On the evening of December 1, 2021 I felt a bit vertiginous.
First of all, I had suddenly been reclassified as a 5.0 tennis player. That unexpected event totally took me by surprise. I was on my heels at the news this morning.
Then this afternoon I read the accounts of the oral arguments held in the Supreme Court in the case of the Dobbs v. Jackson Women’s Health Organization. It would appear, from the comments, that the Supreme Court is prepared to overrule Roe v. Wade. This has been the settled law of the land with respect to abortion for almost five decades. Almost my entire life has had Roe v. Wade as supposedly settled, if highly controversial, case law.
And now that might change.
Of course we will not know until June or July of 2022, when the Court is expected to release its decision. You can never know what SCOTUS might rule.
But from the questions from the justices today in the Dobbs case, it appears that Roe v. Wade will be overruled.
This happens now and again. Plessy v. Ferguson undone by Brown v. Board of Education. Betts v. Brady undone by Gideon vs. Wainwright. Schenck v. United States overruled by Brandenburg v. Ohio.
Still.
This would be an earthquake in American jurisprudence.
Upon hearing of the comments today in the Supreme Court I feel as if the ground is no longer solid under my feet. What was the law for so long would appear to be changing.
By instinct I oppose this.
I am conservative in the sense that, absent a clear and obvious need, formal laws and informal traditions of long duration in a nation should remain in place. We should conserve that which our forefathers found important to get us through the day, unless there is a very good reason to do otherwise. They had their reasons. Stare decisis is important for a reason.
Why stir things up?
About abortion, of all things?
You want to poke a stick into that hornet’s nest?
Nevertheless, I support Roe v. Wade. I think giving unhappily pregnant women the right, even in states like Mississippi and Texas, the right to terminate their fetus safely in the earlier stages of pregnancy should be the law. (My opinion changes the longer a pregnancy lasts, however; it is a complicated matter.) Making abortion “safe, legal, and rare” seems the right policy to me. I spoke at length of this last month. I lamented that we leave matters of such importance to unelected judges. You would think “We the People” could settle a matter like this reasonably through the legislatures.
So it would seem if Roe v. Wade goes away, we will have that chance to make “reasonable” laws about abortion.
Oh but what a shitshow that might turn out to be!
Correct that: what a shitshow that WILL turn out to be, alas.
PERHAPS OVERTURNING ROE v. WADE IS THE RIGHT LEGAL DECISION, BUT WHAT NEXT?
I have to admit that the legal reasoning behind Roe v. Wade is tenuous, at best. The idea that a woman has a right to privacy under a strained interpretation of the 14th Amendment in federal law was always a stretch. Critics claimed Justice Blackmun and his narrow majority coalition on the court just made this right up with respect to abortion in 1973. Others will counter that the 1st, 3rd, 4th, 5th, and 9th Amendments collectively give citizens a “zone of privacy.” That is where the Supreme Court stretched that constitutional right to birth control in Griswold v. Connecticut. Then they stretched it even further with Roe v. Wade – to the point where the fabric of the law ripped, in my opinion, from having stretched it too far, with too little textual justification. Where these “unenumerated rights” begin and end sure seems like a squishy business.
The Bill of Rights states plainly freedom of speech and religion, or the right to bear arms, or have an attorney and a speedy trial when charged with a crime, or to remain silent in legal proceedings – that is pretty directly stated.
But a right to an abortion?
It seems to me that nobody in our political past was making a statement about abortion in the U.S. Constitution. Although I am no lawyer, it seems to me that judges in the last few decades made it up. But it seems, in the end, the law is what the Supreme Court says it is. Occasionally they change their minds. Like they seem to be doing now.
But Roe has been the law of the land for fifty years. It has gained a measure of legitimacy through practice and time. Everyday Americans have had their expectations and opportunities framed, to a certain extent, by a constitutionally protected right to abortion, if necessary. This is important.
But, on purely technical terms, I can see why Roe v. Wade is on constitutionally suspect grounds.
While we will have to wait until approximately June 2022 to hear the ruling, and it is dangerous to predict legal rulings with certainty, it looks like the current Supreme Court is is doing a 180-degree turn on abortion law.
Wow.
Federal judges have swatted down abortion bans at the state level like so many mosquitoes for decades. I thought this was settled law.
I guess not.
BUT IT IS THE WRONG POLITICAL OUTCOME, PRACTICALLY
So Roe v. Wade goes away.
Is it time to pass a new amendment to the U.S. Constitution?
Make birth control and abortion (until 15 or 22 weeks or whatever) explicitly protected by a new amendment? Make this previously nebulous idea of a “zone of privacy” in the Constitution crystal-clear and bulletproof by saying so in the law?
Or pass a new federal law in the U.S. Congress that codifies Roe v. Wade in all fifty states? Should we take away the right of Mississippi or Texas to ban abortion at the state level by enacting a law protecting abortion access at the federal level?
The moderate majority asserts its opinion?
Plenty of moderate Republicans and independents, like myself, might support such a federal law passed by the U.S. Congress. Even a constitutional amendment.
But Congress is so polarized that getting anything passed on such a controversial subject might prove difficult. The murkiness of abortion will muddy the waters, and nothing will be clear or simple. And no way could they garner the overwhelming majorities necessary to pass a constitutional amendment on abortion – that’s not going to happen.
Maybe I can contribute money to some organization which could make abortion medication available for free to the needy in places where abortion is illegal? I hear it costs approximately $150 to procure these two drugs, mifepristone and misoprostol, which are necessary for a medical abortion. You would think that anyone mature enough to engage in the adult act of sexual intercourse would also be grown up enough to be able to cobble together $150 to pay for an abortion? But there are always the sad-sack cases. I could contribute money to pay for abortion medication in those cases. That way we could hope to avoid the tragedy of desperate girls/women engaging in “back alley abortions” in states where abortion is illegal. We should try not to return to that past.
Or could conservative states seek to ban mailing abortion medication to their states with laws at the local level? I imagine this would drive the practice underground. Would there be a black market in abortion medication? Luckily the medication is relatively cheap and widely available. It would be hard to ban mifepristone and misoprostol. What would happen?
It is unclear.
What about access to abortion in cases of rape or incest? Or to protect the life of the mother if something went wrong in the pregnancy? Would there be exceptions in the law? Could we carve out an exception for rape, incest, or medical emergencies in federal law in such cases which would apply to all 50 states? I would assume solid majorities nationwide would approve access to legal abortion in such cases. Could the U.S. Congress pass a law? What would state legislatures do in response?
It is unknown.
Because where it was previously protected by judicial fiat in Roe v Wade, abortion law would seem to be at play in the political arena at the state and federal level.
So I have fear for the future.
What will be the new reality? How will it all play out?
My head swims.
Would the overturning of Roe v. Wade by the Supreme Court contribute to the unwinnable “culture wars” which drive Americans apart? Will it roil the populace further? Stir shit up?
President President Biden is 79-years old. He is older than hell. Will he run again in 2024? Would Joe Biden running for re-election even be a good idea? Would he be semi-senile on Inauguration Day in 2025? Vice President Kamala Harris is highly unpopular, and that demagogue Trump makes ambivalent noises about running in 2024. Political leadership in the United States is not exactly strong at the moment. How could it be with so many “culture warriors” out there? Alexandria Ocasio-Cortez and Ted Cruz? Cori Bush and Marjorie Taylor Greene? The loudmouths get all the attention.
Will they be the ones to offer any wisdom on the complicated moral calculus of abortion — an issue about which I am hesitant and ambivalent, not certain and cocksure? You would think that moderates such as myself in the political middle could dictate reasonable terms on abortion — the moderates are the majority on this issue, as in most others —
But the extremes take all the oxygen in the room on abortion, as in too much else. “We’re now trying to deal with a miserably complex issue in a brutalized political culture. Majorities don’t rule in this country; polarized minorities do,” as David Brooks wrote today. The loudmouths.
They will have their say.
Jeez.
What else could go wrong in the next few years?
PLENTY.
The future is worrisome.
So my mind is ill at ease tonight.
2022 is right around the corner. Midterm elections. The road to the presidential election of 2024.
What will happen?
The Supreme Court?
Abortion? Gun control?
There are so many issues.
Poverty. Inequality.
COVID-19 infections and fentanyl overdoses.
Critical race theory. Identity politics.
The rise of strongmen and illiberal political regimes.
China agresses against Taiwan. Russia against Ukraine.
Climate change and global warming.
It can all be a bit too much.
It can be overwhelming.
I’ll be more ready to deal with it tomorrow.
The new dawn always brings with it more hope.
So “good night,” everyone.
Tomorrow morning we shall try again.
(P.S. The Supreme Court did invalidate the Roe v. Wade decision some six months later. Here is my reaction to that.)
Caitlin Flanagan
