Solicitor General and attorneys for Clinic Respondents Need File Petition for Rehearing on Dobbs- abortion case

CJ Roberts may get J Kavanaugh to join him if 13th Amendment Issue Raised

My July 9 post on how the MS abortion law violates the Thirteenth Amendment has been viewed by the Solicitor General and attorneys for Respondent clinics and many amici brief filers. As long as they file their Petition for Rehearing under SCt Rule 44 within 25 days of the Dobbs decision, it will be timely. The Court then decides whether they want the MS Petitioners to file a response.

In my view after 51 years of law practice and reviewing the SCt decisions under the Thirteenth Amendment, including the 1988 decision by Justice O’Connor referenced in my July 9 Newsletter-legal brief, provides a strong basis to argue the MS 15 week standard for allowing an abortion, or the total ban if they are allowed, violates the Thirteenth Amendment. No Justice nor any Parties or the United States made the Thirteenth Amendment argument before the June 24, 2022 Dobbs decision. So any consideration of what forms of involuntary servitude affecting a pregnant woman will be allowed is a “virgin” issue for the Court.

The Court has an obligation to consider the impact of the Thirteenth Amendment on abortion before it enforces its ban on abortion, if so banned by state law, as the decision will literally affect millions of women as it already has changed the lives of millions.

If the Solicitor General and the attorneys for Respondents fail or refuse to file a Petition for Rehearing, they will forego the only opportunity to reinstate Roe-Casey or some modification of their standards.

CJ Roberts was seeking to obtain one of the five Alito supporters for a moderate position maintaining Roe-Casey, and not overruling them, but with perhaps some modification of the Roe-Casey standards. But he could not get any of the five to break ranks and join him in a moderate position.

Now I am going to engage in reasonable SPECULATION, but for which I do not have conclusive proof. I believe Justice Thomas gave the Alito draft opinion to his wife Ginni so she could and did give it to Politico for publication. Thomas did so to prevent Kavanaugh and any other Justice from breaking ranks with the Alito Group of Five. This was Thomas chance to stop legal abortion and he dud not want to be stopped so he could fulfill his 25 year effort to overturn Roe v. Wade, despite his Senate sworn testimony that he never considered abortion while in law school or at any time before his confirmation hearing. An unbelievable claim, then and now.

So, if the Petition for Rehearing is granted, CJ Roberts will only need to pick-off one of the Alito five to hold that abortion bans or other limitations violate the Thirteenth Amendment. Then there will be a 5-4 Supreme Court decision reinstating Roe-Casey, but perhaps with some modifications.

So there is every reason for the Solicitor General and counsel for the clinic Respondents to file that Petition for Rehearing raising the Thirteenth Amendment issue. CJ Roberts will then have the opportunity to get another Justice to join his moderate concurrence, and if he can negotiate with the three dissenters on a mutually acceptable resolution, Roe-Casey may be reinstated but perhaps with some modification of the standard or timeline when an abortion may be permitted despite any state statute to the contrary.