Catechism trumps US Constitution at SCOTUS

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court decision that reversed Roe v. Wade, the five justices of the United States Supreme Court who voted in favor of the reversal embraced Mississippi’s statutory definition of a fetus as an unborn human being. This definition is not an accredited scientific definition, but is based on religious doctrine. It gives the Court leeway, however weak, to exclude the right to abortion from constitutional protection afforded to other rights, which the Constitution is obligated to secure.

In doing so the majority of five ignored the very texts of the Constitution to which they were sworn to protect and defend. The decision leaves the States free to criminalize women, doctors and others who care and medically treat them. It ultimately changes a religious sin into a criminal act. It encourages religion to use the power of the state to enforce religious beliefs on other Americans who may believe that abortion should be a personal and private option for the pregnant woman to decide with her doctor and family if she so chooses.

The Court acknowledges in its opening statement that “Abortion presents a profound moral issue on which Americans hold sharply conflicting views.” Moral issues are personal and should be individually resolved, not decided by legislative fiat.

For starters, the majority opinion written by Justice Samuel A. Alito, Jr. implicitly adopts the religious belief that human life begins at conception, a concept neither mentioned or contemplated by the founders and authors of the Constitution, but used excessively by those who would deny women their right to reproductive freedom.

Continuing, the majority opinion acknowledges that until ROE v. WADE, the tradition of prohibiting abortion existed both prior to and after the adoption of the Constitution. The Court ignored the historical fact that prohibiting abortion was a tradition imposed on Western civilization by first the Catholic Church and later embraced by many of the Christian denominations which arose out of the Reformation. That religious tradition, like many others was carried over into the New World.

The Constitution was ordained by the American people to protect them from both government and religious intervention in all freedoms derived from natural law and divine providence That was the primary purpose of the American Revolution.

These freedoms existed long before the dream of America became a reality. They were written about for many centuries; and the history of humanity is rife with the struggle to be free from slavery, oppression, totalitarianism, and human indignity.

The only responsibility delegated to the government regarding these freedoms, was simply stated in the Preamble, to “secure [for ‘We the people’] the blessings of liberty” and most assuredly, to be free from religious oppression or domination as again simply stated by the very first words of the 1st Amendment that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; …”

In support of the reversal of Roe v. Wade, Justice Alito opines that there is no constitutional right to an abortion within the context of the Constitution. Since the Constitution is not the source of any of our rights, the presence or absence of “constitutional rights” is irrelevant to the discussion and misleading to the public.

Justice Alito also asserts that the Constitution is silent as to reproductive rights. The 4th Amendment acknowledges quite properly that there is a fundamental “right of the people to be secure in their persons … “

This acknowledgment that the government may not violate this right of a person to be secure in his/her person, except under very specific circumstances, obligates both the federal government and through the 14th Amendment, the States and all lower level governments from unreasonably interfering in the reproductive rights of women.

In response to any rebuttal of the aforementioned position, I would point out that the 2nd Amendment acknowledging the right to keep and bear arms by individuals ignores the first words of that amendment, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed” (Emphasis added). In acknowledging a personal right to keep and bear arms the court correctly expanded the meaning to incorporate the individual right.

Applying the same constitutional construction to the 4th Amendment Clause: “the right of the people to be secure in their persons” can only lead to constitutional recognition of a woman’s right to reproductive choice including the right to terminate a pregnancy before there is medical certainty that a fetus is viable.

The Court should correct its decision and recognize a woman’s reproductive rights including but not limited to the right to choose to terminate a pregnancy free of intimidation prior to viability of a fetus certified by her physician. The Court should include in the corrected opinion a mandate prohibiting the States from banning the procedure, but allowing reasonable and rational regulations, subject to judicial review, to assure the health and safety of the women who choose the procedure.

The U.S. Supreme Court’s decision if left standing is itself flawed law; it fails to “secure the blessings of liberty” for the American people, opens up a new Dark Age of Repression for women, may lead to repression of other freedoms for other Americans, and is inimical to the American Dream.

If you wish to comment or respond you can reach me at melpearlman322@gmail.com. Please do so in a rational, thoughtful, respectful and civil.

Mel Pearlman holds B.S. & M.S. degrees in physics as well as a J.D. degree and initially came to Florida in 1966 to work on the Gemini and Apollo space programs. He has practiced law in Central Florida since 1972. He has served as president of the Jewish Federation of Greater Orlando; was a charter board member, first vice president and pro-bono legal counsel of the Holocaust Memorial Resource and Education Center of Central Florida, as well as holding many other community leadership positions.