Wednesday, August 10, 2022

Dobbs v. Jackson Women’s Health Organisation – Veterans Today

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The ground-breaking Supreme Court decision in Dobbs v. Jackson Women’s Health Organisation (Case No 19-1392, argued December 1st 2021, decided June 24th 2022) has finally seen the end of the shameful decisions in Roe v. Wade (410 US 113) and Planned Parenthood v. Casey (505 US 833). In reality both Wade and Casey were political, not legal decisions – a “raw exercise of judicial power”, to quote the minority opinion in Wade. Sadly the decision comes too late for the more than 60 million Americans aborted since Wade was decided in 1973.

The majority’s opinion follows the lines of the draft disgracefully leaked in May, it would seem by one of the minority justices’ law clerks. To their immense credit the majority refused to cave in to pressure to change their minds, including a death threat. (I suspect that the Germans are already regretting murdering Justice Scalia, which would have hardened opinion on the Court.)

The DVD, usually using sister agencies, such as GO2 in Britain and the Correa Group in Frankfurt, is unique in that it systematically eliminates judges with an independent spirit of mind. The assassination of Justice Scalia in February 2016 was preceded by the equally shameful assassination of Lord Justice Pumfrey on Christmas Eve 2007, which had a chilling effect on the British judiciary.

(Sir Nicholas Richard Pumfrey). (A High Court Judge Chancery Division
Universal Pictorial Press Photo).

The procedural history

Dobbs was a certiorari from the Fifth Circuit Court of Appeals. Dr Thomas Dobbs is, at least until next month, Mississippi’s State Health Officer. Jackson Women Health’s Organisation is an abortion clinic based in Jackson, Mississippi. They challenged the state’s Gestational Age Act, which provides for a 15 week limit on abortions save to save the life of the mother or in the case of severe fetal abnormality.

Laboring with respect under the delusion that Roe v. Wade was rightly decided, Judge Carlton Reeves of the US District Court for the Southern District of Mississippi issued a permanent injunction in favor of the clinic, in November 2018. The Fifth Circuit Court of Appeals unanimously upheld Judge Reeves in December 2019. The Court of Appeals made the classic error, with respect, of being persuaded by the length of time Wade stood rather than analysing the quality of its reasoning, if reasoning is not too strong a word with respect.

The majority opinion

The majority (Associate Justices Alito, Thomas, Kavanaugh, Gorsuch and Barrett) avoided the trap. In two opinions (Justice Thomas delivered a concurring opinion) laced with intellectual rigor the majority dismantled Wade’s desperately thin reasoning. The idea that George Washington and Thomas Jefferson believed they were giving women the right to have an abortion only has to be stated for its absurdity to be apparent. It is equally inconceivable that any of the proposers of the 14th Amendment in 1868 thought that they were creating a constitutional right to have an abortion.

As the majority held the Wade court fell not just into error, but into egregious error. The decision in Wade came out of nowhere. Aside from a few scattered cases in the lower courts in the early 70s there was simply no support at all for the idea that there was an implied constitutional right to an abortion.

It is far from clear that the 14th Amendment was ever intended to create any substantive rights at all. The amendment, passed after the Civil War, was all to do with due process. There is much to admire, with respect, in the concurring opinion of Justice Thomas, whom I’ve not met, but who once swore in a friend of mine (John Bolton) at the State Department. Justice Thomas has a fine legal brain and his questioning of the concept of hanging substantive rights on the 14th Amendment is fully reasoned.

It is likely that the Court will overrule other 14th Amendment based decisions, for example on contraception and gay marriage. Overruling bad law does not of course mean banning contraception or gay marriage, any more than the Dobbs court banned abortion. All the Court has held is that abortion is a matter for the states, subject to rational review. Put another way the states can adopt any abortion law they like, as long as it’s not completely mad.

Not the least attractive feature of the majority’s reasoning was the breadth of their historical research. I particularly enjoyed the reference to the great Henry de Bracton, one of England’s finest ever historical scholars – I am one of very few advocates who has quoted Bracton to an English court in recent years.

Henry de Bracton

Bracton lived in the 13th century, in Devon, as it happens, in the High Middle Ages. He did not live in the Dark Ages, as the minority seemed to think. There is no doubt that the Wade court got the common law wrong, indeed hopelessly wrong, with respect.

Amongst the cases cited by the majority was that of Eleanor Beare, from 1732. She was very properly sentenced to two days in the pillory and two years in prison for causing another woman to miscarry.

Dobbs will also be a landmark case on the doctrine of stare decisis, or precedent. The majority set out a fully supportable, workable set of guidelines on when to overrule a doubtful precedent. When a court goes off the rails as badly as the Wade court did, no offense intended, its decision should be overruled, period. This was the great weakness of Casey – it emphasised precedent over reason and entrenched error.

The Minority Opinion

The minority opinion is distinguished, if that is the right word, by rancor, confused political thinking and an over-rigid approach to precedent, which would have left Jim Crow laws in place. It’s essentially a treatise on the benefits of abortion. It makes no serious attempt to ground the supposed right to abortion in the Constitution.

No allowance is made for the rights of the unborn child. This is the great weakness in the feminist argument. From the moment of conception a third life is involved, in addition to that of the two parents. A woman’s body may be her own, but her child’s body is not. A mother does not own her child, as though she were a slave-owner and her child a slave.

Of course the unborn child is defenseless and cannot speak for himself or herself. That’s the whole point of abortion law – to protect the weak and helpless child. Yes pregnancy can be difficult and at times fatal, although it is not an illness. Abortion however is invariably fatal for the child.

I am not saying that abortion is wrong in all circumstances. The Mississippi law itself permits terminations to save the life of the mother, which must be right, and in the case of severe fetal abnormality. I would go further and add rape and incest.

In the case of rape a woman has no choice. I agree that the unborn child is innocent and a second victim, but it seems to me to be a harsh thing to expect a woman to carry a rapist’s child to term and then bring that child up as her own. It is a rare rapist who returns to offer child support. In the case of incest there is too great a danger of inbreeding and of the child growing up to be a Democrat. Consent will also be in issue in most cases of incest.

I suspect that unlike Roe v. Wade, Dobbs v. Jackson Women’s Health Organisation will stand the test of time. It’s good law. There are also lessons for the counter-intelligence community. Wade was so poorly reasoned that it is a reasonable inference that bribery or blackmail pressure from German intelligence was involved. There are echoes of the notorious, anti-Semitic decision of the House of Lords in Liversidge v. Anderson [1942] AC 206 in World War II, where the judges caved in to pressure from the German controlled Cabinet Office.

The by-elections

The Tories predictably crashed to defeat in the Wakefield and Tiverton by-elections. The latter saw the heaviest defeat of a governing party in a by-election in British political history. Labour won in Wakefield and the LibDems in Tiverton and Honiton.

The Tories only had themselves to blame for Wakefield. They’ve stood by and done nothing whilst defendant after defendant was sent down on stale sex allegations which should never have reached a jury. The former Tory MP for Wakefield, Imran Ahmad Khan, was sent down at Southwark Crown Court in April on an uncorroborated allegation from a man who alleged that Imran had sexually assaulted him in 2008. He waited until after Khan was elected before deciding that he had been assaulted.

Imran Ahmed Khan

We need a statute of limitations for sex offenses and we need it badly. No sexual allegation should be allowed to proceed after more than six years have elapsed, or, in the case of minors, three years after the attainment of majority. Moreover sexual allegations should be corroborated.

Imran was convicted at Southwark, the most corrupt Crown Court in England, with respect, where the Cabinet Office and Ministry of Justice have set up special jury-tampering arrangements. The government know about the jury-tampering in my own trial at Southwark and have done nothing about it.

Their lack of commitment to the Rule of Law was always going to come back and bite them. There is no reason at all why Imran should have been tried at Southwark. As in my case the trial was probably only sent there because the prosecution case was known to be made-up nonsense and only a tampered with jury would be likely to convict.

Tiverton was also a self-inflicted wound. Neil Parish, the former MP, was thrown under a bus after his online search for Dominator combine harvesters led to a different sort of dominator, or, to be more precise, dominatrix. (What did he expect, using Google?). Yes it was a little bit naughty to keep going back to the dominatrix’s site, but the episode had its funny side. Had the Tories held their nerve it would have blown over once gas reached £2.00 a liter.

As it was, trying to win a by-election in a rural seat like Tiverton, where all the local railroads were closed by the mad German spy Dr Beeching (the inspiration for the…

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