Roe: it’s almost all about Politics
May 26, 2022
As most everyone knows, a draft Supreme Court opinion authored by Samuel Alito that overturned Roe v. Wade has created a groundswell of opposition and protests. This opposition has been, and continues to be, mostly politically driven. Tellingly, the hysteria flows more strongly in a deep blue state like Connecticut where abortion rights are not in any danger. Being a politician can be hard, trying to always walk the line of trying to appear decisive while being careful to not actually be decisive. But with Roe, politicians here, especially those that are statewide, only have to worry whether their vocal support of women’s freedoms are stronger than the next politician’s. Its political pandering at its most celebrated. Adoring interest groupies/donors and media make this pandering possible.
The abortion topic in Connecticut is a guaranteed political win. Objective, thoughtful debate on the merits of the issue is soundly and righteously rejected by the political majority with little protest from the political minority. Pro-life individuals are portrayed as backward, Christian fanatic, anti-women, Neanderthals and essentially evil despite the 43% of pro-life individuals that are women. This is all part of the powerful political machine that developed mostly after Roe.
Abortion is one of the most serious issues facing human beings. It deserves sober, serious, thinking and reflection. Instead, at least in Connecticut, it has degraded into a political tool consistently used in elections of any consequence. The strategy is to silence opposition through demonization. One of the saddest parts about this dynamic is that for most thoughtful individuals, it attempts to use their proper, instinctive sense of compassion for unborn life and for women and twist it to political ends.
For other people, a small minority I hope, they are well aware of the tool’s power since they shamelessly pursue it to keep the movement potent. But the protest gatherings and snappy signs/slogans (“Don’t like me in your house? Get out of my uterus”) are, like the overzealous views on so many topics these days, becoming tiresome for many people. Watching opportunistic male Congressmen in matching Patagonia jackets following the script by alternately grieving and spewing anger with the crowd rings hollow. The people that make the machine run cannot allow independent thinking and the orthodoxy to change and when their livelihoods, political future, gained power, and self-identity have come to depend on it.
As has been pointed out by now, the draft ruling does not outlaw abortion although you wouldn’t know it from the media coverage. All this draft ruling does, were it to be finalized and issued later in the year, is return the usurpation of the legislature’s powers back to the legislature. The legislature, the people, is where this power is designated under our system of government. State legislatures are free to pass laws, codifying or expanding abortion rights. Connecticut, already having liberal abortion laws on the books was not in need of any changes, but Democrats were not about to let a political opportunity go to waste. They quickly scrambled to pass something. Public Act 22-19 was the result. It codified into law the existing practice of allowing medical professionals besides doctors to perform abortions and created abortion avenues in Connecticut for women in states that will be or are limiting abortion. Not much in actual substance as far as abortion in Connecticut goes, but very important for politics.
The bill signing by Governor Lamont took place at a desk placed in the Capitol parking area to make sure no one missed it – even the people driving by the Capitol. Seeing the Governor eagerly assisted by a pen handing, camera crowding, Lt. Governor Bysiewicz and surrounded by adoring supporters says it all. Within days, the Governor used the law for its real purpose – politics and the November elections. Like a trial lawyer only asking a question that he knows the answer to, Lamont demanded his reticent pro-life Republican challenger Bob Stefanowski “to speak up and let us know where you stand.” After some previous dodging of the issue, Stefanowski was forced to say that “under no circumstances” would he as Governor attempt to exchange Connecticut codified laws on abortion. Doubtless hoping for a pro-life stance that they could capitalize on, Democrats parsed his stamen surrendered It’s amazing how many pro-life politicians, like Stefanowski and President Biden, there are pro-life in name only.
In addition to state legislatures, Congress can pass a nationwide abortion law that will overrule any state laws. As has been seen, many people will portray these facts otherwise, but the power to decide policy – outside the Constitution – rests with the people. Almost everyone will not like some laws that are passed, and can probably point to many they disagree with, but in our system, majority rules and these laws – if a system is to function properly – are to be observed. In recent years however, disagreeable states openly thwart federal laws.
Unfortunately, Republicans have messaged opposition to expansive rulings like Roe poorly. One way this happens is by overly celebrating the appointment of conservative Supreme Court justices as a victory for Republicans/conservatives. But appointing originalist judges – who are considered conservative only because activist judges have been dominated by the Left - to the Supreme Court does not tilt the playing field in conservatives’ favor, or at least should not. But the Left has portrayed originalist rulings that overturn decades of judicial activism as activism by originalist judges. That’s because when one has it all their own way for decades, one tends to think that is how the system should work. Why bother with all that bill passing and constitutional amendment work when a few like-minded justices can just circumvent the will of the people and rule in your favor. Giving up easily won ill-gotten gains and facing the work of popular persuasion is much harder.
And make no mistake, the Roe decision was the product of an activist court mostly begun under Chief Justice Earl Warren in the 1950s and openly championed by Justices such as William Brennan. Roe was based heavily on a “right to privacy” created by the Supreme Court in 1965’s Griswold v. Connecticut, which involved a ban on contraception, where the court, straining to justify its activism, wrote that they were guided not by the Constitution but its “concept of liberty” which “protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights.” That is a smoking gun. However desirable this policy may be, creating a new right is not within the constitutional jurisdiction of the Supreme Court. Justices do not have the legal authority to grant themselves the power to substitute their personal belief/policy for that of the Constitution. Using one’s public position to circumvent the power assigned to it is corruption. The higher up it is, the more serious the corruption, and the Supreme Court is as high as it gets.
There were other Supreme Court cases before Griswold that involved building a theoretical “right” of privacy that eventually morphed into a right to abortion. Stare Decisis, or judicial precedence, is a convenient judicial tool to build a stairway, case by case, to ever expanding rights or policies justifying the latest activist ruling on previous activist rulings. Such is the nature of corruption. Steal a little from the till, then a little more, then a little more and before you know it, its grand larceny. Such is Roe.
Although there is an understandable functionality to precedence, it can be ignored when courts determine it justified. This makes sense on a practical level but it points out the inherent contradiction with following precedence. Basing everything on precedence could keep a wrong-headed ruling on the books forever. 1954’s Brown v. Board of Education decision (which overturned the 1896 ruling upholding separate but equal) would never have occurred if the court bound itself to precedence. There is no answer to this contradiction which is not anyone’s fault – just as there is no answer to an elected representative voting in favor of their district over that of the country (or what have you). Both are cases of: they are supposed to do both at the same time.
This is why discretion is so dangerous in the hands of those with power. People of any political persuasion (not counting anarchists) should be against judicial activism – and in theory they are when the abuses occur against them. Liberals are quick to point out abuses of discretion/power by those they disfavor such as the police, as was seen after George Floyd was killed. But are celebratory when discretion is abused in their favor (Roe). This would likely be the same if the roles were reversed and conservative justices believed in expansive rulings and began deciding cases in conservatives’ favor rather than based on the Constitution’s actual words.
To be fair, there may be some of that going on now with a court that has been increasingly politicized and is considered conservative. The 2017 Janus ruling, for example, which decided that requiring state employees to pay union dues was unconstitutional and a violation of the first amendment’s freedom of speech, seems a stretch since employers can require all sorts of things from their employees. Employees are free to leave or choose not to seek employment there. The dues in question were collectively bargained with the union(s) by the employer so it became a condition of employment. Meanwhile the law in Connecticut disallows certain employees like those in the Legislative Branch from unionizing. A ban on collective bargaining seems like more of a violation of freedom of speech and assembly than does negotiated union dues. So, was that ruling due to conservative beliefs or an originalist view of the Constitution?
But when the court gets illegitimately involved in political matters and making liberal public policy for decades, there is bound to be a backlash that is not wholly driven by objectivity or a return to strict originalism. The fact that a court is considered liberal or conservative is a sign that there is a problem with how the system is working. Such a distinction has no place on courts where parties go expecting objective, apolitical rulings.
Since the 1973 Roe v. Wade decision, reported abortions grew from 745,000 to a peak of 1.6 million in 1990 to probably about 850,000 today. It is hard to know what the abortion level was before Roe since state abortion law varied with it being illegal in 30 states and legal under certain circumstances in 20 states but it is safe to say that abortion increased and these numbers which total somewhere around 50 million since 1973 are not insignificant. It is also safe to say that the vast majority of people 1) don’t think there is a person/life difference between a fetus seconds away from exiting the womb and the baby that emerges and 2) understand that the various burdens of pregnancy fall almost exclusively on women and that women have a right to self-determination.
When a fetus becomes a human life/person along with balancing intrusions on women’s freedom is where the abortion debate should be centered. Such a complex, penultimately impactful issue requires more than average attention and open-minded thought. Having to wade through the distortions and mischaracterizations, along with strategically and liberally applied demonization, makes an already difficult policy formulation task almost overwhelming. But the political machine doesn’t want you to see or think clearly and independently. There seems little sign that these dynamics will change.