Abortion, the courts, and the need to pass laws via the democratic process

As we await the final Supreme Court decision on abortion, we should all do well to remember the the Courts are no substitute for the Democratic process.  As the late Justice Ruth Bader Ginsberg put it, “Doctrinal limbs too swiftly shaped may prove unstable.”  This is especially true when even liberal legal scholars believe Roe v. Wade was wrongly decided.

A right discovered by judges, detailed in a court’s ruling, and effectively created by judicial fiat can be just as easily taken away in the same manner.  A precedent is not an amendment to the Constitution or a duly passed law supported by a filibuster proof majority of Senators.  It’s far more fragile, and far more subject to the whims of the few or the vagaries of the judiciary process with lifetime appointments based on the occupant of the Oval Office.  Generally speaking, this has been a good thing throughout history, where atrocious, immoral decisions have been refined or overturned entirely over time.  In 1896, for example, the Supreme Court ruled that blacks and whites could be separated by race in Plessy v Ferguson, setting the stage for generations of segregation under a completely unworkable, unfair, and racist “separate but equal standard.”  It wasn’t until 1954 that the Supreme Court overturned the horrific ruling on equal protection grounds, and began the long process of integration in schools following Brown v Board of Ed.  The Courts have likewise revised their positions on fundamental rights like free speech, from jailing socialist dissidents for the crime of distributing anti-war pamphlets in the early 1900’s to finally embracing the modern vision of the First Amendment in the 1970s.

There have also been occasions where Supreme Court decisions were revisited and overturned by the proper passage of an Amendment to right historical wrongs.  In the infamous Dred Scott decision, the Court ruled that the US Constitution and the rights of citizenship didn’t apply to people of African descent, whether born as slaves in the South or free in the North.  The case arose when Dred Scott, a slave from Missouri, was taken by his owner into Illinois and Wisconsin territory where slavery was illegal.  When Mr. Scott was returned to Missouri, he sued for his freedom claiming his legal status changed once he set foot on free soil.  The Supreme Court ultimately disagreed, and in a 7-2 decision, Chief Justice Roger Taney wrote that people of African descent “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”  The decision was controversial even in March of 1857, widely seen as a harbinger of the Civil War, but it ultimately wouldn’t be overturned by the courts themselves.  The passage of the Thirteenth and Fourteenth Amendments was required to supersede the will of the Court.

Today, we are confronted by the potential of another controversial Supreme Court decision, one many conservatives feel fits the mold of righting a historical wrong while most on the left stridently disagree, believing it repeals an important right in an undemocratic manner.  The result appears to be yet another partisan battle with each side accusing the other of various atrocities, either baby-killing if you are a conservative or relegating women to second class citizens, one step removed from The Handmaid’s Tale if you are a progressive.   At the risk of sounding like Solomon and splitting the figurative baby in half, both sides are actually correct in many ways.  It is possible to believe Roe v. Wade was wrongly decided while still supporting the overall outcome.  In fact, this was exactly the late Justice Ruth Bader Ginsberg’s position, who noted that “Doctrinal limbs too swiftly shaped may prove unstable” in a 1992 lecture at New York University, another way of phrasing the concept alluded to at the start of this post.  At the same time, Justice Ginsberg was a staunch supporter of a woman’s fundamental right to choose.  How did she reconcile these two positions?  Simply put, she believed the right was rooted in another area of the Constitution.  Rather than relying on the penumbras and emanations that produced an ill-defined and largely unworkable right to privacy (if you don’t believe it’s unworkable, ask yourself how the government can conduct mass surveillance if privacy were a tried and true right), Justice Ginsberg preferred the equal protection clause in the 14th Amendment, saying specifically she “believed it would have been better to approach it under the equal protection clause.” 

Other liberal and progressive legal scholars agree.  Yale Law Professor Akhil Kumar, writing for The Wall Street Journal, is a pro-choice liberal who described how the “Supreme Court’s 1973 opinion in Roe v. Wade, written by Justice Harry Blackmun, is similarly ripe for reversal. In the eyes of many constitutional experts across the ideological spectrum, it too lacks solid grounding in the Constitution itself, as Justice Alito demonstrates at length in his leaked Dobbs draft…In Roe, the Court did not even quote the constitutional language it purported to interpret in handing down its ruling—the Due Process Clause of the 14th Amendment.”  Mr. Kumar continued, “Constitutional history also cut hard against Roe. When Americans adopted the 14th Amendment in the 1860s, almost no one thought it barred laws against abortion. Virtually every state back then prohibited abortions. Roe likewise ran counter to state laws still on the books almost everywhere in the 1970s. The opinion clumsily cited various earlier precedents involving ‘privacy’ rights related to contraception and erotic expression, but in a devastating concession, the Roe Court admitted that the presence of a living fetus in abortion scenarios made the matter ‘inherently different’ from all previous privacy cases. And Roe said nothing, amazingly, about the relationship of abortion rights to women’s equality.”  This is, essentially, Justice Alito’s argument:  The right to privacy doesn’t apply when another life (or potential life) is at stake, and hence the case was wrongly decided.  Moreover, Mr. Kumar also seems to agree with Justice Alito that the ramifications for other rights predicated on privacy and equal protection are minimal at best.  He wrote, “Does Justice Alito’s draft, as many are now claiming, inflict collateral damage on other areas of constitutional case law, such as the Warren Court’s precedents on contraception and interracial marriage? It does not. In fact, the Dobbs draft reinforces these iconic opinions by explaining why they were right—namely, because the freedoms recognized in these cases were ‘deeply rooted in the Nation’s history and tradition.’” 

Of course, abortion supporters are not likely to find much solace in this legal reasoning, even from their liberal allies.  They, along with their political opponents on the conservative right, should take this as one of President Barack Obama’s famous “teachable moments,” however.  The courts cannot be relied on when legislation or even a Constitutional Amendment is needed.  Wherever you stand on the issue, the undeniable truth is that the Roe v. Wade decision was almost immediately accompanied by claims it might be overturned by a more conservative court.  The potential “threat” to women’s rights was the subject of Robert Bork’s Supreme Court nomination hearings as early as 1987.  At the time, the late Democrat Senator Ted Kennedy said what could be repeated verbatim by his ideologic brethren today, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is–and is often the only–protector of the individual rights that are the heart of our democracy.”  Pro-choice groups were well aware Judge Bork was a not a believer in the “right to privacy” as used in Roe v. Wade, and strenuously opposed his nomination at the time.  He was questioned on this specifically over five days of hearings, where he insisted that “’nobody knows what that thing (privacy) means.”  This was enough to convince Senator Bob Packwood to oppose the nomination because “Judge Bork…will do everything possible to cut and trim the liberties that the right of privacy protects.”

A similar story has played out with every Supreme Court nomination by a Republican President since, culminating with the spectacle of progressive opponents of Justice Amy Coney Barrett dressing in costumes inspired by The Handmaid’s Tale as recently as 2020.  Judge Barret wa, in fact, called a Handmaid herself despite professional accomplishments most could only dream of.  In other words, abortion advocates were well aware this was coming, or at least were convinced it was a possibility, and yet did nothing to codify abortion rights into law in the fifty years since Roe v. Wade was first decided. During this time, they enjoyed majorities in the House and Senate on many occassions, including a period under President Obama where Democrats had a filibuster proof caucus in the Senate and could easily have passed legislation guaranteeing the right to an abortion.  They chose not to for whatever reason, and now the right they seem to prize above all others is at risk.  Conservatives and abortion opponents should not get to cocky or over confident at this turn of events, however.  Their current  5-4 majority is not likely to be a lasting one, and a future court could just as easily find a right to abortion of the 14th Amendment rather than the right to privacy.  Ultimately, this is yet more evidence that a government of limited, enumerated powers enshrined in the founding documents and subsequent amendments cannot be managed via judicial fiat.  The room for interpretation, whether because of partisan politics or honest disagreements, is simply too vast to provide any stability to fundamental rights because fair-minded people not ardently committed to either position can easily come to different conclusions.

Personally, I could argue both sides of the issue myself.  It is obvious that the Constitution does not specifically address abortion in any way, shape, or form.  Therefore, there can be no blanket Constitutional right to the procedure.  It is equally obvious, however, that the Constitution strictly defines the powers of the government, and grants the government no specific power to interfere in private decisions between a woman and her doctor.  Therefore, abortion should be protected.  This is precisely the kind of impasse that legislation, duly passed by the House and Senate, and then signed into law by the President is designed to address.  It is also another example of the importance of the filibuster in general:  Legislation passed by the Senate with 50 votes can be just as easily overturned in the future by the same slim majority.  Legislation passed with a filibuster-proof 60 votes usually enjoys bipartisan support, or at least a period where one party is incredibly dominant, and therefore much longer lasting.  This is our Constitutional order in action, and it can be relied upon to deliver stable, long-standing outcomes now and in the future.  It is the best (and only means) we have to resolve controversial issues, and there should be no doubt that abortion is as controversial as they come.

Partisans should also take that in mind and tread lightly as they consider their respective options.  CNN’s Harry Enten recently described how a “majority of Americans back abortion rights, but the support maybe smaller than you think.”  He cited an AP-NORC poll taken in 2021 that found “23% thought abortion should always be legal, 33% said it should mostly be legal, 30% said mostly illegal and 13% believed it should always be illegal.”  As he put it, “What these findings tell is that few Americans want abortion to always be legal and even fewer want it to be always illegal. Instead, the abortion debate comes down to coalitions.”  Putting this another way:  The American consensus on abortion is not at the extremes:  A majority of Americans support abortion early in a pregnancy, but support plummets when you push the limits either to an outright ban or to late-term abortion.  Of course, this should not be surprising, either.  We live in a political world increasingly dictated by polar extremes, but the action, as ever, remains in the middle.  We should all do well to remember that, and that the Constitution was designed with a broad consensus in mind whatever the Courts may say at any given moment in time.

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