• Robin Koerner

Pro-Choice. Pro-Rights. Pro-Law. Pro-SCOTUS


I am not a lawyer; I am not a woman; but I am most definitely an American.


I will fight for the right of women to have safe and legal abortions early in a pregnancy and under circumstances in which, according to my conscience, preventing them from doing so would be inhumane.


Unsurprisingly, then, I am deeply troubled by the prospect of what some states are now promising to do following the return to them of the regulation of abortion by the Supreme Court.


However, I am less concerned by the overturning of Roe v. Wade than I am by a particular fact about the commentary that I have so far read and heard since the ruling: what seems to be common to almost all of it is an utter lack of interest in engaging directly and seriously with any part of the Supreme Court’s Opinion.


I am very careful about throwing around the word “rights”. Politicians and media-types all too often use that word lazily to refer to legal entitlements and privileges, which are not the same thing at all.


However, inasmuch as I believe that the government goes beyond its bounds in (let us say) obstructing or punishing a woman who has an abortion under certain conditions, I believe that a woman does indeed have a right to an abortion under those conditions.


But it makes no sense for me to believe in, or claim, a right to abortion if I don’t believe in the concept of rights in general - and therefore in all other natural rights. These were famously and generally summarized in America’s founding documents as rights to life, liberty and the pursuit of happiness. A few of them were then specified in our country’s Bill of Rights.


If you haven’t read Roe v. Wade, and you haven’t read all of the Court’s opinions in Dobbs - the case that recently overturned Roe v. Wade - you simply do not have an opinion about what the Supreme Court actually just did. At best, you have an opinion about something that you imagine they did. Or you have an opinion about the morality and legality of abortion, and are directing your associated emotions at the wrong people and for the wrong reason. Or you simply don’t really care about the practical protection of all natural rights, focusing only on the one (abortion) that has all the attention at the moment.


The protection of our rights, safety and prosperity depends on the Rule of Law. At least, that is how America is designed. If you can design a country that protects those things without the Rule of Law, go for it – but realize that it is an entirely hypothetical exercise and don’t expect that anyone else could or would want to live in it. History suggests it would be a dystopia.


Courts do not make laws.


Courts – when they are doing their job in a liberal democracy, at least - are independent of the legislators who do make the laws. They ensure that all bodies in the nation – including the Executive, which is better placed than any other institution to violate people’s rights – follow the law. Since governments impinge on rights all the time, the courts are there to stop them, and they do so by forcing governments, along with everyone else, to operate within the limits of the law.


Sometimes good laws are made; at other times bad laws are made. Courts are responsible for neither of those. Rather, courts are responsible for ensuring that each law does what it was written and/or intended to do. Only when courts do that does the law stably serve its purpose. Good law serves justice and rights. Bad law does the opposite.


By doing its job without fear or favor, prejudice or politics, a good court ensures the good effects of good laws.


The USA is fortunate in having a Constitution that further enables a good court to prevent the bad effects of bad laws that violate it.


People who care about rights – all rights (including but not limited to the right of a woman to have an abortion, if you believe such a right exists) – should not accept any court’s rewriting of law to suit the political, cultural or religious views of its judges, even when those views agree with their own.


Now, clearly judges are not robots, computers or algorithms. If they were, one would expect different judges, acting sincerely, to interpret the same law in the same way – and the Supreme Court would decide everything 9-0. That does not happen.


In short, you are not serious about the Rule of Law, and thereby all rights and thereby all people if your analysis ends at noticing whether the Court decides a case in a way that produces a situation that you like. Rather, a genuine passion for the protection of law, rights, and people, demands determining how and why the members of the Court reach their opinion – whether you like it or not, and whether you like its consequences or not.


You are certainly not entitled to direct righteous anger or indignation at judges for an opinion you’ve not read - for without reading, you cannot with honesty opine on their competence – let alone their intent.


The Supreme Court’s opinion in Dobbs (overturning Roe v. Wade) is 213 pages long. Like all Supreme Court opinions, it is eminently readable by any moderately educated American.


The Dobbs majority did not write the Constitution. It did not write any of our abortion laws.


The question at issue concerning their decision is whether they correctly interpreted the Constitution and in particular the 14th amendment, properly applying legal principles, such as stare decisis, in so doing.


The question at issue concerning the right to abortion in the USA is rather different: it concerns laws regulating abortion – both that have been made and that are yet to be made. The Supreme Court has nothing to do with this question and, if we care about rights, our democracy and our country, we should be very glad, or perhaps in this day and age relieved, when the Court limits itself accordingly.


Ironically, perhaps, that’s exactly what Dobbs majority reminded all of us of:


The [Roe v. Wade] opinion spent many paragraphs conducting the sort of fact-finding that might be undertaken by a legislative committee, and did not explain why the sources on which it relied shed light on the meaning of the Constitution… The scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might be expected from a legislative body.

Reading Dobbs, sincere and intellectually honest people will of course be swayed differently by its diverse arguments on all sides. (This is why, one expects, we get split Court opinions at all.) But a fair, let alone accurate, assessment of what the Supreme Court just decided requires, at a minimum, reading the full opinion with an open mind – a mind committed to Truth, rather than to one’s own answer to the moral question of abortion, which is by no means equivalent to the legal question that the case was fought to settle.


Confirmation bias and many other factors, conscious and unconscious, are bound to distort our evaluations of competing arguments in legal opinions. That fact does not undermine the aforesaid: it makes it all the more critical.


As a pro-choice individual, reading the dissent in Dobbs unsurprisingly made me all the more concerned for the women who will face the consequences of what I would regard as Draconian (I could use stronger words) anti-abortion laws in some states. Nevertheless, reading all of the opinions in the manner I insist is demanded of any serious citizen, I found myself unable to argue with the thrust of Justice Kavanaugh’s 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. The text of the Constitution does not refer to or encompass abortion. To be sure, this Court has held that the Constitution protects un­enumerated rights that are deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty. But a right to abortion is not deeply rooted in American history and tradition, as the Court today thoroughly explains. On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress—like the numerous other difficult questions of American social and economic policy that the Constitution does not address.

Ultimately, this concurrence reflected the view that I formed, uneasily and uncertainly, having read the requisite 250 or so pages.


Good people may disagree with me because they disagree with Kavanaugh here, favoring the Dissent’s refutation of his claim to the neutrality of the Constitution on the matter. That is for the good – but to do so, they must at least have read that Dissent, and all of those parts of the majority opinion that bear against it.


I also found myself strongly persuaded by Chief Justice Roberts’ opinion, concurring only in judgment. An honest and even faintly impartial reading of Roe v Wade, it seems to me, lends overwhelming weight to the Chief Justice’s position, that even if some of the basic principles in Roe v. Wade can be retained (as he says they should be), the specifics of its findings - which is to say the particular ways in which Roe v. Wade purports to manifest those principles in practice - are so arbitrary as to make absurd the claim that they can be rooted in the Constitution and so must be jettisoned. In any case, Roberts effectively points out, those particulars have no basis strong enough to strike down the rather reasonable and, (frankly) pro-choice Mississippian law that was at issue in Dobbs.

Others may disagree with me here, too, but they only get to do so once they have read the thing they claim to be disagreeing with me about.


If we deride our Judiciary for refusing to do the job of our legislatures and, indeed, ourselves as electors and citizens, then we deride our country for not replacing the Rule of Law with the Rule of Men, which is tyranny. Once that attitude prevails, it’s not just abortion rights we need to worry about: it’s every single right we have.


Obviously, I don’t like the state of our country now with respect to abortion. I have that pit-of-my-stomach feeling as we face the prospect of often ill-informed, righteous victimization of some women in some states as we enter a phase of massive legal and political transition. I am already wondering about how we shall get abused women in South Dakota (for example) across state lines for procedures that (from my perspective) only an ideologue could punish them for having in the circumstances in which at least some women will be seeking them.

But that is not the only pit-of-my-stomach feeling that I’ve been suffering from in relation to the Supreme Court. I have been reading its opinions for a good while now, and have developed a not altogether dissimilar feeling about the threat to our basic rights posed by SCOTUS decisions that seem to do the very opposite of what the Dobbs majority was at least claiming, and I believe sincerely trying to do. Those are the SCOTUS decisions that change the meanings of words and defy simple logic in ways that could be identified even by the average high-school student. (I recall, specifically, in this respect, Bostock v. Clayton County, Georgia.)


To quote the late Justice Antonin Scalia,


When words have no meaning, democracy cannot function.

This is no mere expression of a hypothetical fear or an abstract concern: Scalia’s words are being proved right in many areas of our cultural and political life today.


Thankfully, America: we can have our cake and eat it.


On the one hand, we can have a judicial system that does its job, finding (whether we agree with it or not) no right to abortion in the Constitution; and on the other we can have safe, legal abortions - as does (almost?) every other developed nation in the world. Those nations didn’t get them by importing our American Constitution. They did it by legislating (as the Dobbs majority commends to us) in the usual and proper fashion.


As the Dissent pointed out, the immediate aftermath of Dobbs is going to have real and, I suspect in some instances, awful human consequences in the immediate future. We have a moral responsibility to the people who will face them. For all of the reasons described here, however, the blame for that state of affairs does not lay where most people on my side of the abortion issue seem to want to lay it.


Unless you have read Dobbs and with, your hand on your heart, see disingenuousness or dishonesty in the majority opinion and its concurrences, then direct your righteous energies to doing the thing that we should have done long ago and that, ironically, (precisely as Justice Alito told us,) Roe v Wade actually prevented us from doing. That this is legislating directly for, safe and legal abortions within appropriate limits, in response to democratically made demands.


There are many fights ahead on abortion and on other issues of great moment in the lives of our fellow Americans. But let us have them in a country where the fights are worth having because not only do we get to choose our representatives who are fighting them for us (rather unlike the members of the Supreme Court), but also - and much more importantly - we have a judiciary that ensures that the outcomes of those fights, enshrined in law, can be relied upon.