This post is about abortion. Viewer discretion is advised…

When is abortion NOT controversial, so I felt it was necessary to open with the equivalent of a movie black screen MPAA warning… you’ve been warned…

The right to have an abortion was decided via Roe v Wade on January 22, 1973 by a 7-2 vote of the Supreme Court of the United States.  All male Justices. 

Roe v Wade was overturned by the Supreme Court of the United States by a vote of 5-4 on June 24, 2022. Two liberal women, one conservative woman. 

Polls on support and dissent are varied and numerous. But the average is pretty consistent:  2/3 of Americans support abortion access. The lowest poll number I’ve seen is 60%. Of course, women alone will register a higher percentage because the issue of abortion crosses party lines – Democrat and Republican. 

Midterm elections take place in the United States on Tuesday, November 8, 2022.

Prediction: Abortion will be the central issue in deciding who our next Congress will be…

So now the issue of abortion has been put in the jurisdiction of each individual state. Therefore, there is still hope for abortion access for those who make the choice, but, it does also make the choice less available to all without question. Now to the issue of question…

How is it abortion doesn’t fall under HIPAA?

HIPAA is the Health Insurance Portability and Accountability Act of 1996. Its a federal law that required the creation of national standards to protect sensitive patient health information from being disclosed without the patient’s consent or knowledge.

This also begs the question of how abortion became a procedure up for political debate as opposed to a personal, private consultation and procedure between a patient and their physician. HIPAA didn’t come along until 1996, so, it could potentially be a relevant remedy to this debate as well. Let’s stay tuned…

But for now, abortion is on the ballot and women are the voters.

As for the Supreme Court, consider this…

The Court is supposed to be nonpartisan. The fact that we speak about the Justices as conservative and liberal suggests otherwise. Five justices voted to overturn and four voted to uphold. Six Justices are considered conservative and three are considered liberal. Take a guess at who voted what…

The fourth vote?  Chief Justice John Roberts. So what was his intention voting to uphold?

He is reported as making the decision for the good of the Court. He felt overturning Roe v Wade would fuel unnecessary issues for the Court:

1. Court packing. Conservatives don’t want to add seats to the Court. Liberals do. This decision has given the possibility more voice for liberals.
2. Violence against Justices. Death threats, protests outside private residences, stalking. 
3. Getting the Court closer to the political realm as opposed to further away. Now even more, Americans see the Court as political. 

An argument can also be made that sending the issue back to the states removes the Court from the political discourse. But the reality is that while the politics go back to the states, it is likely to expose the Court to a potential flood of Roe v Wades in the future. 

Let’s give Justice Roberts credit for being more pragmatic than the other Justices and give him credit for being exactly what he should be… Chief Justice. 

The next debate becomes how this happened/why this happened…

It is well known in legal circles that Roe v Wade was a flawed decision. Both liberal and conservative have acknowledged the ability to poke holes in the rationale. The suggestion is that Roe v Wade reached the correct result, but got there through the wrong rationale. And for the better part of two decades, the threat of being overturned loomed through the Capitol and through the Court.  This is not a surprise.

Basically, the 14th amendment provides equal protection under the law and the due process clause guarantees the right to privacy. The 9th Amendment states that the rights not specified in the Constitution belong to the people, not the federal government.  

You’ll be interested to know that there is no specific right to privacy expressed in the U.S. Constitution, but there is consensus on an implied, fundamental right to privacy. This is why the legal community could never make sense of Roe v Wade.  I read through several amendments in an attempt to find some commitment to privacy and it’s just not there. 

HIPAA makes more sense as a reason to make abortion legal at the federal level than the Constitution. Its actually more specific, valid and compelling. 

The election is Tuesday, November 8, 2022…

I am reserving the following for an update after that date. Let’s catch up then…