Washington has been convulsed by a leak of the most obvious upcoming Supreme Court ruling in years. In response, unbalanced and addled hysterics around the country and across the Atlantic are predicting a dystopian future, even the end of modern society and human life.
For instance, Minnesota Sen. Amy Klobuchar, who once affected a moderate image, charged that those choosing life “are taking Neanderthal views, pushing America backwards.” Truly unhinged was Brit Polly Vernon, from a country where parliamentarians, rather than judges, make laws.
She shrieked: “Is this how one of the most powerful countries in the world starts compelling its women to procreate, regardless of their circumstances, means, concerns or desires?” If she ever calms down — she insisted that she is not “given to emotional outbursts,” suggesting that her permanent state must be somewhere between mania and delirium — someone should assure her that the answer is no.
In Dobbs v. Jackson’s Women’s Health Organization, the augmented conservative majority apparently is ready to overturn the infamous abortion decision in Roe v. Wade. After almost half a century, one of the worst high court rulings is about to be reversed.
The final indignity for legal lefties is recognition that legal conservatives are, well, celebrating what appears to be an imminent victory.
There have been some doozies over the years: Dred Scott v. Sandford, Plessy v. Ferguson, Wickard v. Filburn, Minersville School District v. Gobitis, and Korematsu v. United States come to mind. Roe belongs in that awful pantheon. Indeed, its denial of humanity to the most vulnerable mirrors the infamous Dred Scott decision, which held Americans of African descent were not citizens.
Nevertheless, Erwin Chemerinsky, Dean of Berkeley Law School, complained: “From Justice Alito’s opinion it is clear that five justices are about to overrule Roe because they disagree with it.” Yet that is the point. The majority apparently believes that the opinion is wrongly decided, grievously in error, and producing terrible consequences. Like Dred Scott.
However, President Joe Biden inadvertently said something sensible. After insisting that the Supreme Court uphold Roe, he added: “If the court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November.” That was how the pro-abortion movement always should have proceeded.
In 1973 Roe was controversial, even among what were then called liberals. (That was before they were ashamed of that designation and adopted “progressive.”) They liked judicial legislators, who used the slightest legal ambiguity as an excuse to enact their preferred policies. Still, many legal liberals believed that the Constitution at least remained relevant to constitutional law. And for them Roe went two or three steps too far.
I took constitutional law about four years after the case was decided. My professor was, Paul Brest, who went on to become dean of Stanford Law School and later president of the William and Flora Hewlett Foundation. A principled liberal, he told us that though he liked a rule on substance, he could not justify Roe’s constitutional law. That was before the decision had become a sacred totem of the left, an uber, super, duper precedent that could never be disturbed, the essential foundation of a good, just, and moral society, and the pinnacle of wokedom.
Brest was not alone in his misgivings. John Hart Ely of Yale Law School — who later ended up as another Stanford Law School dean — wrote a highly influential article entitled “The Wages of Crying Wolf.” Ely related that “Were I a legislator I would vote for a statute very much like the one the Court ends up drafting.”
Nevertheless, his judgment was devastating. The decision, he wrote, “lacks even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine.” Indeed, the problem was not so much bad reasoning as no reasoning. Argued Ely: “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.” Unsurprisingly, then, he viewed the decision was a “dangerous precedent.”
Indeed, Justice Harry Blackmun’s opinion made clear that it wasn’t much about the Constitution. He appeared to see himself more as an Olympian philosopher than American judge. For instance, he discussed how the Greeks, Persians, and Romans dealt with abortion. What U.S. law said appeared to be of much less interest.
He began his opinion:
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion. In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.
Uh, yeah. That’s what I think about when I ask what the Constitution means. How do we assess “the raw edges of human existence”?
Alito’s draft Dobbs opinion gently describes Roe as “remarkably loose in its treatment of the constitutional text.” The latter decision relied on earlier cases which pointed not so much to the Constitution, but rather to supposed penumbras, emanations, ejections, eruptions, ebullitions, expectorations, explosions, oscillations, exhalations, effusions, discharges, emissions, and explanations from the document. Before Roe, who imagined that the Founders thought about abortion, preparing future generations how to deal with the procedure in each pregnancy trimester?
Perhaps most striking about Blackmun’s opinion was its assumption that abortion concerned only one person. There was no serious consideration of the baby. The majority effectively treated this independent person in development like a tumor, something that existed only to be removed and destroyed.
So do Roe’s defenders today. Critics of reversal also refuse to acknowledge the existence and value of another life. For instance, the president repeated the standard mantra that he planned to defend “a woman’s right to choose,” without detailing to choose what against whom. The Washington Post’s Ruth Marcus complained that the majority intended to return the decision to continue a pregnancy “to a majority free to impose its moral choices on” the putative mother. Chemerinsky wrote about women facing “the cruel choice between an unsafe abortion or an unwanted child.”
Yet doesn’t “the unwanted child” have an important stake in the decision? Shouldn’t someone advocate on behalf of the most helpless and least powerful participant in the process, the baby to be killed? Ely noted this anomaly, writing: “there is more than simple societal revulsion to support legislation restricting abortion: Abortion ends (or if it makes a difference, prevents) the life of a human being other than the one making the choice.”
The draft Dobbs opinion emphasized this point, distinguishing abortion from “matters such as intimate sexual relations, contraception, and marriage.” Stated Alito: “abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”
Of course, this fact does not change the reality that pregnancy has a unique and burdensome impact on women. And no one who values liberty should want the government to intervene in intimate personal decisions about having a child. But once a life has come into existence, the baby and his or her interest cannot, or at least should not, be casually cast aside. For the same reason the state sometimes reluctantly intervenes in family life when children are abused. Abortion is complicated, but that is an argument against arbitrary judicial lawmaking and for vigorous legislative lawmaking. (READ MORE from Doug Bandow: Talking Honestly About Abortion)
Ironically, the vigorous national debate short-circuited by Roe was liberalizing abortion laws. For instance, before Roe, California Governor Ronald Reagan signed legislation substantially relaxing abortion restrictions, a move he later regretted. Abortion politics was complicated, dividing both parties. Scores of House Democrats were pro-life, while several Democratic presidential contenders, including Bill Clinton, Al Gore, and Richard Gephardt, were moderates until their presidential ambitions conquered their principles. There were cross-party political alliances absent today.
In contrast, Roe created what the late Ruth Bader Ginsburg called “prolonged divisiveness.” The decision played a critical role in igniting the “culture war.” By grabbing control of the judiciary’s commanding heights, lefty lawyers disenfranchised the American people. Anyone who believed in anything except abortion-on-demand was effectively locked out of the policy process. The abortion lobby, which got most everything that it desired without having to compromise or even convince anyone but the seven Supreme Court justices in the Roe majority, celebrated. However, the great unwashed were not willing to stand by and do as they were told.
Roe’s judicial advocates continued to believe that the fact they wore robes both entitled and enabled them to shut down the public debate. In 1992 Reagan appointee Anthony Kennedy mimicked the infamous “switch to save Roe in Planned Parenthood v. Casey. A swing block of three justices lectured dissatisfied members of the public, insisting that their “interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” Translation: critics should just shut up.
Casey was about as successful as Dred Scott — which banned federal interference with slavery in the new territories. Historian David Potter explained that “Some of the justices felt that sectional conflict had fed for a decade upon the uncertainty about the constitutional question, and that it was their judicial responsibility to settle the question.” Instead, the decision undermined the Court’s reputation and intensified attacks on what was called the “Slave Power” and “Slaveocracy.” The result was even stronger political resistance and ultimately the victory of the Republican Party in 1860. The essential problem of both Dred Scott and Casey, of course, is that neither decision was “rooted in the Constitution.”
Ironically, despite all the Sturm und Drang, Roe’s reversal would have only limited practical effect. Thirteen states have laws that would trigger abortion restrictions. Another dozen states might pass new legislation limiting abortion. However, such measures likely would be more limited than predicted. So long as Roe, as modified by Casey, remained in force, state legislators could play to their most extreme followers with little political consequence. After Roe, the stakes would be higher and the political calculus would be different.
Moreover, the remaining half of the states would leave abortion widely legal. Abortifacients also would remain available. Anyone willing to endure some inconvenience likely could get an abortion. Indeed, pro-abortion groups already have created what journalist Jessica Bruder called “a sprawling grassroots infrastructure” of funding and support organizations serving people in areas currently with few or no operating abortion clinics.
The outcome would be messy. However, legislators remain better able than judges to sort out the complicated interplay between commitments to life and liberty embodied by the abortion controversy.
Striking is the ideological shift on the Left. Then liberals affirmed the importance of the judiciary standing up for the Constitution, even though they meant the Constitution as imagined rather than as written. Explained Alito: “The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision,” adding that “a right to an abortion is not deeply rooted in the Nation’s history and traditions.” Instead, “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”
Alas, this history didn’t slow down the legal left. Rather, Roe was perhaps the prime example of lefty jurisprudence. Jurists acted as members of a continuing constitutional convention, making new laws which they believed to be necessary for a good and liberal society, without the slightest concern about what anyone else desired. They were quite sincere, of course, but as Alito noted: “we must guard against the natural human tendency to confuse what the Amendment protects with our own ardent views about the liberty that Americans should enjoy.”
The Left realized that simply concocting opinions out of thin air might result in negative political consequences from the American people, who continued to believe that the courts were supposed to interpret existing law, not make up new law. So lefty legal paladins always looked for one or another constitutional provisions upon which to hang their ruling. Hence the “penumbras” upon which Roeultimately rested.
Today, however, Roe’s defenders have abandoned the Constitution and manned the ramparts for democracy. They are angry, outraged even, that the ruling would overturn laws supposedly supported by the American people. Polls have replaced the Constitution as holy writ. For instance, writer Molly Jong-Fast insisted that “Those who support Roe’s protections must show lawmakers and justices that they are about to do something very unpopular.” Since that seems unlikely to change the result, some abortion absolutists revived talk of packing the court. Otherwise, in their view, democracy would fail. Indeed, the Dobbs opinion leak, a shocking violation of court ethics, was viewed as an “attempt to see if the public response might cause the Court to reconsider.”
Yet, curiously, the legal lefties don’t take this position on issues where the public disagrees with them. When is the last time a noted progressive law professor insisted that the high court uphold free speech restrictions, intrusive police searches, and other assaults on civil liberties or criminal procedural protections because of public support? Or reject gay rights and marriage, which once were unpopular? After all, if the people believe that there is no such thing as an “unreasonable” search and seizure, shouldn’t the Court implement that perspective?
Moreover, despite the abortion lobby’s assumption that the American people are on its side, the public is almost equally split between pro-abortion (49 percent) and pro-life (47 percent). A majority says it is pro-Roe, without understanding what Roe says or allows. A recent Gallup poll found that 19 percent of Americans wanted the procedure to be banned in all circumstances, 32 percent favored that it be legal in all circumstances, and 48 percent backed legality in “only certain circumstances.” When asked more detailed questions — such as the moral acceptability of abortion — the public also divides sharply.
The numbers have varied over time, but in contrast to other super-heated social issues, such as gay marriage, popular deadlock has continued. In September 1994, 38 percent believed abortion should be legal only in a few instances. In January 2000 that number was 39 percent. In May 2010 it was 37 percent. Since 2000 the percentage believing abortion should be legal in any circumstance has never topped 34 percent. Over the same period, the number claiming to be pro-choice never topped 51 percent, and the number claiming to be pro-life, which has hit 51 percent, never fell below 41 percent.
Today the political class is debating whether Dobbs will aid the Democrats by energizing otherwise disheartened left-wing activists. If so, this highlights the fact that opponents are acting on principle as opposed to politics. At least Politico’s John Harris acknowledged that the decision was not politically-determined, but contradicted those who “believed that Supreme Court justices are pretenders — ideologues and partisan hacks who try to disguise personal agendas behind black robes.” In seeming shock, he admitted that “Ideological aims and partisan ones are at least partly in tension.” To Alito’s credit, he stated that justices shouldn’t be “affected by any extraneous influences such as concern about the public’s reaction our work.” Which is what the Left should want as well if it is as devoted to the Constitution as it claims.
During the era of Roe liberal-conservative judicial battles reflected a predictable pattern. The Left would use the judiciary to turn its legislative agenda into court-made constitutional provisions. Then right-leaning justices would be told that their belief in “restraint” required them to ratify the new precedent, turning it into settled law. Anyone later challenging these rulings would be treated as a radical, threatening everything that Americans are supposed to hold dear. And lefty jurisprudence would continue its inexorable advance.
Alito’s draft opinion suggests that this process is over. Which has sparked a veritable grief-fest on the Left. Especially since at least some progressives recognize that their usual arguments no longer are working. Which is why they are tossing in the kitchen sink. For instance, Defense One warned that “Reversing Roe Would Harm Military Readiness, Abortion-Rights Advocates Warn.” Seriously.
The final indignity for legal lefties is recognition that legal conservatives are, well, celebrating what appears to be an imminent victory. For instance, Mary Ziegler of the Florida State University College of Law was unhappy with the putative Dobb majority’s well-supported arguments, that Roe has deformed U.S. jurisprudence, abortion is different since it involves an independent life, and more. She complained: “These are arguments that would be made by justices who are not merely assuring the demise of abortion rights but delighting in it.”
But how would she greet the reversal of a decision that she believed to be “egregiously wrong and deeply damaging,” as the Dobbs draft termed Roe? The American people as well as justices who support fidelity to the law, in contrast to members of the “make it up as they go along” jurisprudential school, should rejoice that success in a half-century quest to right a great constitutional wrong appears imminent.
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.