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Less Free
We all want to be free — to be able to do whatever we want, as long as we’re not hurting somebody else. That is part of the deal we enter into in forming a free society. Simple.

But that’s just the first part of the deal. The second part is not so simple. Somehow, we have to agree on what counts as “hurting somebody else.” That’s where the law comes in. And elections…and the courts.

Historically, the courts tend to step in to preserve individual rights against overreach by the state or society in general. The recent overruling of Roe v. Wade is a rare exception to that rule. That decision takes away the right of a woman to have an abortion — a right that existed for 50 years.

Those who have opposed that right argue that the fetus itself is an individual, and that it has the same right to continue as any of us, even though it may be completely dependent on another individual to maintain life. That is essentially the view taken by the court in Dobbs v Jackson Women’s Health Organization in ending Roe.

I disagree with that view. My understanding of the word “individual” is considerably different from theirs. Individuals stand separate and alone. The exact moment when that occurs, of course, is pretty uncertain. Roe pinned the time at the moment of fetal “viability,” but that moment has been steadily pushed backwards by developments in medical science. That inherent vagueness should be a cause for concern, in my view, but not a cause to strip a women of dominion over her own body.

Furthermore, if giving birth itself were to threaten the life of the mother, then she should have the right to defend herself, no matter if the fetus is viable or not.

87% of my fellow citizens agree with me on that point. 84% support the mother’s right to choose in cases of rape and incest. 64% support Roe as written. A strong majority of citizens do not agree that abortion of a fetus before it is viable counts as “hurting somebody else.” The deal we have all made in creating a free society, then, has been broken by our Supreme Court. That is a violation more fundamental than any mere statutory offense. Or even a Constitutional one.

The chief, unspoken argument that the Court is making is not a legal one. The reasoning in Dobbs, is largely facile and dismissive. No attention is paid to those who will be hurt by this decision. What cannot be argued, however, is that the Court had the power to do this. They had the votes to do it, and they used them. They had a very specific agenda, and they pursued it in spite of the law and the will of the people.

If that seems overstated, then I invite you to read Clarence Thomas’ concurring opinion in Dobbs. He makes no effort to hide his disdain for established law or the views of the electorate. He declares with pride that he wants to similarly overrule cases that establish rights to practice contraception, have sex with whomever we want, and marry the person we love.

I don’t think there is a majority or even a near-majority of public support for taking away these established rights. Nor is anyone hurt by their free exercise. Thomas is simply offended that these rights exist. All he needs to do is convince four of his fellow conservative justices to go along with that agenda.

They will do it because they can, our free society be damned.

Please Note: Tim Eagan will read your comments but he is currently not publishing them.

Yes, voting matters. Polls do not.
~ H, Santa Cruz