Dobbs Sentences #96: Part II B 2 c

October 4, 2023 · by · in Uncategorized · Leave a comment

As always, you can find the Dobbs v. Jackson decision here.

Paragraph 6 of 6

Sentence 3 of 4

Here’s a slightly more complex sentence:

“And though Roe discerned a “trend toward liberalization” in about “one-third of the States,” those States still criminalized some abortions and regulated them more stringently than Roe would allow. Id., at 140, and n. 37; Tribe 2.”

I see three claims:

  • “Roe discerned a ‘trend toward liberalization’ in about ‘one-third of the States’.”
  • “[T]hose States still criminalized some abortions.”
  • “[T]hose States regulated [abortions] more stringently than Roe would allow.”

The first claim should be easy enough to check out:

  • “Roe discerned a ‘trend toward liberalization’ in about ‘one-third of the States’.”

Here’s the cited passage in Roe on page 140:

“In the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws, most of them patterned after the ALI Model Penal Code.”

So that checks out. That feels good. How about footnote 37?

“Fourteen States have adopted some form of the ALI statute. See Ark.Stat.Ann. §§ 41-303 to 41-310 (Supp. 1971); Calif.Health & Safety Code §§ 25950-25955.5 (Supp. 1972); Colo.Rev.Stat.Ann. §§ 40-2-50 to 40-2-53 (Cum.Supp. 1967); Del.Code Ann., Tit. 24, §§ 1790-1793 (Supp. 1972); Florida Law of Apr. 13, 1972, c. 72-196, 1972 Fla.Sess.Law Serv., pp. 380-382; Ga.Code §§ 26-1201 to 26-1203 (1972); Kan.Stat.Ann. § 21-3407 (Supp. 1971); Md.Ann.Code, Art. 43, §§ 137-139 (1971); Miss.Code Ann. § 2223 (Supp. 1972); N.M.Stat.Ann. §§ 40A-5-1 to 40A-5-3 (1972); N.C.Gen.Stat. § 14-45.1 (Supp. 1971); Ore.Rev.Stat. §§ 435.405 to 435.495 (1971); S.C.Code Ann. §§ 16-82 to 16-89 (1962 and Supp. 1971); Va.Code Ann. §§ 18.1-62 to 18.1-62.3 (Supp. 1972). Mr. Justice Clark described some of these States as having “led the way.” Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Loyola U. (L.A.) L.Rev. 1, 11 (1969).”

“By the end of 1970, four other States had repealed criminal penalties for abortions performed in early pregnancy by a licensed physician, subject to stated procedural and health requirements. Alaska Stat. § 11.15.060 (1970); Haw.Rev.Stat. § 453-16 (Supp. 1971); N.Y.Penal Code § 125.05, subd. 3 (Supp. 1972-1973); Wash.Rev.Code §§ 9.02.060 to 9.02.080 (Supp. 1972). The precise status of criminal abortion laws in some States is made unclear by recent decisions in state and federal courts striking down existing state laws, in whole or in part.”

Yikes. Well, the claim In Dobbs is true even if we don’t know yet that the claim in Roe is true. That can be dealt with later. How about the second and third claims, though?

  • “[T]hose States still criminalized some abortions.”
  • “[T]hose States regulated [abortions] more stringently than Roe would allow.”

This will take a lot of checking. Maybe it’s in the Tribe text, but I don’t have access to that at the moment. I guess those two will have to remain undetermined.

So I have one true claim:

  • “Roe discerned a ‘trend toward liberalization’ in about ‘one-third of the States’.”

And two undetermined claims:

  • “[T]hose States still criminalized some abortions.”
  • “[T]hose States regulated [abortions] more stringently than Roe would allow.”

And in preparation for the time I check these sources:

  1. Ark.Stat.Ann. §§ 41-303 to 41-310 (Supp. 1971);
  2. Calif.Health & Safety Code §§ 25950-25955.5 (Supp. 1972);
  3. Colo.Rev.Stat.Ann. §§ 40-2-50 to 40-2-53 (Cum.Supp. 1967);
  4. Del.Code Ann., Tit. 24, §§ 1790-1793 (Supp. 1972);
  5. Florida Law of Apr. 13, 1972, c. 72-196,
  6. 1972 Fla.Sess.Law Serv., pp. 380-382;
  7. Ga.Code §§ 26-1201 to 26-1203 (1972);
  8. Kan.Stat.Ann. § 21-3407 (Supp. 1971);
  9. Md.Ann.Code, Art. 43, §§ 137-139 (1971);
  10. Miss.Code Ann. § 2223 (Supp. 1972);
  11. N.M.Stat.Ann. §§ 40A-5-1 to 40A-5-3 (1972);
  12. N.C.Gen.Stat. § 14-45.1 (Supp. 1971);
  13. Ore.Rev.Stat. §§ 435.405 to 435.495 (1971);
  14. S.C.Code Ann. §§ 16-82 to 16-89 (1962 and Supp. 1971);
  15. Va.Code Ann. §§ 18.1-62 to 18.1-62.3 (Supp. 1972).
  16. Mr. Justice Clark described some of these States as having “led the way.” Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Loyola U. (L.A.) L.Rev. 1, 11 (1969).
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