O.k., so I’ve been radio silent for over a year. It’s been quite a year. More on that another time. Maybe.
Looking back, though, I discovered that my last post addressed President Biden’s executive order rescinding the Mexico City Policy (prohibiting foreign aid to non-governmental organizations which provide or support abortions). How appropriate, then, that a year later this immediately subsequent post is about the Supreme Court’s pending opinion possibly overturning Roe v. Wade. Apparently a lot can happen in a year.
I’ve got a whole bunch of thoughts on the Supreme Court leak of Justice Alio’s draft opinion. As Willie Wonka said, “So much time and so little to do. Wait a minute. Strike that. Reverse it.” Or, as Bill Clinton said as he surveyed the female intern pool: “Where do I start?”
Let’s start with the absolutely ridiculous picture of a young woman in front of the Supreme Court holding a sign that says “If 50 Years Of Precedent Isn’t Settled Law, Nothing Is!” Now, as a lawyer, I am a huge fan of stare decisis, the legal doctrine that gives enormous, *almost* unassailable deference to prior legal opinions. Basically, once the Supreme Court has ruled on a matter, the argument is over, pretty much for all time. This doctrine is not only proper, but it is fundamental and critical to the effective functioning of the American legal system. Without it, our legal environment would be extraordinarily unpredictable, which would make our criminal, business, domestic, and a host of other environments equally unpredictable.
However, stare decisis isn’t absolute, as we rightly determined when, for example in 1954 the Supreme Court in Plessy v. Ferguson overruled the enshrined law of segregation (“separate but equal”) established by that Court’s opinion in the 1896 case Brown v. Board of Education — “settled law” of 58 years. All sorts of things can change what the law is, or should be. Technological advances change the way we think about 4th Amendment search and seizure (does monitoring your car’s OnStar GPS count as a “search” for Constitutional purposes?). How does online commerce affect the Commerce Clause? And, more specifically on point, do our advances in fetal medicine and embryology have any relevance to the determination of when life begins? As circumstances change and our knowledge and understanding of the universe advance, we should be willing to apply such changes to the law and re-examine whether or not we, you know, got something wrong. C.S. Lewis, I think, said it best in Mere Christianity:
We all want progress. But progress means getting nearer to the place where you want to be. And if you have taken a wrong turning, then to go forward does not get you any nearer. If you are on the wrong road, progress means doing an about-turn and walking back to the right road; and in that case the man who turns back soonest is the most progressive man. We have all seen this when doing arithmetic. When I have started a sum the wrong way, the sooner I admit this and go back and start over again, the faster I shall get on. There is nothing progressive about being pigheaded and refusing to admit a mistake.
Roe was wrong. It was wrong on a legal basis (as Alito quite aptly pointed out), it was wrong on a medical basis (which the Court should never have been asked to determine — more on that in a minute), it was wrong on a logical basis, it was wrong on a moral basis, and it was wrong on a spiritual basis. So the best thing the Supreme Court can do is admit it made a mistake, go back, and look at the whole thing over again. We can’t exactly call a mulligan, because there have apparently been over 63 million babies aborted since the 1973 Roe decision, and those little ones don’t get a “do-over.” But we can, literally, stop the bleeding.
But before we start throwing around pink and blue confetti and popping Similac corks to toast Alito, allow me to be the party pooper in the punch-bowl. First, we don’t actually know that Roe will be overturned. If a lot can happen in a year, let me assure you that a lot can happen at the Supreme Court in the six months between when Alito wrote his draft opinion, and when the Court actually issues its final opinion. Votes can change. Language in the opinion can change. We won’t actually know for certain what the Court is going to do until . . . well, until it does it. A draft opinion is not law. It’s a very hopeful sign, but it is not determinative.
Second, even if the draft opinion is substantially the final one, the legal effect will be to throw the legality of abortion back to the states, not make it illegal. So, those predictably mostly-blue states that already support abortion (i.e. New York, California, etc.) will still allow legal abortions. Those mostly-red states that have tried to restrict or outlaw abortion (i.e. Mississippi, Texas, Oklahoma, etc.) will finally be free to do so. There are a lot of variables at play here, but the most reliable estimates seem to indicate that the number of abortions per year will likely only drop about 12-15% as a result of a SCOTUS decision overturning Roe. Now, for those fetuses (“feti”?) — and the babies, children and adults they will eventually become — that’s a very significant, even life-changing (saving!) number. But for the other 85-88% of aborted babies, they will still be just as dead.
As I think about it, I find it depressingly funny (funny isn’t the right word, but I can’t put my brain on a better one) in a horrifying way that so many people who have made abortion their single-issue voting litmus test, and have jettisoned every other consideration and value in servitude to their pro-life stance and the appointment of judges who will vindicate it, will actually have such a numerically small impact when they finally win the victory for which they have fought so hard and so long. As I’ve said before, the Supreme Court is not, and has never been, our savior.
Don’t get me wrong: I am absolutely thrilled at the prospect of Roe being overturned. That decision was an abomination on a bunch of different levels, not least moral. But I lament that fact that the many of our states will not only allow abortion to stain their society, but even encourage (and, in some instances, subsidize) it. Which, as the tour guide in the needle factory said, brings me to my next point.
According to the leaked draft opinion, the rationale for overturning Roe lies with the fact that there was no established, or at least traditional, right to an abortion at the time the Constitution was written. You see, Constitutional jurisprudence has always held that the Constitution does not list all of our rights; there are innumerable rights (denominated, not coincidentally, “unenumerated rights”) which the Constitution nevertheless protects, provided that right was essentially legally and/or culturally established at the time of the adoption of the Constitution. Second Amendment arguments rely heavily on this, but it can be found in other contexts. No serious person (note that I said “serious”) would argue that the Constitution does not protect a person’s right to discipline their own children, because it was already culturally enshrined that people raise their children as they see fit, within certain parameters. But you won’t find the “right to discipline” in the Constitution — it’s an unenumerated right.
Likewise, you won’t find the right to an abortion in the Constitution. However, unlike the right to discipline (and contrary to what some pro-choice activists would have you believe), abortion was not really culturally established and accepted in 1788 (the year the Constitution took effect). In fact, it was rather frowned upon, and condemned by the church (which back then meant something). Alito’s reasoning, therefore, is that the right to an abortion is not protected by the Constitution, and therefore, with respect to principles of federalism, abortion is a matter to be left to the states. The federal government has no Constitutional mandate or authority to get involved.
The problem with this reasoning, from a legal standpoint, is that it gets the question, and thus the solution, wrong. The right question (properly asked, but improperly answered, in Roe), is “When does a person’s life begin?” The answer to that question is the answer to the abortion question, at least Constitutionally speaking. The Fifth Amendment to the Constitution states that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.” The Fourteenth Amendment states: “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” So, basically, at the point a fetus becomes a “person,” that fetus is entitled to life and the protection of law.
Now I’m not a doctor, and I didn’t stay in a Holiday Inn Express last night, but it seems pretty obvious to me that if a human fetus is alive, it’s a person. It’s not a plant. It’s not a chihuahua. It’s not a platypus. It’s a human person. We can go through all of the scientific arguments about unique DNA and all that, but really all of that stuff has been hashed out before ad nauseum, and even the pro-choice side doesn’t really argue it anymore. Everyone knows the fetus is a person, which is why NARAL take such pains to euphemize it. And if it’s a person, it’s entitled to legal protection, even against the inconvenience of the mother (with a few possible exceptions which I won’t go into here).
The unfortunate circumstances in the Roe case was that the medical community essentially punted their responsibility to make the determination as to when life begins, thus leaving it to the courts to decide. Judges and lawyers are exceptionally ill-equipped to make those kinds of scientific/medical determinations (that’s why they went to law school — they sucked at the sciences, so they became liberal arts majors), but that’s the position they found themselves in. If I was in a mood to be charitable (and I’m not really, but I’ll try anyway), I could note that the state of medical technology and embryology in the early ’70s was not nearly what it is now, so such questions were arguably a bit more fuzzy. Nevertheless, where we are now, scientifically/medically, is where we are now. And where we are now is a place that leaves very little question as to when life begins.
Which brings us back to what the Court should have done, which is to find that at conception the fetus is a “person” for Constitutional purposes, and thus entitled to protection of its life. Had the Court found that, the states would have had no choice in the matter; abortion would have been illegal everywhere. Again, there could have been a few exceptions — for instance, we already have an exception to homicide when it’s self-defense — but generally speaking, we would have rid the nation of the scourge of abortion almost completely.
I should note here another benefit to such a finding. Many critics of the Alito draft opinion are fearful, based on Alito’s reasoning outlined above, that such things as homosexual marriage and interracial marriage would also be facing the chopping block, since those things were also not established rights when the Constitution was ratified. And truthfully, as a matter of sheer jurisprudence, they would be right. For a good analysis of why this is almost certainly not going to happen, see Jonah Goldberg’s G-File here (subscription may be required). Nevertheless, if the Court had anchored its reasoning on the Fifth and Fourteenth Amendment protections of life, the other issues would have been avoided altogether.
My last screed on this is simply the observation that whoever leaked the draft memo should be bathed in honey and staked to a fire ant anthill. O.k., that’s a little harsh; it should be a carpenter ant anthill. The leak may or may not be criminal, I don’t honestly know. But it is nearly as damaging to our country in some respects as the January 6th riot — both events struck a serious blow to the highest branches of our government. The January 6th riot was, fortunately, unsuccessful; this leak, on the other hand, has likely done some serious damage to the integrity and operations of the Supreme Court, the one branch which still had some semblance of credibility and trust. No matter what side you’re on with respect to abortion, we should all be appalled that this leak occurred.
Most of the above has been rather gloomy, so I’ll close with a note of hope, shamelessly plagiarized from my previous post of last year.
[A]ccording to the CDC and the Guttmacher Institute, abortions have fallen fairly consistently since 1980, whether measured as an absolute number of abortions, an abortion rate, or an abortion ratio. There are a couple of small blips in there, but generally speaking the number of babies killed in the womb has consistently declined nearly every year. There were roughly half the number of abortions in 2018 as there were in 1980.
The Supreme Court is not our savior. The President is not our savior. Congress is not our savior. But there is a Savior, and He is working His will, mostly despite our politics rather than through them, to save babies from the scourge of abortion. He is our hope.
