I just finished reading the introduction to the draft Supreme Court decision on the Mississippi abortion law. I highly recommend reading it before leaping into the debate on this issue.
The Centrist Independent Voter position on Abortion is in our policy position section.
I don’t agree with the conclusions presented in the introduction. I do think that the Court did have the choice of holding that Roe and Casey were settled law and that therefore the Mississippi law was unconstitutional. They could also have decided that, in line with Casey, the Mississippi law did not constitute an “undue burden” and was therefore acceptable.
How Broad are the Implications of this Decision, if Adopted?
I do agree with the author that this draft decision, if adopted, would not spell the end of other Supreme Court decisions on sexual relations, contraception, and marriage. All of those decisions addressed due process and individual liberty in situations that did not potentially affect an “unborn life.”
Where Do We Go From Here?
If this decision is adopted, the correct course of action is not packing the Court or eliminating the filibuster. Packing the Court will only lead to an ever larger Court, as each side gains enough power to add more Justices who favor their views. Breaking the filibuster means national legislation that will flip back and forth as each side gains a legislative majority and the Presidency.
The correct course of action is, first, to get busy at the the state level and pass legislation that secures some level of abortion rights. On this effort a willingness to compromise would be helpful. The second course of action is for Democrats to realize that they could have a solid 60+ majority in the Senate, if they became a true center left party and ignored the wishes of the progressive wing of the party. Once that is accomplished, we can have a national legislative compromise on the issue of abortion that securely establishes a reasonable degree of protection for abortion rights. This will probably resemble a legislative version of Roe.
A reader has suggested an argument for abortion rights that fits into Alito’s understanding of the 14th Amendment, specifically that it is deeply rooted in American tradition and necessary for the protection of “ordered liberty.”
We could save thousands of innocent lives every year by compelling blood, organ, and marrow donations without consent, but we do not do so (even in the case of corpses). We could save innocent lives by compelling vaccinations without consent, but we do not do so. We simply make consenting to vaccinations a quid pro quo for attending school or holding certain kinds of jobs. Similarly, we should not compel women to endure pregnancy and the medical procedure of giving birth without their consent.
It is noteworthy that this argument makes it moot whether the fetus is a “life” or not. We simply cannot compel people to save that “life” by undergoing a medical procedure without their consent.
I think a future court, even a strict constructionist one, could well adopt this view and ban all limitations on abortion. Recognizing the plausibility of this, the pro-life lobby should accept Roe/Casey as an acceptable compromise.
Of course, this argument does not provide a basis for public funding of abortions. That is an area where the pro-choice lobby should be willing to compromise.
I disagree with you that Roe did not need to be overturned. Its reasoning and, most of all, its rules, were a travesty – a travesty of constitutional interpretation and a usurpation of legislative power. On the other hand, I strongly agree with you about compromise at the national level and something less than fanaticism at the state level.. Practically, you could say, I join your side in the argument.
Neither of the national party proposals to outlaw or legalize abortion at the national level are acceptable, nor sensible. Future changes in power would guarantee regular changes in abortion law.
I suppose it’s too much to hope that the issue will be discussed honestly, admitting that abortion is the taking of life but acknowledging that individual liberty is a powerful, even if secondary, concern in our country, and that no prohibition (I mean that word exactly) however well-intentioned against activities the vast majority of Americans don’t agree on is either workable or in the national tradition. So compromise, in a democratic republic, is the way to go.
Having said which, the President’s comments and Senator Schumer’s run counter to any sense of comity or compromise. Our politics has become an exercise in incitement – the ads in most of the PA races are way over the top. So that, even if the issue of abortion is left to the states and even if most states pass sensible restrictions, both parties will find other issues on which to divide the country and enthuse the extremists and activists in their base.
What is needed, clearly, is reasonable political leadership. I am hopeful. It’s always darkest before the dawn.
Bill,
I agree with you that the original Roe decision was bad constitutional law. Apparently, so did Ruth Bader Ginsburg see: https://www.washingtonpost.com/history/2022/05/06/ruth-bader-ginsburg-roe-wade/.
I think that the reasoning offered above, in the first comment, would have been a sounder basis for making the decision. It would, also, have been consistent with the reasoning laid out in the introduction to Alito’s draft decision. Unfortunately, the above reasoning is only consistent with no state restrictions on abortion. Compromise is best handled through the legislative process, rather than the courts.
But that aside from that, both Kavanaugh and Gorsuch could have relied on the settled law argument to disagree with the reasoning but let Roe/Casey stand. Alito, Thomas and Barrett could then have written the leaked opinion as a dissent.
My own preference on this issue is that we end up with a legislative compromise that resembles Roe. What would be your preferred end state?