Abortion may be the most incendiary and divisive issue facing the U.S. since slavery. Consider how progressives reacted to the leak of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson’s Women’s Health Organization, which would overturn the infamous abortion decision in Roe v. Wade.
The Left believed it was in charge. It had gained control of the commanding heights of American law, culture, business, media, and academia. But it turns out that common folks across the country have a voice too, which triggered a tsunami of caterwauling and wailing by those determined to rule the rest of us. If abortion was a regional issue, we might be suffering a new secessionist wave as “blue” America headed for the exits.
Most bizarre is Yellen’s complaint that ending abortion would cause children to grow up in poverty. Abortion “solves” that problem by killing the child.
A half century has passed since a seven-member majority in a Supreme Court dominated by Republican appointees — before GOP presidents considered philosophy rather than partisanship — overturned every abortion law in the country. Even many legal progressives acknowledged that Roe read like a legislative statute, not a constitutional provision. As Yale Law Professor John Hart Ely put it, the decision “is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
By removing such an important and emotional issue from the political process, through which states were steadily if inconsistently liberalizing their laws, the justices inadvertently jump started the bitter Culture War and shoved conservative Christians toward the Republican Party. Rather than accept unelected jurists as infallible since they were unreviewable, people organized to protest the decision and, more importantly, sustain a five-decade campaign to overturn the ruling.
Originally abortion cut across partisan lines, but Roe hardened ideological divisions as the Right ultimately bested the legal left at the latter’s own game. The 1960s and 1970s were the heyday of those now calling themselves progressives using policy litigation as a form of political campaign. And their victories were many. There was no pretense of defending democracy. Rather, almost all the blockbuster cases thwarted the majority by overturning democratic decisions. That was appropriate when doing so vindicated the Constitution. But in many cases, like Roe, courts acted as mini-constitutional conventions, amending the nation’s governing document to suit their preferences. Hence a frenetic search for constitutional “penumbras” and “emanations” to support radical rewrites of the nation’s basic law.
Adopting this approach for abortion was almost uniquely inappropriate. It is a tough issue, involving life and liberty, and warrants legislative balance, rather than judicial absolutism. However, the Left has turned abortion into something more, the very essence of its philosophy that affects all aspects of human life. Consider the latest progressive claims on behalf of abortion.
For instance, journalist Kim Kelly wrote: “Abortion rights are a labor issue, and this is a moment in which the labor movement needs to make clear that bodily autonomy and reproductive freedom are core issues that unions will fight tooth and nail to preserve. The right to control our bodies is part and parcel of our centuries-old battle to control our labor, and they cannot be separated from one another.”
If you don’t have a right to abort your unborn child, your labor rights are being violated! Who knew that employers had a responsibility to ensure that the state leave the unborn without protection?
Taking Kelly’s argument to its logical end, anything that adversely affects a worker should be treated as a labor issue. By her terms, laws against infanticide hurt workers. After all, Kelly claimed that the U.S. is “a merciless [place] in which to raise a child.” Eliminating a troublesome child would ease the strain. And consider the many government policies which hurt common people: hiking food prices, increasing housing costs, inhibiting business formation, degrading education, subsidizing special interests, undermining communities, and reducing job opportunities. All of these are properly labeled “labor issues.”
More important, Kelly ignored the presence of another life when assuming that the “right to control our bodies” means controlling, i.e., destroying, the separate bodies of the unborn. Justice Alito’s draft did not say that people should be forced to have sex and conceive babies. Rape would remain against the law. The essential question then is: do people have any responsibility for the predictable but undesired consequence of choosing to have sex? Decisions have consequences: abortion is no simple controversy over individual liberty.
Finally, Kelly ignored the many workers who oppose abortion. Contrary to the assumption that an overwhelming majority of Americans view the unborn as human detritus requiring disposal, a recent Gallup poll reported a near equal split between the share of people viewing themselves as pro-life and pro-choice. Those who believe the life of the child to be more important than having an unfettered legal right to end his or her life would not view abortion as a labor right.
Equally dubious is Treasury Secretary Janet Yellen’s recent argument that abortion is good for the economy. In recent Senate testimony she said: “I believe that eliminating the right of women to make decisions about when and whether to have children would have very damaging effects on the economy.”
Moreover, according to the Financial Times: “Yellen said access to the procedure and reproductive healthcare more broadly has helped to increase labor force participation and allowed women to ‘plan and balance their families and careers,’ increasing their lifetime earnings.” Finally, added Yellen: “There is a spillover into labor force participation, and it means that children will grow up in poverty and do worse themselves.”
Her claim perversely suggests that infanticide would be good for economy. Surely “eliminating the right of women to make decisions about when and whether to [keep] children [has] very damaging effects on the economy.” Like abortion, eliminating this costly restriction would also increase labor force participation and career/family balance, improving lifetime earnings. (READ MORE from Doug Bandow: The Abomination of Abortion Provider Day)
As for the overall economy, abortion reduces the number of workers, which in the short-term might increase an individual employee’s pay but in the long-term inhibit economic growth and thus people’s standards of living. Moreover, abortion reduces population size. Today many industrialized societies are concerned about stagnating or shrinking populations. That is not a good reason to restrict abortion, but the contention that abortion increases economic growth is dubious.
However, most bizarre is Yellen’s complaint that ending abortion would cause children to grow up in poverty. Abortion “solves” that problem by killing the child. If given the choice, most people probably would prefer to be born and endure hardship than be aborted.
Finally, Roe’s repeal might reduce abortion less than Kelly and Yellen assume. Alito’s Dobbs opinion would not prohibit any abortions. Rather, it would allow states to do so. (Despite talk of a federal prohibition of abortion, the national government has no authority to legislate on this issue.)
Even then people could travel and have the procedure. Those of limited means might find that to be a serious barrier, but already pro-abortion groups have arisen to assist people seeking abortions. The main impact of overturning Roe might be to introduce a delay in which putative mothers reconsidered their decision to have an abortion. That is, women ultimately would still choose, only some might choose a different outcome. Even that modest restriction enrages the Left.
Assuming Alito’s apparent five-justice majority holds, Roe’s authority will run out in the next few weeks. Then the battle over the issue will return to where it belongs, before state legislatures. And in the broader court of public opinion. Neither side will be satisfied, but advocates will be forced to directly engage across the nation. However dissatisfying that might be to many, it would be better than asking lawyers to decide the issue.
Doug Bandow is a former Special Assistant to President Ronald Reagan and is author ofThe Politics of Plunder: Misgovernment in Washington. A graduate of Stanford Law School, he is a member of the California and Washington, D.C. bars.