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What would Justice Ginsburg have done?

What would Justice Ginsburg have done?

In entering into the sudden debate over abortion, we need to consider that this may just be political Kabuki Theater – a tempest in the teapot.  The debate was triggered by a working “draft” of a possible decision by the Supreme Court.  The draft was prepared back in February – making it almost three months old.

If you know anything about the Court’s operation, you know that there is an initial draft based on the general sentiment of the justices.  That draft is then reviewed, tweaked, amended and even substantially change.  It is almost certain that the leaked draft will not be the final word-for-word decision – or the decision at all.  Justices may come on board or jump ship as changes are made.

So, all the heated debate … the panic … the accusations … the tension … are all over an old document that is NOT the decision of the Court.  But, since the leaker and the press have decided to exaggerate the significance of the document as a prescient expression of a future decision – and arbitrarily declare it as real as the Steele Dossier — we need to understand what that decision is all about IF, indeed, it comes to pass in the form reflected in the draft.

The headline may seem to be a provocative question with an obvious answer.  But it does bring us to a point.  Even Ruth Bader Ginsburg — the icon of the liberal court – and the staunched defender of abortion was not convinced that Roe v. Wade was decided properly.  She often said that was the Achilles Heel of Roe v. Wade – and why she feared it could be overturned.  

Almost two years ago, the New York Times published an article under the headline, ”Why Ruth Bader Ginsburg Wasn’t All That Fond of Roe v. Wade” that delineated why she felt that the decision was founded on very weak constitutional grounds.  And that is significant because the draft – if believable – would reverse Roe v. Wade on “technical” grounds – as opposed to the morality of abortion and the rights of the unborn.

The technical process of which Ginsburg was so wary has been a major part of the opposition to the 1973 decision – that it did not cite precedent nor specific constitutional foundation.  Rather it relied on a creative interpretation of the right to privacy.  In other words, the 1973 Supreme Court simply enacted federal law.  It created a “right” that did not exist.

That is why the proponents of abortion have wanted Congress to legalize them by Congressional action even in the face of Roe v. Wade.  There was no law underpinning the Supreme Court ruling.  The proof of this fatal flaw in Roe v. Wade is evident in the call by Senate Majority Leader Chuck Schumer to hold a vote on legislation that would legalize abortion – albeit with notable restrictions.

If the leaked draft opinion is the final determination of the High Court, such a decision DOES NOT BAN ABORTIONS – even though those on the left keep fooling the public into believing it would.  It will be up to the several states to codify the abortion issue – and that is consistent with past Supreme Court decisions that recognized the legitimacy of limitations on the procedure.

In one way it was like the gun issue.  You have a right to own a gun according to the Constitution, but it can be restricted by reasonable laws.  But unlike the gun issue, abortion is NOT a specified RIGHT in the Constitution.  Its existence and limitation are more properly to be determined by state legislatures.

And while the supporters of abortion claim it as a “right,” it never has been.  It is what the legal minds call a “privilege” – just as having a job, driving a car, having heart surgery, free schooling are good things, but they are not constitutional “rights.”  (Of course, everything Democrats demand, they fraudulent claim is a “right.”)  As upsetting as it may be to those on the left, a woman does not have a “right” to an abortion.  The ability to receive an abortion legally is a matter of the law – not the Constitution.

If the court rules as the leaked document suggests, the justice will have used King Solomon’s approach of dividing the baby into halves (no pun intended).  They would be saying that abortion is not a federal constitutional “right” – but neither is it banned.  

As a pro-life person, I see overturning Roe v. Wade as a battle victory, but the war is still proceeding – in the states.  And the left is already in hyperbolic disinformation in their aftershock of a POSSIBLE Court decision.  They are still claiming it is a right.  

Leftwing historian and MSNBC contributor John Meacham has declared that a decision against Roe v. Wade would be a body blow against democracy and destroys public trust in the Courts. (See what I mean about hyperbole?)

Meacham joins many on the left who claim that such a decision would be anti-democratic because the majority of Americans support abortion in general according to polls.  But an overwhelming percentage of Americans strongly oppose abortion beyond the first trimester according to the polls.  They oppose overturning Roe v. Wade largely because they have been led to believe that would ban all abortions.

Folks like Meacham do not believe in grassroots democracy, but rather that authoritarian version in which only the national government run by an elitist class (folks like Meacham) makes the decisions.  State legislatures elected by the people is democracy in action – grassroots democracy.  

The problem with looking at polls to make constitutional decisions is that even a democracy must play by the rules – not public opinion of the moment.  Polls are not necessarily the will of the people.  Elections are.  And if there was so much support for abortions among the public, all those anti-abortion bills that the left dreads would not be possible.  Meacham should keep in mind that voters are electing the legislators and governors who are opposed to unfettered abortion-on-demand.  That is democracy at work.

As in slavery and southern segregation, there is a silenced vote.  Democrats retained power in the south by not allowing Black citizens to vote.  In the abortion debate, those most affected have no voice to claim their constitutional RIGHT to life.  The left denies that right by simply declaring that the fetus is not a human being – not an American citizen by birthright.  Is that not the same de-humanization Democrats applied to Black Americans in Dixie for 100 years after the Civil War … and Hitler applied to Jews … and Putin applies to Ukrainians?  

Maintaining Roe v. Wade, or overturning it, does not settle the most critical question.  When does the life in the womb become human and entitled to the constitutional protections the rest of us enjoy?  The central issue of abortion will not be resolved by overturning Roe v’ Wade.  The larger moral debate will continue.  While the pro-life community defines when life (protectable life) exists.  The pro-abortion community avoids the issue completely – or keeps moving the time of humanness arbitrarily.  That is the weakness in their argument – and why abortion can be defined as the taking of a developing human being that has a constitutional right to “LIFE, liberty and the pursuit of happiness.”

So, there ‘tis.

About The Author

Larry Horist

So,there‘tis… The opinions, perspectives and analyses of Larry Horist Larry 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.


  1. Perry

    Ginsberg was a liberal. When Egypt adopted a new constitution, she visited the country and told them to not draft a constitution like America’s is. No. I don’t need to be wonder what she would have done. And she also tried to give the 2000 election to gore. And was never a fan of the 2nd amendment And her liberal list is much longer

    • larry Horist

      Perry…All that may be true …. but my point was that even a liberal like her saw the weakness in the Roe v. Wade decision.

  2. Frank stetson

    See my previous post specifying how many states have trigger laws on the books and will have immediate bans the day this thing passes.

    Worse yet, it opens the door at the federal level if any given party take super majority control of both houses of Congress. At that point, law will be codified at the federal level in the direction of the ruling party.

    Where is yet, this will open the door to a number of other overturns using the same precedent. Most of these will be in the area of civil rights. Not that it will necessarily happen, but the possibility exist based on this precedent.

    Suddenly, voting becomes even more important for either side. Because I agree with Larry that ultimately the only way to really secure any sort of rights is via codification within the law. Or an amendment to the constitution which is even harder.

    Frankly, and since I am frank I can say that, with 60% of all Americans not wanting to overturn Roe V Wade, Republicans, especially Trumpublicans, can still muster a lot of voting fire power at the state level, including congressional seats. At the national level, this decision by this conservative Scotus probably seals the Republican’s fate.

    • Joe Gilbertson

      But this is not about taking a poll to overturn Roe v. Wade. Its about whether or not the issue is covered in the Constitution. If not, then we really do take a poll and elect people to who will pass laws the way we want. Most politicians don’t want to touch the issue because it does nothing but lose them votes. But it will still be their problem.

      • Frank stetson

        Yes, but people do vote and right or wrong, about 60% will not like this decision made by conservative judges and will see a politicization of the court, IMO.

    • Troy

      Not if we have fair elections. Voters are being resurrected from the grave and zombies will be voting in November

      • Ben

        Right, if YOU win, it’s fair. If YOU lose, they cheated.

        More dead Trumpblicans voted in 2020 than dead Dems….

  3. Tom

    I think Justice R.B. Ginsburg being Jewish would probably say something along the lines of what is in this NIH paper at The real question is not about when is it life, or about fetal heart beat. The real question that we are attempting to answer is “When is it murder?” The is what the whole issue of fetal heart beat, third term abortions, etc is really all about. So since we are a country that has on their dollar bill, “In God We Trust” then lets see what the Jewish Talmud (as given by God) has to say on the issue of abortion. Thanks to the NIH article I now understand why pro-abortion folks consider a pregnancy to be part of their body and therefore under their authority to decide. I also now understand why some pro-abortion people think third trimester abortions are fine. As a pro-life person I still think abortion after 41 days (Talmud) is wrong and “a grave violation of Jewish law but not murder”. The problem is that in our secular, non-Jewish / non-Christian society we have only codified murder as the taking of a breathing life that has confirmed human status. But what if the life form that has potential to be human is not breathing on its own – this is the issue, is it murder or not? The article I have referenced makes much sense and I think RBG would have thought along these lines. Read it and see what you think! There may be enough here that both sides can find some common grounds to work from.

  4. B4CE

    There’s lots of thing s that aren’t covered in the constitution, interracial marriage for instance..blacks counting as a person, homosexual marriage, birth control, to name a few. For a party that claims to be small government, taking bodily autonomy from woman is a HIGE reach. A government powerful enough to force you to give birth, is certainly powerful enough to force you to have an abortion, or be sterilized… this isn’t even a slippery slope, it’s a snow ball rolling down a mountain.

    Y’all made this a wedge issue, and a wedge issue it has become. Almost 80% of voters favor abortion rights. Y’all haven’t represented a majority of the electorate in decades, it looks as if you’ll represent less and less of American voters now.

    Honestly, I’m past worrying about my wife getting pregnant, this doesn’t really impact me, so I am glad evangelicals have given Democrats something to rally voters in Democrats favor.

    • larry Horist

      The abortion crowd knows they cannot win on abortion, itself, so they are creating these totally irrelevant hypothetical examples. Every other issue you mention involves the right of a person. There is no victim involved. You can only make such false comparisons if you totally ds regard the life of the evolving human. That is the central point. I will cover this more in an upcoming commentary, but the fetus is not in integral part of a female body. Nature has her hosting a new life created by two people. There are three stakeholders in the issue of abortion. To make it simply a woman’s choice is contrary to logic and legal history — not to mention moral issues. Oh .. I mentioned them.

  5. Frank stetson

    +1 B4; me too on aging out. I think the issue is important for all Americans on either side of the aisle. Pro lifers see this is as a giant win. The question will shortly be what’s the win for the result you’ve caused. Do you really think there will just be hundreds of thousands of happy, well-adjusted, babies Becoming our best citizens?

    The issue is the magnitude of the whole thing. First, the law. The precedent opens the door for any party that controls both houses of Congress to codify laws in this direction on a national basis. The Trmpublicans already have the playbook for this. . The precedent is also there to affect many other scotus decisions mostly dealing in the areas of civil rights. Not to say that any of this would happen, but the door is now open.

    Second, the magnitude of the whole thing in terms of number of new births is pretty outstanding. 22 states have trigger laws to ban abortions immediately when the Scotus decision comes down. Another six will probably follow shortly. If half the nation bans abortions, the number of extra children easily outpaces the number of current adoptions. The line from Jaws: “we’’re gonna need a bigger boat” will most certainly apply. It’s a lot of unwanted babies. Mostly poor. Already, 2500 people cross the Texas border each month to go to Arkansas. After this law comes down, folks will need to travel quite a bit farther through quite a few more states to be able to do what they’re doing today out of Texas. Basically, you’ll have to go to the West Coast, the Northeast, and perhaps the Midlantic States for a few months at least. Like I said, there will be thousands of unwanted babies. Republicans have done absolutely nothing to provide solutions in that regard. God’s will I guess.

    So why morally I support all life, pragmatically I am not sure we have a workable And the chance of extending it to other civil rights potentially is a very slippery slope. Anytime the Scotus overturn something that has been deemed constitutional for decades, there will be repercussions.

    • Ben

      People are seeing the truth. Women could still murder babies. No harm, no foul.

  6. Ben

    Takes two to tango big guy.

    But sure, blame women.

    • Lucian

      It’s women’s fault if they get knocked up But that excludes rape

      • Ben

        Not in many Trumpublican states whre rape and incest babies MUST come to term, by Trumpublican law.

        And blaming women is as stupid as it gets.

        • Frank stetson

          So don’t knock up your daughter

          • Frank stetson

            That is not the real frank stetson.

            Don’t you even check emails?

            Do you have ANY authentication at all or do you just protect your own names and no one elses?

          • Ben

            It’s really easy. It’s called computers. You see you just match the name with the email address before you allow the post. These are things that computers can do. You already do it, you search on your own name, and you protect it. You just don’t protect any of your other readers. I guess you think free-speech includes and personation. What swell fell as you are.

    • B4CE

      100% of unwanted pregnancies are caused by men.

      • Frank stetson

        And women not using birth control

        • Frank stetson

          Not the real frank stetson, again.

          • Larry kuhn

            Yeah right. What do you have?A split personality? You don’t know what you mean , you dumbass

  7. B4CE

    I’d also like to point out that Alito cites himself at least six times. I repeat: The man who authored the opinion to effectively end the right to abortion in the United States has cited himself more times than he cited female scholars combined.

  8. B4CE

    Mark my word, if and when
    these preachers get control of
    the [Republican] party, and
    they’re sure trying to do so,
    it’s going to be a terrible
    damn problem. Frankly, these
    people frighten me. Politics
    and governing demand
    compromise. But these
    Christians believe they are
    acting in the name of God, so
    they can’t and won’t
    compromise. I know, I’ve
    tried to deal with them.
    ~ Republican Barry Goldwater

    • Florida Phil

      The Republican Party is not the same one of which Goldwater spoke, so quite irrelevant as are many of this posters’ posts.