A ‘Political Explosion’ on Abortion Might Be What We Need

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The Supreme Court hasn’t asked a single question of the lawyers in the Mississippi abortion case but already the papers have been predicting doom. If the Nine overturn Roe v. Wade, the director of the only abortion clinic in the Magnolia State writes the Times, “We will become two separate countries.” Adds a Washington Post headline: “It will tear the country apart.”

Are these worthies — and they are worthy, in our opinion — under the impression that the Supreme Court’s discovery in the Constitution of a right to abortion somehow made America whole? Or that the seven to two thunderbolt hurled from the high bench in 1973 solved the problem? It strikes us that Roe hasn’t brought us one heartbeat closer to being a happier country — or a stronger union. On the contrary.


We wrote about this in “The Failure of Roe v. Wade,” quoting Judge James Ho, one of the riders of the 5th circuit, the appeals court that upheld Mississippi’s 2018 abortion law. “Nothing in the text or original understanding of the Constitution establishes a right to an abortion,” Judge Ho wrote. What has happened is that abortion, unlike all other health care questions in the country, has been removed “from the democratic process established by our Founders.”

So questions on abortion are decided not in the legislatures of the 50 states, nor in the Congress, but in the realm of the courts. That’s why, Judge Ho said, the arguments in abortion cases, including the one before the Supreme Court today, “draw our attention not to what the Constitution says, but to what the Supreme Court has held.” This suggests the opportunity the Mississippi case presents to the Supreme Court today.

As Judge Ho foresaw, the Mississippi abortion clinic relies on precedent, not the Constitution itself, in its argument against the state law. “In an unbroken line of decisions over the last fifty years, this Court has held that the Constitution guarantees each person the right to decide whether to continue a pre-viability pregnancy.” Abortion advocates might prefer to keep the court focused on this question of viability, set out by the Supreme Court in Roe.


The viability standard was reaffirmed in Planned Parenthood v. Casey in 1992. Yet viability has proven to be an unstable yardstick, especially in light of advances in medical science. The New York Times just featured the case of Curtis Zy-Keith Means, a 16-month-old infant born prematurely at 21 weeks of pregnancy. Moreover, why should such a technical medical question be settled by legal minds, and clog the courts of the American judiciary?

Far better, in our view, for the Supreme Court to take the opportunity offered by the Mississippi case to acknowledge that Roe settled nothing. Indeed, the Nine’s ruling backfired badly. “While the reaction was initially muted,” historian James Robenalt writes in the Washington Post, the Supreme Court’s “sweeping pronouncement” shortly “generated a vast antiabortion movement.”

Instead of stifling the nation’s legislatures, Mr. Robenalt observes, a less sweeping abortion ruling by the Supreme Court in 1973 “would have allowed states to freely establish their own abortion limits, a process that was already underway in 1972.” This would have given the democratic process the opportunity to do its work, Robenalt imagines: “maybe states would have each come up with their own solutions deemed acceptable to a majority of their residents.”


That sounds pretty good to us, though majoritarian rule can itself be dangerous. Yet Mr. Robenalt’s democratic enthusiasm met with dire predictions like that of a New York Times writer, who warns if the Supreme Court tampers with Roe’s precedent, a “political explosion over abortion could consume the Supreme Court and the country in an election year.” If by a “political explosion” the Times scribe means a spirited public debate in state legislatures and on the hustings, we’re all for it.


Drawing by Elliott Banfield, courtesy of the artist.

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