Original Publish Date: July 12, 2022
“If any civilization is to survive, it is the morality of altruism that men have to reject.” -- Ayn Rand
It Starts in Antiquity
Aristophanes presented a story in classical antiquity about the original human, complete with four arms, four legs and a double-faced head. Fearing this strength in humanity, Zeus split in half those from whom he sought tribute, forcing an epic disconnect that still remains. This is the foundation upon which our divided modern society was built, existing in isolation while longing for a primordial connection.
This Olympian template and the fundamental beliefs institutionalized through myriad religions over thousands of years fail to accommodate the necessary rule of law governing some 7.95 billion sentient beings on planet Earth, and specifically the 330 million people in the United States. Society misplaced its moral compass so long ago that not only is society lost along the way, but it forget from where it came. Splintered at its core, this nation must sometimes accept the rule of law as its spiritual solution, which in turn blurs the lines between Church and State, which in turn further erodes the lost art of communication. This only deepens the divide.
The Sometimes Inextricable Church and State
One of the few tenets upon which the United States can rely is that religion and the law are both sacrosanct yet not mutually exclusive. More important, while a lawful but Godless society may endure, a devout but lawless nation is doomed to fail. Since the United States declared independence in 1776, the nation formed the U.S. Supreme Court, in part, to be the steady beacon of light during times of moral tempest. When in rare moments the United States tasks these nine legal scholars to play God, the nation should not condemn results when the Supreme Court adjudicates morality.
The continuum along which law and morality co-exist has historically evolved over time. Plessy v. Ferguson (1896) held that “equal but separate accommodations” did not violate the Fourteenth Amendment, and Brown v. Board of Education of Topeka (1954 ) held that it did. New York Times v. Sullivan (1964) finally extended the First Amendment protections to members of the press. Regents of the University of California v. Bakke (1978) restricted affirmative action on the basis that it leads to reverse discrimination. On occasion, a Justice issued a dissenting opinion that resonated long after interest in the majority waned. Such foreshadowing occurred with Justice Harlan in Plessy v. Ferguson (“There is no case here. Our constitution is color-blind.”), Justice Stewart in School District of Abington Township v. Schempp (“religion and government must necessarily interact in countless ways”), and Justice Scalia in Morrison v. Olson when he recognized the “allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish.”
All Is Fair In Love, War and Health Care
For today’s nation equally divided in moral crisis, the 2022 Supreme Court decision Dobbs v. Jackson Women’s Health Organization, rejecting Roe v. Wade, should come as no surprise, especially when health care itself has been mired in legal and moral controversy since 2010. In 2012 National Federation of Independent Business v. Sebelius relied upon the Constitution’s taxing authority to confirm the individual mandate was not a tax. That same year Douglas v. Independent Living Center issued an unthinkable advisory opinion so the Ninth Circuit could revisit anew challenges by Medicaid providers and beneficiaries to California’s rate reductions, probably much to the chagrin of Chief Justices Jay and Warren who outright refused to issue advisory opinions.
In 2021, the Supreme Court once again spared health care reform in California v. Texas, artfully crafting a decision holding the individual mandate unconstitutional, yet refrained from adjudicating its severability from the rest of health care reform due to the absence of standing. While health care reform hobbles along twelve years later, in June 2022 the Supreme Court eviscerated any nexus between an abortion and protections under the U.S. Constitution. Justice Alito held nothing back as he relied upon sound legal theories to reverse the 50-year old, somewhat flawed opinion in Roe v. Wade.
The Absence of Wisdom
While it may be difficult to challenge the legal acumen of any Supreme Court justice, Justice Alito failed to consider the role wisdom plays in seminal acts, such as rejecting a Constitutional protection half of a century in age. While the Constitution may not specifically mention the right to an abortion, for the past 50 years pro-choice advocates certainly rallied behind its cause as constitutional in nature. Nevertheless, in painstaking detail Justice Alito applies reasonable, legal support, often in the form of a history lesson, to conclude “Roe was on a collision course with the Constitution from the day it was decided.”
It may be difficult to compare the 29-page majority decision in Roe v. Wade with the 108-page slip majority opinion in Dobbs. Not surprising, between 1951 and 2013, the majority-opinion length increased from under 4,000 words to over 6,000 words, although abortion cases average over 8,000 words. Nevertheless, Justice Alito concluded the right to obtain an abortion is not “deeply rooted” in U.S. history and tradition, consistent with past decisions of the Supreme Court, including Bowers v. Hardwick (Justice White relied upon the historical prohibition against sodomy in denying constitutional protection to engage in private homosexual activity), Michael H. v. Gerald D. (Justice Scalia upheld a California law and ruled against the biological father on the basis of historical precedent) and Harmelin v. Michigan (upholding a mandatory sentence of life imprisonment without parole for possession of more than 650 grams of cocaine due to historical decisions).
In short, the Supreme Court looked beyond the last 50 years and concluded that abortion was generally a crime centuries before Roe v. Wade, and to effect change each state must rely upon its elected officials. This analysis incidentally aligns with Chief Justice Rehnquist’s opinion in International Society for Krishna Consciousness, Inc. v. Lee, a case which focused on the modern nature of airports and the dearth of historical tradition therein to justify free speech protection.
A Moral Impasse
Important to the most recent decision, the Dobbs Court looked beyond the doctrine of stare decisis, more often employed to restrain judicial hubris by respecting past justices who historically grappled with an important issue. In Dobbs, however, Justice Alito emphasizes stare decisis is not a commandment, and instead a doctrine weakest when the Supreme Court must interpret the Constitution. Justice Alito’s logic is legally sound, even though a totally opposite result would find equal support from the same historical decisions.
That Justice Alito’s historical canons may result in the use of other cannons still does not compromise the integrity of the Supreme Court, especially when its justices must regulate the nation’s morality when presented in the form of a justiciable legal issue. The Supreme Court concluded that states must decide the rules for abortion, just like the states do now for providing health care, as well as when to cease health care, intentionally and possibly prematurely, with minimal pain and suffering. Even health care privacy laws fall upon the shoulders of the states, with the federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) providing a floor from which states may pass heightened regulations without fear of preemption.
The Dobbs Era
A 2019 study on reported abortions in hospitals and ambulatory care facilities across the nation implied the impact from Dobbs will create logistical concerns in many states, most likely beyond the ability of any legislative body to cure. The fundamental divide across the nation exists not just state-by-state but within each state as well, a critical variable overlooked in the “quality of the reasoning” prong in Dobbs. The complications created by Dobbs cannot be cured through gerrymandering, yet at the same time it has never been the role of the Supreme Court to balance federalism within state lines.
The same 2019 study noted 80% of the reported abortions took place during the first 9 weeks of pregnancy. While Dobbs now permits Mississippi to prohibit abortions after 15 weeks of pregnancy, there is no longer any legal authority to prevent states from prohibiting abortions even sooner if not banning them altogether. Since a reversal of Dobbs any time soon may be unlikely, the battle over nuances is about to begin in both state and federal courts across the nation.
Article III of the Constitution may not be perfect, but its overall track record these past 234 years remains impressive. Until such time as an agreement can come from two-thirds of both Houses of Congress, or possibly three-fourths of the State legislatures should two-thirds of the States demand inclusion, the moral fate of the nation rests in the hands of nine justices appointed by Presidents Bush (both), Clinton, Obama, Trump and Biden, all of whom were voted into the office of the presidency by the Electoral College.
Craig Garner is the founder of Garner Health Law Corporation, as well as a healthcare consultant specializing in issues pertaining to modern American healthcare. Craig is also an adjunct professor of law at Pepperdine University School of Law. He can be reached at email@example.com.