The issue of legal abortion is a thorny one, and one reason is that the issue has become so politicized. Conservatives hate it, and liberals love it, pure and simple. But just as simple is the fact that both justice and the Supreme Court are supposed to be apolitical. They’re only interested in the law.
And that’s how I want to look at this issue for this article. I am putting my personal and political feelings on this issue aside, and I’m throwing out the possible political motivations of the justices of both courts. I want to look at this issue in terms of interpreting the law. Because that’s what it’s all supposed to be about. And I invite you to put your personal feelings on the issue aside for a few minutes and join me. Let’s have a chat. If this isn’t your bag, thanks for stopping by, and I’ll catch ya tomorrow, hopefully with something more interesting for you.
In a landmark decision in 1972, the Supreme Court ruled in a 7-2 decision that the fight to an abortion was a constitutional right. They set a 26 week limit for a legal abortion, and enjoined individual states from banning abortion.
This decision was a pure interpretation of the law and the constitution, which is what the Supreme Court is specifically set up to do. Correct me if I’m wrong, but I don’t ever recall seeing the subject of abortion is never mentioned in the constitution. The justices listened to oral arguments, their law clerks did the research, they debated, and came to a decision. And remember that there were multiple conservative justices appointed by GOP Presidents who voted in the majority.
Liberals celebrated the decision as a confirmation of individual rights and free choice under the law. Conservatives railed the court had overreached. The constitution sets strict limits on what the federal government does and doesn’t have control over. And moral and medical issues weren’t two of them. Constitutionally those should have fallen under states rights. Fast forward to 2022. A different court, with a different ideological spectrum relitigated the issue in the Dobbs case. And in this case, the court determined that the previous court had ruled erroneously in favor of abortion rights on a federal level. They determined that there was no constitutional reason for the federal courts to intervene, and that the issue should have booted back to the states for self determination.
Let’s make this crystal clear, because it’s important. Nowhere in the Dobbs decision does the Supreme Court criminalize, restrict, or ban abortion! It simply states that the previous court had no right to adjudicate abortion rights, and sent the issue back to the states for self determination.
And now we get to the meat and potatoes of this thesis. We are now slightly over more than a year since the Dobbs ruling, and there has been a great deal of motion on both sides. On one side, several red states such as North Carolina, South Carolina, Florida, Mississippi, Alabama, Texas, Utah and Arkansas have all enacted restrictive new abortion laws. Which was the whole basis of the Dobbs decision, leave it up to the states to decide.
But here’s the McGuffin. In several of these states, including Texas, Utah, Georgia and I believe North Carolina, those new laws are now tied up in state courts fighting out the issue as to whether or not the new laws are constitutional in those states. And that’s also exactly what the Dobbs ruling meant to do. Leave it up to the states to decide.
And if I’m Chief Justice John Roberts, here’s where I’m taking a victory lap. In the year since the Dobbs decision, seven states, six of them red, have all put citizen driven constitutional initiatives on the ballot in state elections to enshrine abortion rights into the state constitution. And you know what? Every goddamn time out, those bad boys won! The court sent the issue back to the states to decide, and this time it was the citizens, and not the legislature that had the final word on bodily autonomy. The system still works. And this November, Florida and Ohio have ballot initiatives to enshrine abortion rights in the state constitution. And ya know what? I bet the day after election day, the pro choice side will now be 9-9.
Look, I’m no moron, or you wouldn’t be reading this. Nobody makes critical decisions on a totally impersonal basis. Every decision we make, whether what car to buy, where to live, or which politician to vote for is tainted by our own personal prejudices, likes, dislikes and opinions. And if we can’t do it, why should we expect our judges to leave their own personal beliefs at the door. As a political philosopher once said, Even fascism would be an acceptable form of government if it was run by angels.
But our system of government is a little more realistic and flexible than that. Our Founding Fathers took into account that our system of democracy was being created by imperfect men, and would be run by imperfect men. And that’s fine. After all, whom among us has never f*cked up a decision. But the concept of democracy requires that the citizens believe that their chosen representatives are governing for them in good faith. And as Chief Justise Roberts might point out, if the citizens don’t like the way their representatives are representatives are dealing with the abortion issue, there’s a remedy available that doesn’t involve the Supreme Court. It’s called the ballot box. A solution seven states have already made good use of.
And I will close with this, my first and last act of personal privilege. In the Dobbs decision, I don’t believe that the conservative members of the court were honest brokers. I believe that they used the Dobbs decision to settle personal scores for themselves and their backers. At the same time, that doesn’t necessarily mean that the decision was wrong, only that the logic was wrong. But in that single decision, they unwittingly woke the sleeping giant. They blaringly reminded every American citizen that it is the voters who ultimately determine our destiny, and not the slobs we elected. And as shocked as the conservative members of the court are at the outcome of their handiwork, it should also serve as a flashing red light to the slobs in GOP controlled legislatures. We’re pissed. We have long memories. We have the power. And we vote. Here endeth the lesson.