By Rudy Barnes, Jr.
The reaction to overturning Roe v. Wade illustrates public misconceptions of the roles of the Supreme Court, Congress and the states in defining Constitutional rights. Article I of the Constitution grants to Congress the power to make all federal laws, and Article III vests in the Supreme Court the judicial power to interpret the Constitution.
The two central issues in abortion are defining when human life begins in a pregnancy and any limits on the right to terminate a pregnancy. The Supreme Court found that neither is addressed in the Constitution, leaving it to Congress and/or the states to define those issues, much like those contentious issues in racial discrimination and gun control.
The public clamor that the Supreme Court compromised its Constitutional role in reversing Roe is misplaced. In 1954 Brown v. Board of Education rejected the 1897 racist decision of Plessy v. Ferguson that supported separate but equal laws, setting the stage for the 1964 Civil Rights Act that prohibited racial discrimination.
Public demonstrations against gun control under the Second Amendment reflect the conflict between excessive demands for freedom and providing for the common good, as do those demonstrations on abortion. Congress has demonstrated that it can pass bipartisan regulations on a divisive issue, even though it has failed to do so on abortion.
The emphasis on unlimited freedom has produced bad law, both on abortion in Roe v. Wade, and in making the Second Amendment an unlimited Constitutional right to bear any kind of arms, anywhere, and at any time, regardless of public safety concerns. It’s that kind of unlimited freedom that threatens America’s libertarian democracy with anarchy.
Ironically, the purpose of the Second Amendment was to provide for a “ well organized militia” to protect democracy from those who would subvert it; but it has produced dangerous private militias that ignore public safety and are hell-bent on subverting American democracy to the will of armed right-wing radicals.
Libertarian democracy requires balancing individual rights with providing for the common good and public safety; but Americans have become so obsessed with their rights that they are threatening democracy with anarchy. Unless Congress can limit fundamental freedoms with providing for the common good, the demand for unrestricted freedom can produce anarchy.
Public opinion polls have been cited to support affirming Roe v. Wade, but Supreme Court decisions should not be determined by public opinion. Changes to the Constitution are made by Amendment, and there are 27 Amendments to the Constitution. Changes to the law on abortion and gun regulation that do not conflict with the Constitution should be made by Congress, not the Supreme Court.
The main issue in the abortion debate is defining when human life begins. it’s somewhere between conception and birth--probably in the first trimester of a pregnancy--and it’s when the unfettered right of a woman to abort a pregnancy should end. Henry Olsen, a pro-life supporter, has acknowledged that “This is not an easy question to decide. Casey’s viability standard was an attempt to establish when a legal right to life is conferred, albeit without directly making that case. Texas’s fetal heartbeat bill, which bans abortions after a heartbeat is detected, is another. Others would draw the line in different places, with some saying the legal right to life begins at conception while others would place it well after viability. No answer is immune from serious and well-intentioned criticism. Making such difficult determinations, however, is at the heart of what democratic self-government is about. If the people collectively cannot determine who counts as a person, then their ability to reason about other, less weighty matters surely must be called into question. This debate will be painful and long.” See https://www.washingtonpost.com/opinions/2022/06/27/abortion-dobbs-roe-fetal-personhood-core-question/?utm.
Michael Gerson has said, Abortion deserves a sober debate. Instead, it gets a war of unreason. Like Olsen, Gerson has observed that “Roe has always been vulnerable because it was so poorly argued. Its medical line-drawing was fundamentally arbitrary. Its legal reasoning was uncompelling, even to many liberals. The breathtaking overreach of Roe has been cited as the cause for an enduring political backlash. And one legal mind who famously did the citing was Justice Ruth Bader Ginsburg, a strong supporter of abortion rights. In 2013, Ginsburg faulted Roe as being too sweeping. Abortion rights, she argued, would have been more deeply rooted had they been secured more gradually, in a process including state legislatures — which in the early ’70s were moving toward liberalized abortion laws. “My criticism of Roe,” she said, “is that it seemed to have stopped the momentum that was on the side of change.” Roe has been one of the first and largest sources of ideological polarization. Tens of millions of Americans believe abortion is a fundamental right. Tens of millions believe developing human life has moral worth and should have legal protection.” See https://www.washingtonpost.com/opinions/2022/06/27/roe-deserves-sober-debate-not-war-of-unreason/?utm.
Rev. Dr. Matthew Fox is one of many who have condemned the Supreme Court for overturning Roe. Fox calls it “an insult to the Supreme Court itself, to jurisprudence and to all the decent judges who created Roe v. Wade 49 years ago.” Fox characterizes the decision as an evil and a deadly sin of the (once) Supreme Court, describing it as “arrogance oozing out of it in its tone and its ridiculous arguments--that abortion is not in the Constitution.” Fox asserts that “ arrogance is what drives a once supreme court to dismiss the concern of 72% of American citizens who do not want Roe overturned.” Fox erroneously judges the Supreme Court as a legislative body rather than a judicial body. See https://progressivechristianity.org/resources/evil-and-the-deadly-sins-of-the-once-supreme-court/.
On gun regulation, see Musings on Gun Regulation as a Test of Libertarian Democracy, (6/11/22)