It was dramatic … stunning. After 50 years, the controversial decision in the case of Roe v. Wade has been overturned. The issue was not whether abortion should be legal. It did not ban abortions. It did not even establish limitations on abortion.
This commentary does not deal with the moral issues because that was not a factor in the Supreme Court’s decision. In many ways, the decision was not about abortion itself. The question was whether an abortion is a constitutional right — a technical legal question. There are all kinds of legal things we do that are not constitutional rights – including driving a car.
Since it was decided in 1973, there has been a shadow of uncertainty over the legitimacy of the decision. No stronger advocate of abortion than Justice Ruth Bader Ginsburg expressed her concern … her belief … that Roe v. Wade could be overturned on a technicality. The decision failed to meet and cite the necessary traditional constitutional grounds.
The current Supreme Court decided that Roe v. Wade was wrongly decided because it elevates abortion to a constitutional right – and that the legality of abortion really rests with the people through the legislative process. That means states could legislate abortion according to the perceived wishes of the people – manifested through those they elected to the state legislatures. A national standard could be established by Congress – by the vote of the legislators elected by the people.
In other words, the legality of abortion is still subject to the will of the people. And that creates a conundrum for the pro-abortion community. While they point to polls that suggest legal abortion is supported by more than two-thirds of the public, they seem befuddled by the fact that most state legislatures significantly restrict and even ban abortions. They seem mystified by the fact that pro-abortion legislation fails to get traction in Congress.
The reason is that their claims of public support are grossly exaggerated. In fact, most Americans do not approve of abortions after the first trimester – with some 80 percent opposing abortion in the third trimester. The gruesome near birth abortions have almost no support at all.
As I have written in previous commentaries, the abortion issue is not a vote driver. The one-issue abortion voters on both sides are a very small percentage of the vote. They sort of cancel each other out – and have little impact on the final vote count. With the overturning of Roe v. Wade, the same vocal minority are relying on abortion to be a deciding factor in the November midterm elections.
I doubt it. We may have gotten a hint of reality in the fact that the leaked decision has been out for weeks – with pro-abortion activists taking to the airwaves and the streets predicting that it will be a front-burner issue in November. And yet, the polls continue to show a big election day victory for conservative Republicans. Virtually all those state legislatures proposing and passing abortion restrictions will likely remain in the hands of the same legislators.
In the wake of the Supreme Court decision, there will be a lot of anger and protest – perhaps even violence. None of that will restore Roe v. Wade. None of that will increase support for abortion in the states – even those states that will maintain legal abortions for their residents.
The debate over abortion will continue for decades to come. Abortion is still a legal option to be determined by the democratic process – but not an inalienable right. Regardless, there is not likely to be another Roe v. Wade decision in the foreseeable future.
So, there ‘tis.