Roger Brooke Taney, Chief Justice of the United States March 28, 1836 — Oct 12, 1864, Author of Dred Scott v. Sandford, 60 U.S. 393 (1856).
The post-WWII Conservative Movement’s greatest accomplishment has clearly been elevating jurisprudential reasoning and debate at law schools and the Supreme Court sometimes from the level of “penumbras” and intuitions to a level of serious engagement with the Constitution and the intent of the framers.
Yesterday’s Court decision in Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 597 U.S deserves to be welcomed and applauded as a victory for the Constitution and the Rule of Law, regardless of one’s views as to desirability of access to abortion.
As a matter of fact, I personally think legal abortion was a good thing practically. Legal abortion was one of the few ways our Society’s policies were eugenic. I think it is hard to dispute that fewer women so wicked, or simply so morally obtuse, as to be willing to kill their own babies, reproducing has to be a Good Thing. Legal abortion undoubtedly also resulted in fewer criminals, fewer people living in dependency on Welfare, and fewer democrat voters. The argument from Utility is all in favor of Abortion.
Desirable as better eugenic outcomes may be, nonetheless, the integrity of our governmental processes and fidelity to the Rule of Law are more important.
The issue of Abortion is a classic instance, resembling a number of major public issues in the past on which the country was deeply, and fairly evenly, divided. The issue of Slavery in the 19th Century was, of course, the classic paradigm issue of the kind.
Justice Blackmun, in Roe v. Wade, 410 U.S. 113 (1973), followed the precise example of Chief Justice Roger B. Taney in his Dred Scott decision, by attempting to resolve finally a fractious, painful national quarrel by usurpative judicial fiat.
Supreme Court majorities experience a temptation to assume dictatorial powers precisely in the kinds of rare cases which evoke the deepest national passions and on which the opposing factions are both sufficiently strong as to preclude the near-term victory of either nationally. It is in just such hard cases that partisan Court majorities are prone to step forward highhandedly to try to impose a nation-wide consensus otherwise unachievable.
Dred Scott, predictably, inflamed Abolitionist sentiments in the North and was responded to with Nullification and open resistance. The Dred Scott decision, in fact, played a significant role in deepening the divisions leading ultimately to the Civil War that finally settled the issue of Slavery at the cost of many billions of dollars and the lives of two and a half per cent of the entire national population.
Removing decisions people care about deeply from elected legislatures accountable to the voters and substituting judicial fiat fundamentally violates the democratic process and denies the whole idea of Federalism. We hold elections so voters have the opportunity to express their policy preferences via the choice of their representatives in the legislatures. And the whole point of there being individual states is to allow different local cultures with different opinions and different ideals to make their own rules.
The 20th Century Supreme Court was no more entitled to tell strongly religious states they must countenance Abortion than the 19th Century Supreme Court was to tell citizens of New England and Midwestern states that they must become slave catchers.
Judicial Overreach is highly likely to fail in its intent to resolve a contest permanently. On the contrary, it is much more likely to embitter and more deeply arouse the losers to carry on the battle via electoral politics and thereby it politicizes judicial appointments. Judicial Overreach is inevitably inflammatory and divisive as well as corrosive to the competitive relationship between the rival parties. Just look at what has happened in Senate confirmations of Supreme Court nominees in the decades since Roe was decided.
Roe’s downfall, therefore, is a happy moment in our country’s history, proving thereby that, despite all, the American system of government really can function properly from time to time.
In response to all the caterwalling and references to back alley abortions, one can respond: This isn’t 1922. Safe and reliable birth control is readily available. There is in general no necessity for women to fall back on Abortion.
And, in any event, Abortion laws are obviously going to vary greatly, reflecting the extreme difference, state to state, in culture, religion, and moral opinions. If you want an abortion, you can always hop on a bus and travel to the nearest blue state.
I’m of two minds on this. I am against abortion, but I understand the argument:
“As a matter of fact, I personally think legal abortion was a good thing practically. Legal abortion was one of the few ways our Society’s policies were eugenic. I think it is hard to dispute that fewer women so wicked, or simply so morally obtuse, as to be willing to kill their own babies, reproducing has to be a Good Thing. Legal abortion undoubtedly also resulted in fewer criminals, fewer people living in dependency on Welfare, and fewer democrat voters. The argument from Utility is all in favor of Abortion.”
We could, however, go another way. We could tell pregnant women who don’t want to be pregnant that we will will take care of them for the duration of their pregnancy. A place to live, proper care, etc. etc. etc. When the baby is born we will put the baby up for adoption. However, the woman must have her tubes tied. Also, her DNA and the DNA of the baby will be filed. This is especially important in the case of rape or incest. Having the DNA on file will help identify the father who then can be held accountable, after, of course, getting the snip themselves. This should be required even in states that permit abortion. The same for all miscarriages. Get that DNA.
The utility of the rule of law is greater than the utility of available abortion – or for that matter greater than the utility of making abortion unavailable, as well.
Now the electorate of each State will be able to decide for themselves which rules they desire, as the Framers intended. Or else the pro-abortion crowd can do the work to convince a sufficient proportion of the national electorate to elect Congress-critters (and a President) who will pass an amendment to the Constitution.
The problem with Roe is that it pre-empted the normal political process, thereby poisoning two generations worth of political discourse – and dividing our country into warring camps. Pre-emption tends to do that.
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Do not forget that this case made it to the Supreme Court because pro-abortionists wanted to legalize killing actual babies, i.e. kill the baby at birth. If they had accepted the initial demands that abortion be available through the first trimester Roe would still be in effect and most anti-abortionists would never have been created. This is all because of over reach by the left and a desire to rub abortion in our face.
But more importantly reversing Roe does not and will not make abortions illegal. It is nothing more than a rare example of a government agency (SCOTUS) being honest and doing their job. The initial Roe decision was a dishonest political decision that inevitably would be overturned by an honest court.
Good analysis. I agree completely.
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