So I met this bright and intelligent woman, only to discover that she’s a single-issue kind of gal. She’s going to vote Obama because electing McCain would enable Republicans to overturn Roe v. Wade. Sadly, she really believes that’s true, because that's what her degree in, I kid you not, the history of women's reproductive rights tells her, and so all other considerations are kicked to the curb.
I suspect she’s not alone, especially given that to Progressives the only valid question of any judicial nominee is: “Will you support Roe v. Wade?”
The ignorance is nauseating.
Quick question: If the United States Supreme Court overturned Roe v. Wade today, could a woman get an abortion tomorrow?
Indisputable answer: Yes. When the Court issued its Roe decision in 1973, the result was that every abortion statute in the nation was erased from the books. If Roe fell tomorrow, the old statutes would not rise from their graves like zombies from Shawn of the Dead. Each and every state legislature would have to enact new legislation. Until then, precisely nothing would change. Abortion clinics would remain in operation, appointments would still be set, abortions would still be performed.
The problem with relying on a court decision granting you a “right” is that a subsequent court ruling can take that “right” away. Most discussions about precedent, “super-precedent”, stare decisis, etc., seek to avoid this. Indeed, without this fact of judicial life we would live in a very different world.
Plessy v. Ferguson declared that separate is equal, that it was lawful and constitutional to separate the races, be it all-white schools, all-black schools, or a “whites only” car on the train. This ruling stood as the law of the land for almost 60 years. Then Brown v. Board of Education came along and said that separate is not equal and mandated school desegregation. Plessy stood for almost 60 years, surely a “super-precedent”, yet Brown threw it out the window.
Ask yourself, “Was the internment of Americans of Japanese ancestry during World War II constitutional?” Most people would say, “No!” Yet the Court, in Korematsu v. United States, said, “Yes!” Korematsu remains the law of the land to this day, and will probably remain so for decades to come.
Korematsu illustrates two facts of legal life: First, that Court decisions can often be, morally at least, completely off the wall. And second, that the Court is powerless to correct its mistakes until a legal challenge is made. Korematsu will remain valid law until it is somehow cited in support of an action. That action will then need to be challenged in court, and that challenge would have to eventually rise before the Court, which then would have an opportunity to re-evaluate the basis for Korematsu and, as with Plessy, send it packing.
If you rely on the Court to grant you a “right”, you are relying on an illusion of stability, and no amount of stacking the Court – either way – will change that fact.
You permanently secure a right by amending the Constitutional. There it remains until such time as someone goes through the process of undoing your amendment (see the 18th Amendment, repealed by the 21st Amendment). The Constitution allows for this process, and we’ve done it some 27 times. It’s not easy, but if you really believe in a woman’s right to choose, in an unalienable “right” to an abortion, then rather than fight judicial appointees your more honest course of action is to seek to have Roe codified in the Constitution. (And ditto, in reverse, to the pro-life crowd.)
An interesting thought experiment is whether an amendment, declaring such a right, can be unconstitutional? For an abortion amendment to be consistent with the rest of US law, it would have to draw a bright line declaring when life begins. Roe’s trimester approach was not a bright line, and so was constantly challenged until Planned Parenthood of Pennsylvania v. Casey. But even as Casey tossed Roe’s trimester formula and declared an absolute right to abortion, it claimed to hinge on that sticky word “viable”.
The problem, for abortion activists, is that once a fetus becomes viable – roughly meaning that it’s able to survive outside the womb – then it should be considered alive. And once considered alive, it’s not a fetus but a baby, an independent life entitled to all the protections afforded under US law. In that circumstance, the law will not allow you to choose the mother’s life over the life of her unborn child. The law here is clear, black and white: You cannot kill an innocent even if doing so saves another’s life.
You see here why the pro-choice/pro-abortion side can never address the issue of when life begins. Once that line is drawn then restrictions on abortion are not only inevitable, they are unavoidable. To be a valid law, a hypothetical abortion amendment would have to declare when life began. It would have to be a bright line. On one side of the line, abortion is legal; on the other, abortion is illegal.
If it helps, under English common law life began with the baby’s first breath. Until actual birth, it wasn’t “alive.” And if that seems like a bright line, then how does that reconcile with DNX, “dilate and extract”, otherwise known as “partial-birth abortion”, a late-term procedure where the living child is partially delivered, killed, and then removed?
And for another thought experiment, rather than the judiciary, focus instead on the legislature itself. Article III of the Constitution grants the Court jurisdiction over a narrow range of issues. That the Court has insinuated itself elsewhere is the result of Congressional inaction. The Constitution states quite clearly that the Congress has the authority to restrict the Court’s jurisdiction: “with such Exceptions, and under such Regulations as the Congress shall make” (US Constitution, Art.III Sec.2 cl.2 s.2, emphasis mine).
So consider the circumstance wherein the Congress enacts a statute that declares abortion illegal and, in the same statute, says the Federal court system has no jurisdiction over matters involving this statute. The first clause is in conflict with Roe/Casey, but the second clause says the Court no longer has jurisdiction over the matter. They literally cannot hear any case pertaining to the ban on abortion.
What result? That is the very essence of a Constitutional crisis and could have happened not so very long ago if worries about Republicans, re abortion, had been valid. Consider that when Bush got elected, Republicans controlled the White House, the House, and the Senate. They could have passed just this sort of statute, but they didn’t.
Single-issue litmus tests for presidential candidates are never valid. In the Congress and the Presidency, when it comes to abortion, both sides lack the stones to do the truly hard thing.
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