First, let me reiterate my position on abortion. I support a woman’s unfettered right to have an abortion during the early stages of pregnancy. This is essentially what Roe v. Wade, which applies to the first trimester, says.
The news of a leaked United States Supreme Court (SCOTUS) draft opinion indicated that SCOTUS is close to overturning Roe v. Wade. This has prompted me to make some observations. It seems that some pretty big chickens are coming home to roost on both sides of the abortion debate. For the sake of argument, I’ll refer to the pro-abortion side as “Left”, and the anti-abortion side as “Right”.
Of course, the draft is not the final decision, which could be different, perhaps majorly so. So for what it’s worth, below are some excerpts, followed by my thoughts.
In a New York Times piece by Kate Zernike, Elizabeth Dias and Ruth Graham, Leaked Threat to Roe v. Wade Stuns, Then Energizes Americans, there were several references to rights and freedom. This is interesting in light of the Left’s general antipathy to the concept of rights and limited republican government as understood by the Founders. This passage, in particular, caught my eye:
Jordyn McFadden, a first-year law student at Washington University in St. Louis who was studying outside a Starbucks, said the draft ruling that suggests Roe v. Wade will be overturned made her see the Supreme Court as “tyrannical.”
“Just another political body,” said Ms. McFadden, 23, who is from New Hampshire. “It’s insane to me that an unelected body can control the right” to have an abortion. “And after how many years of having the right to an abortion with Roe v. Wade? Now it’s completely over.”
But in 1973, elected state legislatures across the country had outlawed abortion. The unelected U.S. Supreme Court overturned these laws on Constitutional grounds. Why precisely do we have the independent, unelected Supreme Court? As a check on the elected branches of the government! This unelected body’s role and duty is to consider legislative or executive branch actions in a constitutional context, and if necessary overturn laws that violate the U.S. Constitution and thus violate individual rights. To fulfill that role, the Founders understood, the Court needed to be free of political or popular pressures. Hence, lifetime tenure and unelected status.
The fact that the SCOTUS all too often fails in its responsibility to uphold the Constitution and protect individual rights does not negate the crucial checks-and-balances Constitutional role of the SCOTUS and the Federal court system overall. The Founders well understood that elected legislatures can be thoroughly tyrannical. Indeed, Roe v. Wade was an instance of this unelected body properly doing its job of protecting individual rights from tyrannical state legislatures. The Court overturned state laws banning abortion in the first trimester.
Yet, McFadden wants to place abortion rights back under the control of elected legislatures, and remove it as a right protected by the Constitution, where abortion rights would remain protected from legislative encroachment and abridgement. Indeed, in the leaked draft opinion written by Justice Samuel A. Alito Jr., Alito agrees with McFadden that “the people’s elected representatives” should “‘control the right’ to have an abortion.” Alito wrote:
Our nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.
It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. [my emphasis]
And that’s exactly what repealing Roe would do: Repeal would strip the right of abortion—the right of the individual to control her own body, the Right to Life—from ironclad national Constitutional protection and switch the fate of that right into the hands of elected legislatures, where about half the states would violate that right and outlaw most abortions!
True, the current court will, if it overturned Roe, have reneged on its proper function. But one bad ruling does not repudiate the Court’s independent role. McFadden’s position highlights a giant chicken coming home to roost over the Left. The Left’s infatuation with Democracy and the right to vote as paramount was made explicit by Leftist intellectuals for decades. Indeed, President Joe Biden recently made the Left’s premise perfectly clear. Said Biden:
The fundamental right to vote is the right from which all other rights flow.
This premise is a direct repudiation of Americanism, with roots tracing back to the founding of the Democratic Party in 1828. Protecting “certain unalienable rights” of the individual from the encroachments of elected bodies is precisely what the Constitution is designed to do, and the Supreme Court is designed to uphold. But according to the Democratic Party’s radical and reactionary reinterpretation of the American Founding, America is a democracy, not a constitutionally limited republic. To the Left, the right to vote, rather than unalienable rights to life, liberty, and property, is primary. The exact meaning of Biden’s declaration is that all other rights, including abortion rights, are fair game for elections and elected legislatures. Democracy, in other words, trumps individual rights.
Removing abortion from the ironclad protection of the constitution, and turning its fate over to elected bodies (or electoral referendums), is precisely what the draft opinion, if it holds, would do. After decades of ranting that every part of our lives, liberties, and properties are up for grabs in every election, why is the Left now so enraged? Isn’t Alito’s statement exactly what they have been wishing for? After all, this is the same party that once stood for the idea that slavery should be decided state by state, either by elected legislatures or by popular referendum.
The Left’s dogmatic prioritizing of voting rights over all other rights is coming back to haunt them. And it is a Conservative-leaning SCOTUS that is delivering exactly what they wished for. Welcome home, giant chicken.
Which leads to the equally huge double standard from the Right.
In another New York Times piece by Maria Cramer, Here are key passages from the leaked Supreme Court draft opinion, this phrase by Alito is stunning:
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.
I thought conservatives were the champions of the Constitution? I thought conservatives understood that the Constitution is a check on the government’s powers, not a grant of rights. I thought they understood that rights precede government, as the Declaration of Independence clearly states. And that “To secure these rights,” it says, “governments are instituted among men, drawing their just powers from the consent of the governed.”
True, “the Constitution makes no reference to abortion.” And that’s the point. No where does the Constitution grant government the power to ban abortion, or more generally to infringe the individual’s right to his or her right to control the functions of their own bodies? It just doesn’t.
It is NOT true that “no such right is implicitly protected by any constitutional provision.” The Ninth Amendment states unequivocally that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Conservatives may try to claim that the “original intent” of the drafters of the Constitution did not include abortion in the unenumerated rights retained by the people. But that bit of wishful thinking clashes with the hard, precise meaning of the Ninth Amendment. No objective reading of that Amendment can possibly conclude that a woman’s right to terminate a reproductive function of her own body is not one of the unenumerated rights.The text is clear. The words are clear. The Constitution does not record “intent.” It explicitly states. It says what it says.
There you have it. The Left’s professed uncompromising allegiance to absolute democracy has been shattered. It is getting what it pounds the table for—democracy unconstrained by constitutional protections for individual rights. The Left denies and disparages rights on democratic grounds—until a right it values comes under attack. The Right’s claim to be uncompromising defenders of the Constitution is likewise shattered. It upholds the Constitution—until the Constitution protects a right Conservatives don’t like.
Related Reading:
Abortion and Individual Rights - Part 1, Part 2, Part 3
Defending Reproductive Rights Depends Upon Upholding All Rights
The Assault on Abortion Rights Undermines All Our Liberties, by Diana Hsieh and Ari Armstrong for The Objective Standard
Abortion Rights are Pro-Life, by Leonard Piekoff for HUFFPOST
Restoring the Lost Constitution: The Presumption of Liberty by Randy E. Barnett
The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty by Timothy Sandefur
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