Supreme Court Revisits Roe v. Wade

Is this about abortion, or something else?

I thought about posting on this subject a couple of days ago when the leak (of the draft majority opinion) was reported by Politico, then thought the better of it. I don’t go around looking for trouble, but then a fellow I follow, John Halpin, wrote a post on The Liberal Patriot substack entitled “America Needs a ‘Leave People Alone’ Movement,” and I couldn’t resist. I’m going to try to share my thoughts on this case without debating the abortion issue itself, but I suppose I won’t be entirely successful.

I will just go through the The Liberal Patriot’s post step-by-step, and provide my own opinion on the subjects.

• The Liberal Patriot says, “Justice Samuel Alito has apparently decided for a majority of the Supreme Court that 50 years of settled law on legal abortion should now be returned to the states for ‘democratic deliberation’.” First of all I find it highly unlikely that Alito “decided for” anyone; I certainly hope not. If it is true we are in some serious trouble, this is the Supreme Court after all. Secondly, Roe v. Wade is anything but “settled law.” In actual fact there is no law guaranteeing a “right” to abortion, which is why you now see Sen. Bernie Sanders tweeting this drivel, “Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW. And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.” Again, my emphasis added in italics.
  
  Further to this point, an all-male Supreme Court in 1973 created a decision, which has become de facto law, with absolutely no foundation in the Constitution, none. In oral arguments the current Supreme Court heard, “Jackson Women’s Health Organization, the abortion clinic, contended the Act is “flatly unconstitutional under decades of precedent.” Precedent, that was the sum and substance of their argument. A majority of the Supreme Court, as represented by Alito, has simply come to the conclusion that Roe v Wade is bad precedent.

• The Liberal Patriot says, “Self-determination and freedom to live how you want without having someone else’s moral views foisted on you by legislatures and the courts? That’s for the old liberal America. This is the post-liberal future.” In point of fact the Roe v. Wade decision, the creation of de facto law, was absolutely “foisted on” the People, absent any democratic process whatsoever, by not just any court, but the Supreme Court. The intent of legislatures is that they BE democratic; the extent to which they are held accountable by the People is a separate issue entirely.

• The Liberal Patriot says, “America used to be a place of live and let live but it is no longer the bastion of freedom that has inspired people across the world for generations. Culture warriors are now poised to use state legislatures and the courts to force their views on others: e.g., what kids should or should not learn in school; how people should or should not think about gender, race, or sexuality; and what individuals should or should not do with their own bodies, minds, loved ones, and family decisions.” I hardly know where to start; at the beginning is as good a place as any. How terminating an otherwise viable pregnancy can be to “live and let live” defies credulity. This implies that there is no “victim” of abortion; even if we ignore for the moment the unborn, the first victim is the pregnant woman! The mothering instinct is perhaps the strongest of all human instincts, save perhaps the instinct of self-preservation, although innumerable women throughout history and pre-history have given their lives to preserve the life of their offspring. Any woman who can terminate an otherwise viable pregnancy and not suffer serious remorse and emotional injury is a woman I don't want to know. And “to use state legislatures…to force their views on others;” that my friends is pure democracy, mob rule in action, and from which the courts and the Constitution are intended to protect us!

Okay, I’m going to stop there. Here is why I think this is a good decision, if the decision Alito has articulated actually comes to pass:

1. It returns us, in very small part, to the Constitution; the Supreme Court in 1973 had no authority to “foist” upon us the de facto law which Roe v. Wade has become.

2. It returns power to the states, again, in very small part; the Federal government has been allowed, even enabled, by both the states and the People in usurping power far in excess of its constitutionally enumerated powers.

3. If we are going to have culture wars, I’d much rather they be in the states than at the nation-state level. You will never ever get as diverse and large a population as is the United States to agree on what is at its heart a values and morality issue.

4. And finally, if a state has a culture and politics more in line with my values I can move there, and still reside in the United States which I love. Conversely I can leave a state that behaves not in alignment with my values, as Geri and I have done. This process is, has been, and always will be ongoing; people vote with their feet, which is as it should be. The evidence is in the below graphic regarding net migrations within the United States:

The top 10 are seeing net positive migration, the bottom 11 (including D.C.) are seeing net negative migration; people are indeed voting with their feet, which is one of the strongest forces in moving states to enact laws more attractive to the People in general. The system works as designed, if we allow it.