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Abortion-on-demand may be on the ropes (Part One)

Abortion-on-demand may be on the ropes (Part One)

In this first commentary, I will deal with the current situation.  In a later commentary, I will deal with why I believe the pro-abortion advocates failed to make a compelling case logically, morally, legally and constitutionally.

Prior to the hearing of arguments on Roe v. Wade, I believed there was a better than 50/50 chance that the Supreme Court would uphold the Mississippi law that moves the ban on abortions from 24 weeks to 15 weeks.  I thought there was virtually no chance that the high Court would totally reverse the 1973 decision.

Following the hearing, I am betting that the Supreme Court will uphold the Mississippi law – and that there is at least a 30 percent chance that the Court will reverse Roe v. Wade.

It is a complex case, to say the least.  It is fraught with highly emotional public reactions on both sides.  Pro-abortion activists are predicting a revolution in the streets.   Senate Majority Leaders Chuck Schumer is already using a possible overturn of Roe v. Wade as an excuse to pack the court – a threat echoed by several congressional Democrats on the racial left. 

Those who have followed my commentaries know that I am pro-life.  In one of those commentaries is laid out the case explaining why abortion is not a woman’s exclusive inalienable right.  It is officially a constitutional right only based on the Roe v. Wade decision – just as owning slaves was a constitutional right according to the early decisions by the Supreme Court.  Those Court decisions were completely reversed because they were egregiously wrong – as was the Court’s infamous Dred Scott Decision.

The issue of stare decisis (precedent) did not prevail with slavery because the Court eventually concluded that those earlier decisions were hopelessly and egregiously flawed … wrong.  That has been the basis of the current challenge.

Those defending the Mississippi law have coincidentally asked the Court to take one of two options.  One is to declare the law constitutional but leave Roe v. Wade on the books.  The second is to declare that Roe V. Wade was an improper intrusion into state rights AND the role of Congress.

This latter point is often overlooked.  The Congress – not the Supreme Court – is in the business of enacting laws.  There is no federal law banning states from banning abortions.  Another example of Congress shirking its constitutional responsibility.  We have seen that movie before.

In listening to the entire hearing – especially the questions and comments of the justices – I became increasing convinced that there are potentially six justices leaning to uphold the Mississippi law.  What surprised me was my impression that there could be five justices in favor of overturning Roe v. Wade completely.

Justice Kavanaugh gave that latter possibility the most credence when he seemed to be saying that the Court should not even be involved in the issue.  The Court should overturn Roe V. Wade and let Congress and the state legislatures deal with it.

But even if the Court just upholds the Mississippi law, the impact on abortion-on-demand will be significant.  There are approximately 28 states poised to pass similar laws setting the deadline for abortion at less than 24 weeks – possibly as little as 12 weeks.

Utah has already passed an 18-week ban.  That law is not being enforced while challenged in the federal courts.  If the Supreme Court upholds Mississippi’s law, the legal challenge in Utah will be moot – and the law will be enforced.

As is always the case, the dialogue throughout the hearing was civilized with both sides presenting their arguments without the type of insults, accusations and exaggerations that mark the more emotional public discourse.  The only comment that tiptoed to the edge of political hyperbole was when Justice Sonia Sotomayor rhetorically asked:

“Will this institution [the Supreme Court] survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

She went on to say that overturning Roe v. Wade would literally destroy the credibility of the Court.  This stems from an arrogant assumption that the case against Roe v. Wade is political and without merit in law and civic morality.

Just as a matter of process and tradition, the pro-abortion side had the advantage of two advocates and twice the time to make their case on behalf of the plaintiff, the Jackson Women’s Health Organization, Mississippi’s only abortion clinic. – one being Julie Rikelman, of the Center for Reproductive Rights, and the other being United States Solicitor General Elizabeth Prelogar, on behalf of the Biden administration.  The pro-life position was advanced by Mississippi Solicitor General Scott Stewart.  As a footnote, I did not think he was as good as he could have been.  But I still believe he carried the day.

While the Court has now heard the arguments from both sides, it will be almost one year before we the people will have their decision.  That is just how the Court works.  They will be hearing case after case and then in late Spring or early Summer, they will start issuing their decisions before they go in recess until the new session – which begins the first Monday of October.

In the meantime, there is likely to be a LOT of public and political debate – even protests.  All that hot air may be a major contributor to global warming, but it will all be Kabuki Theater – a lot of “sound and fury signifying nothing.”  The Supreme Court will advance to its decision cloistered from the passions of the people in the streets – as it should.

In Part Two of this commentary, I will address the strengths and weaknesses of the various arguments.  Stay Tuned.

So, there ‘tis.

About The Author

Larry Horist

So,there‘tis… The opinions, perspectives and analyses of Larry HoristLarry Horist is a businessman, conservative writer and political strategist with an extensive background in economics and public policy. Clients of his consulting firm have included such conservative icons as Steve Forbes and Milton Friedman. He has served as a consultant to the Nixon White House and travelled the country as a spokesman for President Reagan’s economic reforms. He has testified as an expert witness before numerous legislative bodies, including the U. S. Congress. Horist has lectured and taught courses at numerous colleges and universities, including Harvard, Northwestern, DePaul universities, Hope College and his alma mater, Knox College. He has been a guest on hundreds of public affairs talk shows, and hosted his own program, “Chicago In Sight,” on WIND radio. Horist was a one-time candidate for mayor of Chicago and served as Executive Director of the City Club of Chicago, where he led a successful two-year campaign to save the historic Chicago Theatre from the wrecking ball. An award-winning debater, his insightful and sometimes controversial commentaries appear frequently on the editorial pages of newspapers across the nation. He is praised by readers for his style, substance and sense of humor. According to one reader, Horist is the “new Charles Krauthammer.” He is actively semi-retired in Boca Raton, Florida where he devotes his time to writing. So, there ‘tis is Horist’s signature sign off.

15 Comments

  1. Dan Tyree

    If Wade v roe is overturned abortions won’t be outlawed. The states would still decide if to allow it. The only change would be that the constitution doesn’t give us women that choice. And it doesn’t.

  2. frank stetson

    “If Wade v roe is overturned abortions won’t be outlawed. The states would still decide if to allow it. The only change would be that the constitution doesn’t give us women that choice. And it doesn’t.” I agree that overturning Roe will still allow states to choose and the country will be bifurcated between those that do, and those that don’t. So it makes zero difference to the rich, and perhaps the choice between eating or flying to a neighboring state for an abortion for the poor. In abortion states, their volumes will skyrocket as the rich from baby states fly in for procedures. With all the extra money, the clinics will probably offer a better grade of service, all that extra money floating about. Sort of unintended circumstances.

    The bigger issue is, no Dan, you are wrong — the Supreme Court, in Roe, said it IS Constitutional and therefore they made the ruling. Now, if overturned, they are saying the precedent does not matter anymore. Beth Daley, from “The Conversation” notes: “n my forthcoming book, “Constitutional Precedent in Supreme Court Reasoning,” I point out that from 1789 to 2020 there were 25,544 Supreme Court opinions and judgments after oral arguments. The court has reversed its own constitutional precedents only 145 times – barely one-half of one percent.” That’s a huge thing for the court to overturn something they previously ruled as Constitutional.

    Perhaps even bigger is what America thinks. According to PEW, a right leaning statistics house, but pretty fair IMO, “About six-in-ten Americans say abortion should be legal in all or most cases.” That’s bipartisan by the by. Only 39% say illegal. Now the partisan divide has grown over the decades, but the total has remained constant.

    Good luck with the fallout from this one. Larry says “Kabuki Theater,” but I say: if BLM struck a nerve, wait until you see “bitches be mad, bitches be bad” after this one. With plenty of us real men in full support. Bring on the midterms, wouldn’t want to be a swinger or have a high independent demographic in my locale. Thank you SCOTUS for making the mid term issue so glaringly obvious.

    • David Giles

      The scotus was wrong. No constitutional right to murder babies. So if they were right, were they also right in the 1800’s when they ruled that blacks could be sold and bought? And by the way, I expect roe to remain with some changes. As for the poor women, a little advice. Don’t get knocked up.

      • Joseph S. Bruder

        A fetus is not a baby, and the Constitution is silent on abortion rights. It does, however, guarantee rights to liberty and privacy, the basis for the Roe v. Wade decision.

        Since the state will be able to override the woman’s right to privacy, then that will apply to men as well. A little advice to men: Don’t knock up women. You have no right to privacy either, the court can demand your DNA and you will be paying support for your little bastard for the next 18 years.

  3. Joseph S. Bruder

    Well, as usual Larry starts out with his own waffling to be on both sides of the issue… whether it’s 50/50 or 70/30… And he has also stated in previous abortion “debates” in these columns that on the one hand he believes every fetus to be a person, and yet there should be exceptions for rape and incest. So, the fetuses resulting from unlawful acts are not worthy of protection?

    And how would you characterize the three most recent additions to the Court? When Obama was President, McConnell held off holding confirmation hearings for 8 months, stating it was “too close to elections”. And then he ignored his own new rule when Bader-Ginsburg died within a week or two of the election. And, my God, does anyone think that Kavanaugh didn’t lie his ass off when confronted by the dozens of rape and sexual assault accusations, or that he told the truth about how his house got paid off? And Coney Barrett has nowhere near the experience or stature that a seat on SCOTUS requires (ditto Kavanaugh), and was clearly chosen for her anti-abortion “handmaiden’s tales” viewpoints. She’s a politically useful idiot.

    Sotomayor is absolutely right – if Roe v. Wade is overturned, it will be precisely because of political manuevering to pack the court with anti-abortion activists. That stench is the smell of McConnell’s disease-ridden old carcass and the Republican power-play that he led. And the ironic part is that Reagan co-opted the abortion issue to win the votes of evangelicals, but Republicans may suddenly lose the votes of the 75% of voters who support abortion rights.

    More importantly, the Supreme Court back in 1973 (made up mostly of Conservative Justices and Republican appointees) cited two primary grounds for their decision: that women have both the 14th Amendment “liberty” right to control their own bodies, and the 4th Amendment “privacy” right to keep it between themselves and their physicians.

    These grounds also make up the basis for the repeal of laws against miscegenation, laws making birth control illegal, medical privacy laws – some states have determined that they have absolute control over women’s bodies and have only been held back by the courts. Texas (always the lowest common denominator) has outlawed the morning after pill, and the various drugs that will cause miscarriage up to 15 weeks or so. Charges have been brought against women who miscarried because of accidents or illness. Some states have tried to pass abortion laws without rape, incest or health-of-the-mother exceptions. Rapists have been able to assert their rights over the woman’s rights. During Trump’s administration, his appointee in charge of refugee shelters kept a spreadsheet of women’s menstrual cycles so that he could determine pregnancy and prevent abortions.

    Repealing Roe v. Wade changes any decision based on liberty or privacy. So long, HIPAA! If they can prevent doctors from giving abortions, they can require doctors to inform the state if a pregnant patient doesn’t give birth. What’s to stop the state from preventing blacks and whites from marrying? If the government can tell you who you can or can’t marry, then gay marriage goes out the window too. Giving a bounty to citizens who inform on other citizens is right out of Hitler (or Stalin or Mao)’s authoritarian playbook.

    And what does it mean for women? They become slaves. If they get pregnant, they will be forced to give birth. If they’re raped, they are forced to give birth. Pregnant by Dad, or Grandpa, or uncle Fred, they will still be forced to give birth. They become, literally, chattel. How do you control a woman who is determined to have an abortion – lock her up, confine her to a bed for 6 or 8 months, put her in jail if she won’t cooperate. The men that rape them gain control over them – since the woman must give birth, rapists will have an excuse to stay and exert control over the women. Women become liabilities in the workplace – with limited birth control and a mandate to give birth no matter the circumstances, they are a liability to companies. What’s next – burkas? A ball and chain in the kitchen?

    You might laugh and say “Bruder is crazy, it will never get that far”. But many of the most extreme states already have contingency laws that completely outlaw abortion if Roe is struck down. Birth control is already limited in many of those states. Some of these states have forced women to give birth, or prosecuted them and/or their doctors when a fetus died. As always, Texas is one, Utah another.

    If SCOTUS does throw out or limit Roe, then I believe that Biden will step in – first, by balancing the court and adding 3 or 4 justices (not packing it so much as unpacking McConnell’s far right hot mess), and pushing Congress to pass a law making abortion legal. I could even see a push for a constitutional amendment, considering that about 75% of people believe that abortion should be legal in most cases.

    • Susan kemp

      Kavanaha and Barrett are doing great. As for packing the court, you know that sooner or later another Republican will occupy the White House with a Republican senate majority. And it’s packing all over again. Where would it end? Baby murder will be law of the land so quit worrying. The scotus will tweak the stupid law somewhat but bimbos will still be able to get knocked up and run to a baby killing so called doctor and have it murdered. The changes that I expect is no baby murder after a certain time has passed in the pregnancy. So relax. If you have a slut daughter she will still be allowed to get rid of her moral failure.

      • Joseph S. Bruder

        Truthfully, I would rather take a chance with a court of 20 than of 9.

        No babies are killed, only fetuses aborted before they are viable. Roe v Wade already put a limit of viability on abortion at two trimesters, 20-22 weeks, with exceptions for the health of the mother.

        So, sluts, huh? I’m assuming, from the name (Boy Named Sue, notwithstanding) that you’re a woman. How many times did you have sex before you were married? Even if you didn’t get pregnant and have an abortion, by your own definition you’d be a slut too. And if you’re married, and don’t have a kid for every year you’ve been married, then you probably are using birth control. BAD Susan! Texas and a dozen other states would make that illegal too.

        And, let’s say, you have 14 kids and are still fertile and need a break for a couple of years, you’re depressed and suicidal, you’re ALWAYS so fucking tired, your body is worn out, your vagina is stretched so much you could use a kitchen-sized garbage bag as a diaphram – and you get pregnant again… Time for a quickie over-the-counter pill to save yourself? Or maybe you’ve gained so much weight from the first 14 pregnancies that you didn’t know you were pregnant until 15 weeks or so, do you get a surgical abortion? Or do your husband and the state tie you to the bed until you have the baby? And then it starts all over again until you reach menopause, or kill yourself. Is that what you expect for your own life? Is that a life you could in good conscience condemn your own daughter to?

        You say, “quit worrying”… but Trump/McConnell stacked the court with extremists that believe precisely in shit like that. The flames of the whole abortion debate were fanned by Republicans for political gain. They have now created a monster that they can’t control. If you don’t speak up, it could eventually be you or your daughter in that situation.

        • Susan kemp

          Cry yourself to sleep little Hitler Roe is toast

          • Joseph S. Bruder

            Brilliant comeback, Frau Kemp. I think you are afraid to answer my post point by point. Or not smart enough to see the consequences of where the court is headed.

  4. frank stetson

    Brau,
    I can’t speak to all the allegations on the K-man, but his HSchool is in my HS-days stomping grounds, mine was between his and hers in the Bethesda-Chevy Chase-River Road area off Potomac. Parents tried for private school but “they said sit down, I stood up,” and ended up in public school. We had so many Diplomat’s kids that we sucked at football and killed at soccer. In the early 70’s. I went to those parties, I saw those rich kids, private and public, acting funky and it’s all to easy to believe in that I guarantee these acts happened at parties and what not. Evil — I really can’t say. Guilty even after a life of exemplary service — also a tough one to call. But possible it happened. Really possible, down right probable, based on my life’s experience in K-man’s time. Anecdotal, sure. But it is based on three years of being there. There were many extremely nice kids there, rich ones. Frat boy jocks — not really that much and they did not exactly rule-the-school. And there were also a lot of rich brats thinking the world was their oyster and those not in their economic class, beneath them. Used to laugh at them taking their parents caddies, backing up on some stranger’s lawn, and then pealing out throwing sod bits everywhere. I mean a new caddie? It was surreal.

    After all these years, and after his life of service, should he have been barred? IMO, it really would depend on the other allegations IMO. As in was it a pattern, is he a repeat offender or was it a one-time mistake. Not sure I would have barred him for a 17-year old’s indiscretions, given the level of the offense (groping). Not sure of the validity of the other accusations.

    But he lied and that should have been unforgiveable. And they hamstrung the FBI investigation, and that’s just politics, and that’s wrong.

    McConnell is an old hack and should go. He is the Harry Reed of the right. Dinosaur who’s time has past, he is out of step with everyone. What he’s done with SCOTUS, Federal Judges, etc. is criminal, and certainly not patriotic or American for that matter.

    • Miles collins

      And I suppose that you think that you’re patriotic

  5. Ben

    I’m pretty excited to see what proposals Republicans are going to put forth to help support all these unwanted kids born into poverty.

  6. frank stetson

    Ben, it’s not about programs, it’s about business opportunities like:

    – the new “abortion travel” industry to book lowest cost flights to most comfortable locations
    – the vigilante vacation industry offering specialized bounty trips and locations in Texas for out-of-staters looking for a little hunting
    – vigilante training schools where you can learn how to rifle trash to find used pregnancy tests
    – vigilante legal services where they just take a small fee to handle all the government bounty paperwork, specialized work to permit rapists child visitation, a new process that requires a lot of legal skill since rapist might want to see their kids, but probably don’t want to get caught for rape

    Just the tip of the iceberg for new businesses based on new Texas law. We expect dramatic revenue growth as vigilantism evolves from baby bounties to other legal infractions like traffic tickets…..

    Estimated to be a $327B industry in Texas alone, not one dollar of profit will ever go to the support of an unwanted child

  7. Joseph S. Bruder

    Larry, I think your legal analysis would not pass muster in a court. You write:

    “It [abortion] is officially a constitutional right only based on the Roe v. Wade decision – just as owning slaves was a constitutional right according to the early decisions by the Supreme Court. Those Court decisions were completely reversed because they were egregiously wrong – as was the Court’s infamous Dred Scott Decision.The issue of stare decisis (precedent) did not prevail with slavery because the Court eventually concluded that those earlier decisions were hopelessly and egregiously flawed … wrong. ”

    Abortion is not a constitutional right conferred by a court decision. The only rights guaranteed by the Constitution are those that are actually in the Constitution. Abortion was deemed legal because of the Constitutional rights to privacy and liberty. Throwing out the precedent of abortion will be in direct conflict with Constitutional rights for women.

    Slavery was also not a right, it was permitted by law and precedent. It was eventually thrown out because it conflicted with other rights enshrined in the Constitution (liberty, in particular). Laws allowing slavery were deemed unconstitutional.

    You, yourself, want to confer Constitutional rights to a fetus. A fetus under 20-22 weeks has no higher brain function, no life experiences, and can’t support itself outside the womb. If you poke a fetus with a needle, you will get an autonomous reaction but the fetus will not process it as an event will not remember it, or analyze it, or learn from it. If I cut my thumb off, it would be the approximately the same size, with the same intellect and survivability away from the host as a fetus. It would deserve no more protection than a fetus. Neither is sentient. And roughly a third of pregnancies are spontaneously aborted. Luckily, we don’t cut thumbs off that often.

  8. Frank stetson

    What happened to Larry’s Part 2? Did he “ummm” it? Would that make it Post part ummmm depression? But it’s been aborted before 15 weeks so he’s good to go.