It’s not easy to predict what the U.S. Supreme Court will decide in any particular case. Scholars study individual justices long and hard and are still surprised at their decisions. The recent spate of opining about the likely outcome of the Mississippi abortion case, Dobbs v. Jackson Women’s Health Organization, tended toward unwarranted certainty that, after almost 50 years, the Court was ready to overturn Roe v. Wade. We’ll have to wait until July to know for sure.
Whatever the Court does, in my next three posts, I’ll offer my own ideas about what should happen and why.
First, I hope the Court overturns Roe, Doe v. Bolton, etc. That, perhaps paradoxically, is because I favor limited abortion rights. On balance, I think that society is better off with fewer unwanted babies than more. Multiple surveys of women who’ve had abortions show their reasons running to their inability/unreadiness to care for a child. Lack of money, lack of maturity, lack of a stable relationship with the father, etc. are, overwhelmingly, the reasons given for terminating a pregnancy. All of those bode ill for the child’s prospects in life.
Because I favor limited abortion rights doesn’t mean I’m not open to anti-abortion arguments. Yes, the fetus is a human life and the taking of a human life should not be done lightly. And nowhere else in the law do we allow the taking of human life solely on the private say-so of a single individual. Homicide is overseen by criminal law. Warfare confers the imprimatur of the state that, supposedly at least, voters can reverse. By contrast, abortion is one person’s private decision to end a life with which no one can interfere. That in turn tends to degrade the value of human life generally. All that I understand and am sensitive to.
The issue of abortion rights has bedeviled this country since Roe was decided in 1973. It is one of the most contentious of all social issues and, by now, all the arguments pro and con have been made ad nauseum. Nothing new will be said that miraculously changes the minds of those on one side or the other. We are at loggerheads. To reduce the level of discontent, it is now time to place the issue of abortion rights where it should have been all along – in state legislatures.
I’m convinced that one of the reasons why the issue has had such staying power is that it was foisted on us by seven unelected justices far away. Those opposed to abortion rightly feel that what they regard as an unconscionable taking of a defenseless human life has been made legal solely by judicial decree. Roe wasn’t some minor tweak to existing law; it was as great a change in the law and, as a result, human behavior as has ever occurred in the history of American jurisprudence.
Plus, from a constitutional standpoint, it was badly done. Not only did Roe take the right of privacy that’s nowhere in the Constitution as written or amended, it expanded it beyond recognition to produce a brand-new right that’s also nowhere to be found. Add to that the fact that, if dubious legal reasoning weren’t bad enough, the majority’s logic was dicey as well. Amazingly, Justice Blackmun argued that, since humans have in the past often regarded unborn life as less worthy of protection than other human life, then, implicitly, it’s acceptable to do so now. The rather obvious problem being that the same argument can be used to justify, say, slavery, child labor, monarchy, torture, etc. After all, it was commonly done in the past, why not now? It’s an argument for stifling human moral progress. Transparently it’s also the type of argument that’s used when better ones don’t exist.
More importantly, the Roe majority is astonishingly vague on just how a right of privacy becomes a right to abort a fetus. It’s sole direct assertion on the matter looks more like a preconceived notion than constitutional analysis.
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
Thanks for telling us.
Finally, among all our constitutional rights, not one is unlimited. The right to speak, to assemble, to petition the government, to practice one’s religion, to possess a firearm, etc. are all circumscribed by law and the circumstances in which we seek to exercise them. All, that is, except abortion. The one right that’s found nowhere in the Constitution and that the Framers would unquestionably have rejected out of hand had the thought crossed their minds remains essentially untouched. That’s true despite the fact that the majority in Roe explicitly did limit the right, and considered and rejected contrary arguments.
[A]ppellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree.
In short, in addition to reasons of morality, those who oppose abortion rights do so because of the manner in which those rights came into being and the extent to which they’ve expanded. Put simply, We the People had no say in the matter. And that has allowed, more than is commonly acknowledged, to keep simmering the issue of abortion in this country. Here it’s worth noting that, in the countries of the European Union, the issue is far less contentious than in the U.S. and in each of those countries it’s been decided by elected legislatures.
It’s time for the Court to get out of the business of abortion and let our elected representatives decide the issue. With any luck, that’s where we’re headed come next July.
I’ll get into that more next time.