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Commentary: Politics and law

by Bradley R. Gitz | May 16, 2022 at 3:45 a.m.

These are tough times for those of us who support some kind of legal access to abortion.

Not because the Supreme Court is poised to overturn Roe v. Wade, but because of the silly arguments and noxious tactics coming from so many abortion supporters in response to it.

If there is such a thing as embarrassment by association, lots of pro-choice folks should be feeling lots of it.

The shrillness of the response to Dobbs v. Jackson Women's Health Organization tells us more about Roe than it does Dobbs; more precisely, that it has always been more about politics than law and constitutionality.

Just as few who applauded Roe made any effort over time to defend the reasoning behind it (or respond to the plentiful criticism thereof), few who are now denouncing Dobbs appear to have even read the arguments presented in Samuel Alito's lengthy draft opinion, or appear interested in providing a persuasive legal critique of them.

That failure tells us at least three things -- that many supporters of Roe aren't capable of understanding legal reasoning (or simply don't care about it); that those who are capable and still support Roe know that they don't have a legal leg to stand on regarding either case; and that lots of people don't know the difference between politics and public policy on the one hand and law and constitutionality on the other and therefore don't recognize that they are separate realms, with a preferably large as possible chasm between them.

Regarding the last point, one wonders if decades of educational neglect have eroded the public's understanding of the very concept of constitutionality, including the reasons we have such parchment barriers to tyranny in the first place.

The infrequency with which people criticize Supreme Court rulings that produce results of which they approve tells us that it is now only the results that matter, not whether the reasoning buttressing them represents reasonable interpretation of constitutional provisions.

Few are willing to accept that some of what they want isn't constitutional and some of what they oppose is; that the Constitution as actually written might not contain the rights they demand and grant ones they wish it didn't. To the contrary, the assumption seems to be that both the spirit and letter of the document correspond precisely with their own political preferences and demands, no more, no less, however illogical and improbable, given the nature of constitutions, that might be.

We thus get an almost-textbook case of what psychologists call "projection" when critics of Dobbs claim that the court is now proving that it is a "political institution" by overturning what might be the most politically motivated ruling in the court's history.

A far more accurate interpretation would be that the court has now properly interpreted the Constitution (the law) on abortion in Dobbs in order to correct a decision that had been improperly decided in Roe.

Along these lines, it was not difficult to conclude that seven members of the court desperately wanted to create a right to abortion 49 years ago and searched far and wide within the Constitution to find one, and that they were so determined that they went full speed ahead even when they couldn't.

The five justices in the majority in Dobbs may have wanted, out of personal inclination, to end abortion as a constitutional right as much as the seven justices in the majority in Roe wanted to establish it, but the difference is they didn't have to bend and distort the Constitution and read things into it to do so.

Legitimate (and thus enduring) court rulings can flow only from law, never from politics, and Roe was always more about what Robert Bork called "the temptation of politics" than law.

They may not realize it in their utter obliviousness, but those protesting outside the homes of Supreme Court justices perfectly encapsulate all that was wrong with Roe -- you use protest in an effort to influence the behavior of legislators, not the jurisprudence of judges. The former are meant to be subject to public pressure, the latter immune to it.

We are thus left with a rather simple, but apparently insufficiently obvious conclusion -- that not every controversial issue must be decided by courts.

Just as a convincing argument can, for instance, be made that the Constitution neither forbids nor compels capital punishment, an equally convincing claim can be made that the Constitution neither contains a right to nor prohibits abortion, thereby, as with capital punishment, and in lieu of act of Congress or constitutional amendment, leaving its regulation up to the states, the key conclusion of the majority in Dobbs.

The central question, the only question, is not political or moral, but purely legal: Was Roe properly decided, in the sense of persuasively identifying a constitutional right to abortion? If the answer is no, it must be overturned, with no other considerations applying, and regardless of its status as precedent.

It is thus incumbent on those opposing Dobbs (and defending Roe) to do so with legal, not political, arguments, with plausible constitutional interpretation rather than fearmongering, threats, and slogans.

That they largely refuse to do so tells us who has the better legal argument.

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

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