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 was arguing last night with one of my snobbish Yale friends who, though conservative, has imbibed enough of the toxic perspective of the elect to view the Religious Right as a major problem.

I contended that coercion, these days, was typically coming from intolerant secularists determined to drive religious symbols out of public spaces, and eager to punish private individuals or groups (like the Boy Scouts) who differ with them on moral issues. My friend countered by alluding to a legislative proposal in some retarditaire fly-over state which would compel Reproductive Health clinics to notify parents before supplying birth control items to persons under 18.

My own view is that children are expensive and a lot of trouble. Their parents, not the state or Planned Parenthood, brought them into the world, fed them, housed them, clothed them, and sat up with them when they were sick. Parents have a right to bring their children up with their own values. And parents’ rights include, at least, the formal (even if only theoretical) right of deciding if Peggy Sue at age 17 can go on the pill. Practically, I expect lots of 17-year-old kids can, and do, go around their parents and make these kinds of decisions for themselves, but that’s their business. These are matters for individuals and families to decide, not for teachers or school administrators, and not for government or public interest groups.

The notion that “we know better, kids are going to have sex, and we’re going to give them the tools to have sex without consequences whether their parents like it or not” is arrogant, simplistic, and typical of the liberal elite which is universally ready, willing, and eager to intrude into everyone else’s private sphere in order to tell everyone just what’s best for him.

I’m not religious or particularly Puritanical, but even I find the story below, from Natural News (4/3/08), appalling.

A middle school in Portland, Maine is considering a proposal to provide birth control pills and patches to students as young as 11 years old. King Middle School launched a reproductive health program after five of the 135 students who visited the school’s health center in 2006 reported being sexually active. The program already provides condoms to students, but the new proposal would expand this to include prescriptions for birth control pills and patches (which would then have to be purchased at a pharmacy).

The contraceptives could be dispensed without the knowledge of parents, although written permission would be required for children to receive (unspecified) services from the health center.

The proposed program has attracted controversy, with some people accusing the schools of taking away parental power and encouraging children to have sex too early. But school officials dispute these claims.

“We do certainly sit down and speak with them about why [being sexually active] is not a good choice,” said Amanda Rowe, the school’s nurse coordinator. “But there are some who persist… and they need to be protected.”

Logan Levkoff, a sexologist and relationship expert, said that while the school may be stepping into a role that would better be filled by parents, many parents do not feel comfortable enough to do so. “Parents should be the sex educator for their children,” Levkoff said. “The problem is not every parent feels empowered [to do so].”

Parents interviewed by ABC News were split on their feelings about the proposal.

“I don’t think I would want my child in middle school to be getting birth control pills unless I had something to do with it,” one woman said.

But another woman, a mother, disagreed: “I think that education at that age is appropriate because our culture is saturated with messages about sex,” she said.

Natural News is running a story which really dates back to last Fall.

AP (10/18/07):

After an outbreak of pregnancies among middle school girls, education officials in this city have decided to allow a school health center to make birth control pills available to girls as young as 11.

Maine’s King Middle School is the first in the state to offer full range of contraceptives to 6th-8th graders.

King Middle School will become the first middle school in Maine to make a full range of contraception available, including birth control pills and patches. Condoms have been available at King’s health center since 2000.

Students need parental permission to access the school’s health center. But treatment is confidential under state law, which allows the students to decide whether to inform their parents about the services they receive.

There are no national figures on how many middle schools provide such services. Most middle schoolers range in age from 11 to 13.

“It’s very rare that middle schools do this,” said Divya Mohan, a spokeswoman for the National Assembly on School-Based Health Care.

Portland’s three middle schools reported 17 pregnancies during the last four years, not counting miscarriages or terminated pregnancies that weren’t reported to the school nurse.

The Portland School Committee approved the plan, offered by city health officials, on a 7-2 vote Wednesday night. Whether the prescriptions would be offered this school year or next wasn’t immediately clear.

King is the only one of the three schools with a health center, primarily because it has more students who get free or reduced-price lunch, said Lisa Belanger, who oversees Portland’s student health centers.

Five of the 134 students who visited King’s health center during the 2006-07 school year reported having sexual intercourse, said Amanda Rowe, lead nurse in Portland’s school health centers.