The Answer to the Abortion Debate Has Existed in the Constitution All Along

We should begin by stating the obvious:  Roe v. Wade was an errant ruling by the Supreme Court, and one which has rightfully earned “public opposition and academic criticism” because  the “Court ventured too far in the change it ordered and presented an incomplete justification for its action.” 

That’s not my framing of the mistake made in the Roe decision, mind you.  Those are the words of none other than Ruth Bader Ginsburg, uttered in 1985.  And as late as 2005, even she acknowledged that “in 1973, the law was changing.  Women were lobbying around that issue.  The Supreme Court stopped all that by deeming every law – even the most liberal – as unconstitutional.  That seemed to me not the way the courts generally work.”

Anyone who harbors an ounce of honesty must admit that these statements by the famously progressive justice are accurate.  As MSNBC legal analyst Danny Cevallos recently observed:

[W]e have known since the ‘70s that Roe v. Wade stands on a weak foundational basis.  Whether you’re pro-life or pro-choice, Roe v. Wade is really about, do we have an individual, fundamental – do women have a privacy right in the Constitution that overrides state legislatures’ abilities to make laws affecting abortion?  The bottom line is, that even if you are pro-choice, [sic] the right to privacy does not exist, either in the history or the text of the Constitution, which is why Roe v. Wade has always been ripe to be overturned.

MSNBC Host Joe Scarborough, rather than being aghast at such a heretical observation, told Cevallos that his comments are “interesting” because “Mika [Brzezinski] and I were talking about it” after the news of Alabama’s new restrictive abortion legislation broke, he said, and even Scarborough’s constitutional law professor, “who was very progressive,” said, “though I agree with the conclusion of Roe, it’s a terribly written case, and its logic is baffling at times.”

Its logic was certainly baffling to Justice Byron White, who observed in his dissenting opinion in 1973 that the Court had “simply fashion[ed] and announce[d] a new Constitutional right for pregnant women and, with scarcely any reason or authority for its action, invest[ed] that right with sufficient substance to override most existing state abortion statutes.”

There’s a theme here which anyone should be able to notice.  The notion that “[a]bortion is a constitutional right,” as Bernie Sanders tweeted in the wake of Alabama’s new abortion legislation, is legally flimsy at best, and entirely made-up at likeliest, considering that even the staunchest supporters of progressive social positions often find themselves having to admit that no such right was ever enumerated in the Constitution.

So here we are, at the crossroads of a national crisis that probably would never have existed without the unwarranted and unsubstantiated judicial activism of 1973.

Ginsburg alluded to that fact in 2005.  Laws were changing by 1973, as state laws are wont to do as the culture changes.  But these changes were occurring at the state level, as the Constitution intended. 

Presciently, the late Antonin Scalia explained, in his dissenting opinion on Planned Parenthood v. Casey in 1992, precisely how and why Roe has created these current circumstances, where political sentiments on this issue have pulled toward the ideological poles in an all-or-nothing national debate that is ultimately to be settled by nine Supreme Court justices.

Profound disagreement existed among our citizens over the issue – as it does over other issues, such as the death penalty – but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not a closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state by state resolution, but also that those results would be more stable.  Pre-Roe, moreover, political compromise was possible.

Roe’s mandate for abortion on demand destroyed the comprises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level… [t]o portray Roe as the statesmanlike “settlement” of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing short of Orwellian.  Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since.

His point is brilliantly made, and time has only confirmed his wisdom.  New York has now passed abortion legislation that is so open-ended that it would allow a doctor to legally deny medical assistance to a living child, outside of the mother’s womb, if that child survives an abortion attempt.  Alabama has now crafted a law which is the polar opposite of that law, effectively outlawing nearly all abortion.  Since the “division of sentiment” on the issue of abortion in New York is not the same as Alabama, it seems only obvious that “more people would be satisfied” if each respective state were allowed to craft its own laws on the matter.  Applying the Alabama law to New York might be every bit as disagreeable to New Yorkers as applying the New York law to Alabama would be disagreeable to the people of Alabama.

And clearly, Alabama’s law is a direct challenge to the Court’s previous rulings protecting Roe v. Wade on the principle of stare decisis, which demands that, however wrong the conclusion may have been, it is “settled precedent” determined by the Court, as Justice Sotomayor describes it.

That’s a ridiculous foundation for establishing one’s judicial practice, to be sure.  It’s doubly ridiculous when one considers that progressive justices like Sotomayor would like nothing more than to reverse precedent on, say, the Heller decision of 2008. 

But while even the nine justices, like all Americans, may have moral convictions around the abortion debate, we look to them to answer this question for us.  Scalia was correct in observing that Roe has “obscured with its smoke the selection of Justices” to the Supreme Court.  If you doubt that fact, consider that opposition to Brett Kavanaugh’s selection to the Court centered around fears that he would elect to overturn the terrible decision made in Roe.

To invoke Ginsburg, leaving such a weighty moral decision in the hands of nine individuals of the Court to decide for all Americans seems to me “not the way the Courts generally work.”  To invoke Abraham Lincoln:

The candid citizen must confess that if the policy of the Government, upon vital questions affecting the whole people, is to be irrevocably fixed by the decisions of the Supreme Court… the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

A fierce opponent of the Dred Scott v. Sanford decision, Lincoln did not challenge the Supreme Court as a federal institution, but was challenging the principle of stare decisis, evident by the word “irrevocably” in the above quote.  “[W]e believe the Dred Scott decision is erroneous,” he said.  “We know the Court that made it, has often overruled its own decisions, and we shall do what we can to have it over-rule this.”

In short, the Constitution gave us a formula to navigate this issue, and it is best handled state-to-state rather than being “irrevocably fixed” by the Supreme Court.  If the federal government is to allow or forbid abortion, it must be allowed to do so only by Constitutional Amendment.  Insofar as the states comprising these United States cannot agree to do one or the other at the Congressional level, that Amendment is not in the foreseeable future, and therefore, it is still best left to the states to decide.

Two things are certain.  First, the national debate over abortion will continue, whatever the result of the coming Supreme Court decision on any new abortion legislation like Alabama’s.  Secondly, what is best for every citizen of every state is not best decided by the nine judges of the Supreme Court, whoever they may be.  So, even though “we disagree” with the decision in Roe v. Wade, we must “do what we can” to have the Court overrule that terrible mistake that has left more 60 million legally killed unborn babies in its horrifying wake.

William Sullivan blogs at Political Palaver and can be followed on Twitter.

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