A Few Thoughts On the Common Law

Alito’s Misunderstanding (Or Denial) of Common Law Jurisprudence

Now we might give a similar analysis to the currently controversial Dodds decision. But I think any critical analysis should not be centered on”he took a right away women have enjoyed for fifty years” (kind of silly itself, unless women are saying they enjoy getting abortions) and more on a lot of similar judicial outrageousness in Alito’s decision.

First I want to point out that nine years before Roe I became a strong proponent in believing abortion.  I didn’t know anyone else who was feeling as I did.  I had a classmate and she and I were quite close, we used to hang together.  She was a year younger than I, but she lived on the ground floor of an apartment just below ours.  We were not dating, but she told me one day she liked this boy and I said, “He thinks you’re really pretty.”  “He does?  Oh wow! Can you tell him I’m interested in him?’  Well I did so and they began to be what we called “steadies”.  When it got serious (I’m going to call her Jane, as in Jane Doe, but she is not Jane Doe) Jane told me her boyfriend wanted to have sex and did I think she should.  I do not know if she was hoping I would talk her out of it,or not, but she knew that I was pretty straight-laced and my future plans were to become a minister.  At any rate I did tell her no because of the risk of pregnancy. This was the year the courts would hand down Griswold and I’m not sure if we had heard about it yet , but at any rate that only applied to married women only and Eisenstat was seven years away.   We lived on an isolated military base on an island belonging to another country at that time, so of course there was no way to go should something happen that might require it.  

Jane and I would sometimes talk on the phone in the wee hours.  One morning the phone rang at two a.m, and my parents, being sound sleepers, did not hear it .  Jane says, “can you come over, I need help.  It’s kind of an emergency, please, come to my window, and I’ll let you in.”  “What’s wrong?”  “Just come please, come really fast, I need you.” I put on my shoes and coat and ran down the hill.  She  opened her window and I dived through it.   Then I noticed blood all over the bed.  “What happened, did you cut yourself? “  “ No,"Jane replies, “ I shouldn’t have had sex.  I did get pregnant and I tried to use a coat hanger to get rid of it”  Then I noticed her pajama bottoms were also soaked in blood.  “You have to go to the hospital.”  “No, no, you have to stop the blood.”  I’m in a panic now because I can see that the blood is increasingly flowing out, and I think the panic must have been observable to her.  “Please, please, you’re the only one who can help me, “ but her words were beginning to fade and then she like  fell into me, or at least I caught her.  “Jane, Jane, come on Jane, speak to me”  No response.  I ran to her parent’s room and pounded on their bedroom door, Wake Up! Jane’s in trouble, she needs you, she’s bleeding.  I kept pounding and yelling until her father opens the door a crack and looks out at me. “What’s happening?”he sleepily mutters. “Jane…she passed out, she’s bleeding bad… I don’t know.”  Many parents would have begun an accusatory dialogue, What am I doing there, why is she bleeding, etc.  He did not.  He just ran to her room in his underwear and looked in the open door, he yelled at his wife, “Put your coat on, don’t get dressed, just get your coat on and go start the car.  He picked Jane up  in his arms and began to carry her out.  He didn’t get his coat, but I saw it hanging on the rack by the door and grabbed it as I followed him out the door.   When we got to the car that his wife was already warming up, he asked me to open the door and get in and he would slide her into me. The base was  small, and it was really only a clinic but there was  a small staff on duty 24 hours.  But they did call in more staff.  I sat in the waiting room with her parents but we didn’t speak until several hours later, it’s hard to tell if it was morning because we were far north and it was winter so there was no “day”, but probably it was not as long as it seemed, until one of doctors came out and spoke to us and said it was still critical and that they needed more information.  Her father said he wasn't sure what had happened but I might be able to have more information.  I told the doctor about  the phone call, and sneaking into the bedroom, and seeing the blood, and that she told me she had attempted to give herself an abortion with a coat hanger.”  The doctor thanked me and left.  A few minutes later Jane’s father turned to his wife and said, “I think you had better take Ken to school, he’s probably late.  Well, Jane remained critical for a few more days, but they had heli-transported  her to a larger facility shortly after I left.  Her parents did inform she had survived  But of course Jane never returned to the base and I never saw her again in my life.

Well I do not know if abortion is a moral issue or not.  But from that moment in my life I believed that preventing abortions was immoral.  I did not need to hear all of the horrible stories  that occurred after the Dobbs decision. I had already personally seen the horrible immorality of attempting to ban it   58 years ago.  It’s not something I should have witnessed.  I lived closer than her boyfriend and if she had called him she probably wouldn't have survived.  I don’t know if the parents would have been more hostile if she had called him, he thought they were.  I know they thought at fourteen she was too young to go steady, maybe there would have been a confrontation that would have delayed her treatment.  I don’t know exactly what happened, what part of herself she injured.  What I do know is that it should not have happened.  What I do know is that what did occur, occurred because trying to legislate morality, is itself  immoral.  My personal being changed that night in that I no longer believed morality was a set of rules.  Morality, I came to believe, could only be attainable in a moment-to-moment, case-by-case moral interactions.  The common law should be moral by doing just that. Morality can never be defined and  immorality is not what people have done but is our response to what they have done.  

I suppose I was just as thrilled as any woman when Roe was handed down.  But Roe must be the most misconstrued case ever handed down.  It simply doesn’t say what everyone claims it says.  If Roe were codified it would allow for legal abortion for only 13 weeks, not the15 that some republicans expressed. Roe had no exceptions for rape or incest, and even in the first thirteen weeks when there sill needs to be a medical interest, or reason, but the statewas removed from having an “interest” in the first trimester.  Since everyone continues to talk about what Roe says, please let’s look at what Justice Blackmun actually wrote: 

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life  may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

Although not actually specified in his trimester scheme, there is, however,  sprinkled through the decision that indicate psychological needs as sound medical reasons, and those psychological needs can include stresses that might be created by financial concerns, and although never specified, could, I suppose, include psychological trauma created from a woman being raped or a victim of incest (actually rape by a family member, so basically the same thing that doesn’t require an and… because to me incest should be prosecuted as rape so the “and” becomes superfluous, and laws should simply define it as such, and penalize as such, and if itis repetitive incestual rape, tried as multiple counts of serial rape. And the one criticism I have always had of Roe is this trimester scheme that does more closely resemble a legislative rule rather than a judicial rule.

The problem has been that some medical practitioners have not involved the state after the first trimester and have actually violated the standards set by Roe that has perpetuated a false perception.

Although heavily criticized, by removing the trimester scheme, Casey actually expanded Roe, and I believe much more aligned with common law justice.  And perhaps Alito & cohort should have heeded Sandra Day O’Connor’s warning in the opening of Casey. 

      The Roe rule's limitation on state power could not be repudiated without serious inequity to people who, for two decades of economic and social developments, have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain costs of overruling Roe for people who have ordered their thinking and living around that case be dismissed. Pp. ____.

      Far from being too timid to entirely overturn Roe, and hid her timidity behind stare decisis, not only does O’Connor point out the importance of precedent for stability in law in paragraph one, in paragraph two she points out that while there have been objections to Roe it has not been unworkable and then in paragraph three (above) says completely overturning abortion rights would cause instability in the community and that would become unworkable.  But not only does Alito declare he is not too timid but writes almost with a gleeful smirk on his face—hey I got power now and I’ll overturn any damn precedent I want.  Then he tries to temper that a little bit later by declaring overturning precedent is a really serious thing and “we don’t do it lightly” and compares Roe to Plessy.  Look no one thinks anything but ill of Plessy, however Brown followed a long string of precedents developed over thirty years in expanding the fourteenth amendment to the citizens within the states.  It was not a standalone-do-away-with decision.  It followed a string of precedents that John Marshall Harlan wrote in a string of dissents against  his own court that they should have been doing that all along.  In the 20th century jurists began looking at Justice Harlan’s dissents and it was all done in accordance with how common law focuses towards the contemporary situation.  And what Dobbs wants to accomplish is to give us a history in precedents of the past as if the past precedents are stone tablets carried down from the mountain and turn common law into monuments of worship and awe.  And if they succeed in ruling in North Carolina's favor in Moore v. Harper they will succeed in something that actually predates their own legal standard they claim to believe in—the constitution.  Before its signing there were a few states that did declare themselves supreme to the judiciary because those states had had bad experiences with England appointing justices that had tried to prevent any legislation against that might establish laws more favorable to the crown.  Since Alito and gang seem to favor Cromwellian puritanical justice, I believe the crown they are actually trying to anoint may be the crown of the church.  But I’m not sure on that.  It may just be to crown some extreme tyrannist.  Or perhaps they wish to place the crown on their own head.  I don’t know.  But creating some type of moralist rule is in plain sight, not only in Dobbs, but in many of the recent decisions.

Note:  Since writing this excerpt it appears that Moore has probably become moot with the election of the new Supreme Court in North Carolina.  But the point made, I think, is still of relevance because there is the possibility of a future case along similar lines—perhaps in Wisconsin if the new court makeup tries to end the gerrymandered Wisconsin districts—or possibly in Tennessee or elsewhere where parties have attempted to redraw districts to give one party only a legislative supermajority.

Reference:

https://casetext.com/case/roe-v-wade-2

https://casetext.com/case/dobbs-v-jackson-womens-health-organization#:~:text=Held%3A%20The%20Constitution%20does%20not,people%20and%20their%20elected%20representatives.