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Guest Commentary / May 9, 2022

If Roe v. Wade Is Overturned, the World Is Not Coming to an End

All that will happen is that the states will be allowed to set their own rules governing abortion. This is as it should be.

By Mark W. Fowler

The unauthorized release of a draft opinion of Justice Samuel Alito in the matter of Dobbs v. Jackson Women’s Health Organization potentially overruling Roe v. Wade has caused significant unhappiness across the country. It is appropriate to assess this development logically, not hysterically. The moral tension between a woman’s bodily autonomy and society’s interest in protecting life might well have sound arguments for and against the practice of abortion. That issue is not the subject of this essay. Today, we’ll deal exclusively with the opinion in Dobbs and why this decision is both proper and not the catastrophe it is being made out to be.

First, nothing in the opinion outlaws abortion, per se. (I have read the draft in its entirety).

Second, the draft opinion expressly deals with abortion and abortion only. It has nothing to say about voting rights, interracial marriage, gay marriage, or Brown v. Board of Education. Any attempt to carry its precedential value beyond that is condemned.

Third, it does not herald a general assault on fundamental rights of women, minorities, LGBTQ people, etc. It would be beneficial to all if certain progressive politicians and commentators would take a deep breath and read the opinion. Nothing in it as written warrants tearing our robes and going about in sackcloth and ashes. Only those with a malicious self-interest in splitting our society say otherwise.

Someone please contact all handwringing progressives and tell them to relax. The sky is not falling, and the world is not coming to an end. Moreover, this does not herald a return to 17th-century norms.

So why the change? Roe was a mess from the beginning in that it was incorrectly decided, provided little in the way of guidance for questions of this type, and created a right that was not found in history or in the Constitution. As Justice White said at the time, “It was a raw exercise of judicial power” that took the Court out of its traditional role. Commentators and legal scholars on both sides of the spectrum have criticized it.

There is no mention of abortion in the Constitution. Such a right was cobbled together from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. But even then, none of the majority could concur on which amendment contained that right of privacy. Ultimately, defenders of Roe decided that the right was found in the Fourteenth amendment. When Roe was decided, the Court incorrectly decided abortion was somehow an acceptable practice under the Constitution. But in fact, it was prohibited at common law, and 30 states had criminal provisions against it at the time the14th Amendment was adopted. Indeed, the historical evidence was directly the opposite of what the Court declared it was. This was a serious fault long recognized by scholars and judges.

Neither Roe nor the subsequent case Casey v. Planned Parenthood settled the underlying political question over how to address the tension between a woman’s bodily autonomy and the State’s interest in protecting potential future human life. Roe laid out a complicated regimen regulating abortion based on the three trimesters. In the first trimester, the decision was left to the woman and her doctor. In the second semester, the State had a greater interest in regulating abortion, but that limitation was not usefully defined. In the third trimester, because of the potential viability of the fetus, the states could impose stricter limitations. But this regimen was not constitutional law. It was regulation from the bench.

The principle of stare decisis (Latin for “let the decision stand”) generally, but not always, requires that long-settled cases not be overturned except for compelling reasons. While it is true that Roe has been law for 50 years, from its issuance it has been subject to significant criticism for its weaknesses. In Dobbs, the Court addressed this issue. First, the political question has not been settled. Many states now have passed laws limiting abortion in one way or another. Second, Roe and Casey are difficult to apply. Casey held that some limitations on abortion could be legislated so long as they were not undue burdens. The problem is that no one reliably knows what an undue burden is. This invites endless litigation over “let’s give it a try” legislation. Third, as Ruth Bader Ginsburg pointed out, the question of where to balance the rights of a woman and her baby are questions best left to the people themselves via their votes for members of the state legislature.

The practical legal effect of overruling Roe v. Wade and Casey v. Planned Parenthood is simply that each of the states will now have the freedom to decide for themselves what the regulations for abortion will be.

And that is it.

Abortion clinics will not be shuttered when the decision is announced. Some states will move to pass more restrictive laws. Some states will pass less restrictive laws. It is true, of course, that some women will find themselves in the unenviable position of living in states where abortion is limited to an extent they find inconvenient. They will have to travel elsewhere to have that done. That is an imposition, to be sure, but hardly a catastrophe given today’s societal mobility. Moreover, it will potentially increase demand for and use of contraceptives, a development that would serve everyone’s interest. Indeed, consistent use of contraceptives would render the matter largely moot.

There are no conservatives or pro-life advocates who want or anticipate that women will die as a result of this decision. We will not be stumbling over the corpses of dead women who are victims of botched self-abortions in public restrooms. We are not going to return to an (imagined) society where voting rights are diminished, interracial marriage is forbidden, gay and marriage is eliminated. We will not as a society be forcing women to undergo unwanted pregnancies. There will be opportunities for nearly all who need them to have abortions. They may have to make the decision sooner, or undergo counseling, or wait a period of time to deliberate on the decision. And a studied approach to the matter is warranted. This is different from removing a tumor or having a face lift. It involves the potential life of another human being.

The language of the opinion itself sets the issue apart as special. Abortion is not like the right to marry, the right to engage in gay sex, or the right to marry a person of the same sex. None of those issues involve the termination of a potential child’s life. It is that concept that mandates that Roe be overruled. What this decision does and all that it does is allow the states to address the question as they see fit.

Inasmuch as women tend to vote in larger numbers than men, it is possible our society will quickly reach an acceptable level of compromise on the issue. This is as it should be.

There are issues left to address. Let us turn to those. In every court I ever attended, the session begins with all present standing in deference to the judge. Not the person, but the concept of the judge. It is an implied covenant that judging is important business, and a degree of solemnity is indicated. Judging should be free of the influence of the mob. Judging should be based on the law. The figure of justice is blindfolded for that reason, as she weighs the merits of the case in front of her. Judges wear robes to indicate their mastery of the law and to represent that they are deciding issue of law, not favoring personalities.

Each Supreme Court justice has a number of law clerks who work for them. These are typically graduates from prestigious law schools and these candidates have exceptional qualities. The Court members exchange opinions after a preliminary vote following arguments. Often, justices change votes. This process is in secret and allows the justices to think about, deliberate on, and debate the issue free of emotion and public pressure. Leaking this preliminary opinion for any reason, however noble the leaker thought it might be, is a serious departure from precedent. It may be a crime. Threatening justices may be a crime. It was a despicable act and rightly condemned. If it was a clerk, he or she will likely be disbarred forever. It is a serious breach of decorum and custom.

The Supreme Court’s legitimacy rests on the perception that it is deciding cases based on the law and is not swayed by transient public sentiment expressed by those who threaten and protest inappropriately. As a society, we should not begin a process of attempting to influence the Court by threats or protests. The Court has neither force nor a mechanism for enforcing its will, and its judgments must be respected simply because they come from the Court. That Senators Elizabeth Warren and Chuck Schumer and Vice President Kamala Harris have made public statements threatening or disparaging the Court is disgraceful. That President Joe Biden has not urged calm and respect for the Court is disgraceful. Democrats who bleat for changing the number of justices on the Court because of its present composition tear at the fabric of our society. The dignity of our system may not be all that we would like, but we must not let public outrage govern judicial proceedings.

President Biden and Vice President Harris and all those who spread fear about the effect of this case on gay rights, LGBTQ rights, voting rights, and immigration are simply lying. They are lying to gin up support at the polls. Inasmuch as they have nothing else to offer to support their reelection, they will attempt to pit us against each other. For this they deserve our contempt and our rejection. They do this to our society to serve their own interests.

All that will happen with this decision is that the states will be allowed to set their own rules governing abortion. The sky is not falling. The world is not coming to an end. Let us stop acting as though it was.

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