We are a couple weeks into the post-Dobbs world, and chaos has yet to envelop the land. A new Dark Age has not descended across America. The U.S. has not been transformed into The Handmaid’s Tale or similarly imagined progressive dystopias. The Mutaween, or religious police force, has not taken over the streets.
In short, America appears to have survived the horrific blow of the justices doing what they have oft done before and overruling a terrible precedent, this time Roe v. Wade. Among the others are Dred Scott v. Sandford, Korematsu v. United States, Plessy v. Ferguson, Minersville School District v. Gobitis, and Wickard v. Filburn. Roe’s inhumanity long put it alongside Dred Scott and Korematsu, making it especially ripe for reversal.
What has not survived is the pretense that the political Left has any vision of the Constitution and judiciary other than that of them as political weapons. In the 1960s and 1970s, political activists, then known as liberals, championed the judiciary, topped by the Supreme Court, as a vibrant force empowered to override old decisions and make new laws. What was Roe but the embodiment of this principle? Somehow Americans, including those who had added the 14th Amendment to the Constitution, had spent the previous century ignorant of a brand-new constitutional right established by that very provision. So, in 1973, seven justices appointed themselves delegates to a judicial constitutional convention and added an abortion amendment to the Constitution by fiat.
In their wailing and gnashing of teeth, leftie lawyers have tossed in just about every possible “kitchen sink” argument against Dobbs, and most aren’t pretty.
Since then, left-wing dogma has insisted that precedent is sacred, indeed, that Roe is a hallowed creation, delivered of immaculate jurisprudence, beyond human reconsideration. It is the sort of super-duper-uber precedent seen only once a generation, if that. In contrast, the moment the high court issued opinions in Citizens United v. Federal Election Commission (campaign contributions) and District of Columbia v. Heller (gun ownership), progressive interpreters of America’s fundamental law urged that these rulings be overturned. Although that is not likely with the current court, a future panel ruled by the Left likely would oblige.
In their wailing and gnashing of teeth, leftie lawyers have tossed in just about every possible “kitchen sink” argument against Dobbs, and most aren’t pretty. For instance, abortion backers argue that the public supports Roe. Yes, in theory, but many people don’t know what it says. The majority actually favors a much more restrictive regime than that created by Roe, one more like most European governments impose.
Anyway, judges are to uphold the law and Constitution even when the public is on the other side — like the First and Fourth Amendments, once held to be sacred by progressives. But that was then; this is now. Today judges apparently are supposed to be like any other politician and do what the public wants, even if that means destroying the Constitution.
Another claim is that allowing restrictions on abortion will have all sorts of terrible effects, such as impairing military effectiveness. Who knew? No wonder the U.S. lost in Vietnam, deciding to leave before Roe came down! If only President Richard Nixon had taken America back into the conflict after Roe was issued, Vietnam today would be free.
Another awful leftist argument is that limiting abortion will hurt the economy. To most people, killing future consumers and workers would appear to be a dubious impetus for economic growth. But apparently the progressive prescience of Justice Harry Blackmun, who wrote the Roe majority opinion, was greater than any of us imagined. He and his colleagues set the stage for America’s economic transformation in recent decades. If only he had detailed the many economic benefits of aborting the young in his Roe opinion, surely the pro-life movement would have conceded defeat and never emerged.
Perhaps worst of all, it is said that Roe is hurting America internationally. It turns out that the global environment only seemed hostile before Dobbs. The U.S. was headed toward a glorious victory over China and Russia. And then the Supremes decided Dobbs and sacrificed America’s great advantages. Apparently, the justices aren’t just misogynistic, antediluvian, neo-Taliban Luddites. They’re traitors, too!
Many bizarre arguments have been advanced defending Roe. This is probably the silliest.
The University of Chicago’s Paul Poast, in an essay in World Policy Review, is distressed that foreign leaders as well as Democratic politicians have criticized the Supreme Court’s decision. Poast’s essay in many ways epitomizes the Left’s arguments against Dobbs and the current court’s jurisprudence. He writes:
French President Emmanuel Macron expressed “solidarity with the women whose liberties are being undermined by the Supreme Court of the United States,” while the French Foreign Ministry issued a statement that, while it didn’t call out the U.S. directly, pointed to the ways in which the right to abortion was being “violated and threatened in many regions of the world.” Canadian Prime Minister Justin Trudeau called the court’s decision “horrific.” German Chancellor Olaf Scholz spoke of women’s rights being “under threat,” and British Prime Minister Boris Johnson called the ruling “a step backwards.”
How very PC, which is what one would expect from European leaders! Nor are these heads of government alone in their sanctimonious criticism of America. A few weeks ago, the European Parliament passed a resolution demanding that the high court sustain Roe. And a variety of foreign commentators, pundits, columnists, and self-anointed opinion leaders added their half-cent’s worth. Even editors of the venerable Financial Times appear to be preparing for an Editors Gone Wild video, calling Dobbs “cruel” and a “disaster.” Foreshadowing Poast’s lament, they insist that “This is a dreadful day for women, but also for all those who believed in an enlightened, liberal America.”
How utterly, completely, pompously, ludicrously hypocritical.
All of their countries, other than Canada, impose tougher rules than America on abortion. Says the Charlotte Lozier Institute:
No European country allows elective abortion through all nine months of pregnancy as is permitted in the United States, where Supreme Court precedent only allows states to regulate it after viability. In comparison, 47 out of 50 European countries analyzed in this report either do not allow elective abortion (8) or limit elective abortion to 15 weeks or earlier (39), whereas 0 out of 50 states in the U.S. have a currently enforceable law limiting elective abortion to 15 weeks. The Mississippi late-term abortion restriction at 15 weeks is not extreme by any measure when compared with European law.
If Messrs. Macron, Scholz, and Johnson are so horrified by a rollback in “abortion rights” in America, why do they not free their own people from even more draconian controls? Macron is his nation’s president and only recently lost his parliamentary majority. He had five years to remedy this grave injustice. Scholz heads a tripartite coalition with two parties that are progressive on social issues. Surely it would be no problem for him to take a moment away from the Ukrainian imbroglio to save Germans from this terrible fate.
Finally, Johnson heads — or, more accurately at this point, headed — a robust conservative party majority. This is not your father’s or grandfather’s conservative party, so liberalizing abortion rules should have posed no problem, especially with the likelihood that the Labor and Liberal-Democratic parties would back such legislation. Given his professed concern, the issue should have topped his agenda after winning the last general election.
What are they waiting for? It’s time for them to put up or shut up.
Still, Poast doesn’t want retrograde Americans to believe they can ignore the opinions of their betters just because the U.S. is a superpower and subsidizes Europeans’ defense, allowing them to cheap ride on American taxpayers. He insists that “there are at least three ways in which the Dobbs decision undermines U.S. standing in the world.” And we certainly can’t have that when commies and former commies are on the march in Asia and Europe! Sam Alito, call your office.
First, Poast declares, the decision “is embarrassing.” Seriously?
There is a lot about which the U.S. should be embarrassed. The Iraq invasion and hundreds of thousands of Iraqis killed in the subsequent sectarian strife. The fact that Americans are still in Iraq. Supporting the Saudi and Emirati royals as they bombed and starved Yemen. Allowing the Europeans, South Koreans, and Japanese to cheap ride on America for decades, even after they recovered from war. Getting involved in a host of other nations’ bitter civil wars: Afghanistan, the Balkans, Lebanon, Libya, and Syria, as well as in Africa, Latin America, and especially Vietnam. Intervening in World War I, a stupid imperial slugfest that did not concern America militarily. Botching the long-overdue withdrawal from Afghanistan. And there’s a lot more, including Madeleine Albright’s malign role in making U.S. foreign policy in addition to more mundane issues, such as pouring good money after bad into the dirigiste economies of multiple collectivist Third World dictatorships.
That’s a lot to be embarrassed about. The Dobbs opinion, not so much.
But ah, Poast explains, “As a result of it, the U.S. joins an inauspicious list of countries that have restricted abortion access in the past three decades — a list that is full of nondemocracies, notably Russia and Iran.” He shouldn’t forget the 47 European states with tougher abortion rules than America. Surely they should be embarrassed too.
Poast went on to complain that “When a clear majority of the U.S. public, including Republican-appointed Chief Justice John Roberts, thinks that abortions in some form should be protected at the national level, it seems contrary to a democratic system’s operating principles that the court would undermine the ‘will of the people.’” Uh, what kind of civic education did he receive in school? The Bill of Rights was created to protect the rights of minorities who find themselves at odds with majority practice. So, too, the 14th Amendment, which was approved to end racial discrimination. Does he want to toss that principle overboard? So, if a majority turns against free speech, limits on government searches, protections against self-incrimination, requirements of a jury trial, and racial equality, too bad. The majority rules. Stop whining. We obviously can’t have judges undermining the “will of the people”?
Poast also whines about “the seemingly capricious nature of the ruling.” He says:
It is one thing to philosophically hold that, within reason, policies should be set at the level of individual states. But when the court rules in the same week that individual states can set any restrictions on abortions, but cannot impose limited restrictions on gun ownership, it feeds a perception, both domestically and internationally, that the U.S. democratic system of governance is dysfunctional.
The difference between the two issues is their legal basis. One is rooted in the explicit language of the Constitution (gun ownership, the subject of the Second Amendment) while the other is based on vaporous, rarely discerned emanations and penumbras of the Constitution, which means not much at all (abortion, imagined to be a basic right a century after passage of the amendment upon which it supposedly was loosely based). One can argue about the proper interpretation of both provisions, but their foundations are entirely different. Even some progressives have believed that Roe’s legal reasoning was “nonsense upon stilts,” as Jeremy Bentham once called natural rights. Yale’s John Hart Ely wrote of the abortion opinion, saying, “It 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.” He called the decision a “dangerous precedent.”
Second, Poast says:
[The] ruling is destabilizing and points to further instability in U.S. policymaking.… the Supreme Court has overturned a policy that had stood for 50 years, and there are concerns that other domestic human rights policies that seemed to have been ‘settled law,’ such as protections for contraception and same-sex marriage, could be revised as well.
The basic question, of course, is whether or not error should be preserved in the name of stability. In 1896, Plessy v. Ferguson established the doctrine of “separate but equal.” The ruling was authoritative, imposed by a seven-to-one majority. When Brown v. Board of Education was before the high court in 1954, Plessy had been law for almost six decades. Overturning school segregation created not just “instability in policymaking” but violence as well. Nevertheless, it remained the correct decision, long overdue in a good and just society. If one grants at least some humanity to the many babies aborted since 1973, an error in Roe could not be seen as anything but a decision having enormous negative consequences.
Third, writes Poast:
[The] ruling is foreboding, raising the question of whether this is just the ‘tip of the iceberg.’ A decision released yesterday curbing the Environmental Protection Agency’s ability to restrict power-plant emissions without congressional approval suggests it is, and that the goal is to end as much regulation as possible at the federal level — with the exception, of course, of gun control — thereby undermining the federal administrative state altogether.
In addition, he worries that, if the Court “undercut the federal government’s ability to set regulations in a variety of issue areas,” it would be harder for Washington to “broker agreements for” such issues as climate change. (READ MORE from Doug Bandow: Left Has Mental Breakdown Over Abortion)
If Dobbs is correctly decided, it is no argument against the decision that it foreshadows another case in another area. In any case, West Virginia v. Environmental Protection Agency raised an issue that long has concerned many attorneys. The lawsuit, involving the EPA’s categorization as a pollutant a substance Congress never labeled as such, challenged not federal authority but congressional delegation of that authority. Until this case, the high court might have upheld bureaucrats approving rules mandating mass production of seasteads, restoring the Hanging Gardens of Babylon, and confiscating every gasoline-powered automobile in America as proper based on a one-sentence statute ordering the relevant agencies to “do good to mankind.”
In today’s administrative state, legislators often avoid the hard work of making laws and instead approve general wishes, leaving the details up to a bureaucracy largely hidden from and unaccountable to the public. Legislators then can disclaim responsibility for outcomes contrary to what the public wants. Indeed, the same people who voted for such laws often win constituents’ favor by pushing regulators to make convenient exceptions to the rules.
Some delegation, at times even significant delegation, is necessary in government, but broadly delegating legislative powers is highly undemocratic, something that should concern Poast, given his criticism of the courts for the same reason. Allowing agency personnel to create law is much more problematic than having judges interpret the law as it is rather than as people wish it to be. In an era of expanding federal controls and diminishing congressional accountability, the high court had good reason to reconsider the proper constitutional balance.
Lastly, Poast rests his complaint on America’s status as the globe’s grand liberal imperial power. He writes:
[With] hegemony comes great responsibility. That means steadiness when it comes to policy, and particularly adherence to well-established legal precedent. That is the foundation of the rule of law, a key pillar of the democratic values that the U.S. espouses at home and champions abroad. Following last week, it will be ever more difficult for it to do either.
America was created as a republic, not an empire. The national government’s principal responsibility is to create a system of ordered liberty for its own people, not range around the world imposing its will on friend and foe alike. Within this system the judiciary’s role is to uphold the rule of law, protect fundamental liberties, and resolve often contentious disputes — not impose its preferred social policies and seek foreign approval.
In Dobbs, the Supreme Court did not criminalize abortion. The justices did not block states or the federal government from legalizing the procedure. Rather, the high court returned power to decide the issue to the proper branch of government, the legislative. In doing so, the justices acknowledged that the Supreme Court had made a serious mistake with Roe in 1973. If only leading national political figures would make a similar admission about a succession of disastrous foreign policy decisions. That would improve Uncle Sam’s international reputation.
Doug Bandow is a former Special Assistant to President Ronald Reagan and is author of The Politics of Plunder: Misgovernment in Washington. A graduate of Stanford Law School, he is a member of the California and Washington, D.C., bars.