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.