.

See my write-up under Ruling of the Week for more details:


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