Just short of 49 years ago, Justice Harry A. Blackmun reached deep into the Constitution and rummaged around, trying to pull out something on which to hang his belief that the Supreme Court should step outside its prescribed role and strike down the country’s anti-abortion laws.
He came away empty-handed.
But that didn’t stop him and six other justices from torturing a “right to privacy” out of the due process clause of the 14th Amendment, and massaging it into a federal right for a woman to legally end her pregnancy.
And just like that, on Jan. 22, 1973, those seven justices vacated state abortion laws all across the country, lighting the fuse for a firestorm of protest and disagreement that has divided us for nearly a half-century,
Had the justices simply declared, accurately, that the Constitution is silent on the issue of abortion, and deemed it a legislative decision rather than a judicial one, the question would have been long settled in the country’s statehouses. And we would not be in the position today of facing the emotional explosion that is sure to come when the high court finally restores the abortion decision to its rightful place.
Yet here we are, having heard oral arguments on the constitutionality of a Mississippi law that bans abortions for women after 15 weeks of pregnancy.
Fifteen weeks is about two months earlier than allowed by the Supreme Court’s two signature abortion decisions: 1973’s Roe v. Wade and 1992’s clarifying Planned Parenthood v. Casey, which pegged legislation to viability – a baby’s ability to survive outside the womb. It seems certain to put the court on a collision course with the constitutional viability of those two cataclysmic rulings.
That’s because, when you consider the logic of the rulings through anything other than the eyes of an abortion rights zealot, your inescapable conclusion is that they are supported only by thin air.
As Mississippi Solicitor General Scott Stewart said in his opening argument, “They have no basis in the Constitution. They have no home in our history or traditions. They’ve damaged the democratic process. They’ve poisoned the law. They’ve choked off compromise. For 50 years, they’ve kept this court at the center of a political battle that it can never resolve.”
The court can never resolve it because the decisions were based on emotion rather than grounded in legal reasoning.
One of the most scathing indictments of the decision – at least partially because it was written by a proponent of abortion rights – came from the eminent Yale law professor John Hart Ely almost immediately after the Roe ruling was rendered:
“What is frightening about Roe,” he wrote, “is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.”
”It is not constitutional law,” Ely concluded, ”and gives almost no sense of an obligation to try to be.”
Even the late Ruth Bader Ginsburg found the reasoning hard to defend, once writing that “Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
And Justice Byron White, whom Ginsburg succeeded on the court, dismissed the Roe decision as follows in his dissent:
“I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.”
The careful reader will, I hope, note two things about the preceding:
First, that I’ve tried to keep politics out of it, because this decision should not be political.
To be sure, those on the pro-choice side will – and in the case of Justice Sonia Sotomayor, already has – peg the possibility of the case overturning Roe to the presence of three justices nominated by former President Donald Trump (Neal Gorsuch, Brett Kavanaugh and Amy Coney Barrett), and the Republican majority in the Senate who confirmed them.
But this is about the law, not politics, and if the presence of those three changes the Supreme Court’s view of Roe, it is only because they will be adhering to the Constitution rather than the judicial activism that marked the original decision.
Note that three of the four people quoted above who were critical of the decision were a pro-choice Yale law professor, the long-time feminist icon on the court, and a justice nominated by John F. Kennedy who most generously could be described as moderate if not liberal.
Contrast that with Sotomayor, who during the oral arguments spoke of the “stench” created by supposed political machinations on the court. And only a couple of months ago in a virtual appearance sponsored by the American Bar Association in Texas, Sotomayor put her political bias on full display by urging law students to fight against a Texas anti-abortion law.
Second, I haven’t offered an opinion on whether legalized abortion is right or wrong.
Of course, I have one. But every time the subject comes up, I think of a friend who has told me that, as a man, I can’t understand the woman’s point of view and I therefore have no standing to opine on a subject on which I have no personal stake.
For the purposes of this discussion, I’ll go along with that, because she’s right: I’ve never been able to understand the passion and anger that so many women bring to the fight for their right to, putting it as sensitively as possible, prevent their babies from being born.
The point here is that this argument isn’t about whether abortion is right or wrong.
It is about jurisdiction: Does the Constitution, interpreted by nine unelected people who are answerable to no one, guarantee a woman’s right to end a pregnancy? Or should the state (or federal) legislatures, elected by and answerable to the voters, step in and balance the rights of unborn babies against the rights of the women carrying them?
If the Roe and Casey decisions are overturned, as it appears likely they might be when the decision is announced in a few months, that does not mean abortion will be illegal. It means that the decision will return to the people, through their elected representatives.
In an editorial decrying that possibility, The New York Times noted that according to a 2019 poll, more than three quarters of Americans support the right to abortion in some form.
If that’s truly the case, they have nothing to worry about: Legislators will protect abortion rights, or voters will replace them with legislators who will.
We will find out soon enough.
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