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Commentary: Sky not falling

by Bradley R. Gitz | May 9, 2022 at 3:45 a.m.

The forthcoming Supreme Court ruling in Dobbs v. Jackson Women's Health Organization is expected to overturn nearly 50 years of convoluted court rulings on abortion built atop the original convoluted ruling (Roe v. Wade).

Media hysteria notwithstanding, this doesn't mean the end of legal access to abortion; rather, it simply shifts the issue back to from whence it came, to the states for disposition.

It is difficult to determine the more egregious error in Roe -- the shoddy legal reasoning laid out in an effort to justify raw judicial activism or the arrogant manner with which it transferred control from the people and their elected representatives to unelected judges.

What was wrong with Roe was inadvertently highlighted by the hysterical response of Democrats to the prospect of it being overturned. In a joint statement Nancy Pelosi and Chuck Schumer charged that Samuel Alito's leaked draft "ripped up the Constitution" (in likely ignorance of the fact the word abortion isn't mentioned anywhere in the document) while MSNBC's Joe Scarborough made that which he doesn't like equivalent to "illegitimate" by claiming an overturn of Roe would amount to an "illegitimate ruling by an illegitimate court" (as if the five justices issuing the opinion had got on the court through means other than Senate confirmation). Historian Jon Meacham, nodding along with Scarborough, faulted the court for failing to follow "the popular will" (as if public opinion on abortion isn't divided and it's the business of the court to follow it even if it weren't).

Such claims reflect confusion regarding the role of the court; more specifically, the belief it exists not to properly interpret constitutional provisions and assess the constitutionality of legislative acts but to provide policy "victories" to one side or the other that would otherwise be unattainable (or not attainable to the same extent) in elected legislatures.

I have long maintained it is possible to support legal access to abortion as a public policy matter and also oppose the legal reasoning in and the consequences flowing from Roe; indeed, that such a position is actually the most intellectually defensible and honest one.

Liberal legal analysts have argued if you stretch enough here and there (through invocation of the Ninth or 14th amendments) you might be able to somehow tease out a right to abortion in the Constitution, but the burden, as with all such cases of motivated reasoning, should always rest with those doing the reasoning. That something might be vaguely possible doesn't mean it isn't an uphill struggle or that going in the other direction (downhill, by critiquing Roe) doesn't require much less in the way of effort defined as intellectual contortionism and gymnastics.

Most legal scholars inwardly know Roe was poorly reasoned, but, being supporters of a right to abortion, don't want to make much of a fuss about it. The ends justify the means and all that.

The ability to distinguish between politics and law, between legislatures and politicians on the one hand and courts and judges on the other, is thus lost in an age of hyperpartisanship and polarization, and faithful adherence to the Constitution is abandoned if such faithfulness fails to produce the desired policy victories.

The leak of the draft of Dobbs provides further evidence even some staff or clerks on the court might no longer understand its primary purpose, as if the rage and protests that leak were presumably intended to ignite should ever influence constitutional reasoning or the rulings coming from an institution purposely designed to be insulated from public passions and pressures.

In the end, a sound decision rule is that, absent a clear, overwhelming reason for a question to be decided outside the democratic process, it should remain within it.

If the voters truly wish to enshrine a genuine right to abortion in the Constitution (as opposed to one mysteriously hidden within emanations from penumbras), there exists a mechanism in the document itself for that purpose (the amendment process). And if the abortion-on-demand position of Pelosi, Schumer, et al., is truly the position the public supports, then there should be no reluctance to put it to the test at the ballot box.

All of which means we can now get down to the messy business of once again codifying law regarding abortion, of deciding, state by state, whether to permit the practice and to what extent and under what circumstances, consistent with the principle of federalism and the values of the people in those states.

Supreme Court confirmation battles are going to be a great deal less contentious, because the primary cause of the contentiousness -- the shaky constitutional status of abortion conferred by Roe, and the need to defend it at the expense of so much intellectual integrity -- will have been removed from the court's purview.

As someone with libertarian sensibilities, I will hereafter try to persuade fellow Arkansans to preserve some form of legal access to abortion, to keep it "safe, legal, and rare," in the formulation of one prominent figure from our state.

And if, as I suspect, that advocacy be for naught, I will accept that outcome as well.

Because that's the way democracy is supposed to work.

Freelance columnist Bradley R. Gitz, who lives and teaches in Batesville, Arkansas, received his Ph.D. in political science from the University of Illinois.

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