Supreme Court Decision About Abortion

We usually don’t blog about current events; such information, along with commentary and analysis, is readily available from other sources. However, I believe we have some perspectives and insights on the Dobbs v. Jackson Women’s Health (“Dobbs”) decision, overturning Roe v. Wade (“Roe”), that you are not likely to read elsewhere. This post is longer than usual, but I hope and believe you will find it worthwhile.

The court’s landmark rulings regarding the right to bear arms and abortion, twisted progressives into pretzels. They argue that the right to bear arms, explicitly enshrined in the Constitution, doesn’t mean what it plainly states, while simultaneously arguing that abortion, not mentioned in the Constitution, is a sacred right. Liberals say the January 6th protests threatened democracy at the same time they threaten the court.

Trump ran and was elected on appointing pro-life justices and his appointments were confirmed by a democratically elected senate. As smugly stated by Barack Obama, “elections have consequences“. The court in Dobbs returned abortion to the states to be democratically decided by citizens via the political process. More democracy please.

Logic for Overturning Roe is Overwhelming

Roe was wrongly decided from the git-go. The court created the right to an abortion based on “emanations from a penumbra”, i.e. out of thin air. Not only is abortion not mentioned in the US Constitution, it’s not in any of the 50 state constitutions. Abortion is not a part of English common law, was neither law nor custom at the time the Constitution was drafted, nor were there any lower court decisions affirming abortion.

In 1973 the states were working their way through the abortion minefield when the Roe decision was handed down. Roe short circuited the political process and democracy; it usurped the right of Americans to make a moral decision about abortion. Roe was supposed to settle the issue and bring peace; instead, it spawned a half century of chaos and poisoned our politics. It made Supreme Court appointments radioactive and turned the confirmation process into a circus. The court has overturned its precedents over 300 times; overturning Roe is entirely consistent with American jurisprudence.

As is often the case, Justice Antonin Scalia stated it best. He makes a powerful case that contentious moral issues such as abortion should be decided democratically by the people. The following quote is Justice Scalia at his best.

“By foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing regional differences, the Court merely prolongs and intensifies the anguish. We should get out of this area where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”

Lessons from Europe

European countries grappled with abortion through the political process. Because the issue was decided democratically via elections, abortion no longer is a highly contentious subject. Forty-seven of fifty (94%) European nations permit abortion, usually between 12 and 24 weeks, with 15 weeks (first trimester) being the norm.

European laws are not as permissive as most Americans likely believe, even though much of Europe is more liberal than the US. Many nations impose waiting periods of from three to seven days. Most (nearly all) require parental consent for minors to have an abortion. Many countries also require counseling prior to having an abortion.

What’s Next for the United States

The Dobbs decision is not about abortion per se; it’s about who gets to decide. Under our system of federalism, it is now up to the states. There already are many differences among states about abortion as well as things like guns, marriage, alcohol, etc. For most people, the changes will be slight. The vast majority of women (or should I say birthing people) live in large liberal blue states. Also, nearly all (about 90%) abortions already are within 15 weeks – the likely deadline for many states. For those few adversely affected, employers and other organizations will pick up the cost for travel.

There are Prospective Benefits from Dobbs

Progressives now will be forced to persuade voters of the rectitude of their position instead of threats, bullying and violence. This will be a difficult transition as libs are not accustomed to persuasion and they intensely distrust truth, the people and states. When the initial progressive panic subsides, not all that much will be different.

There also are prospective benefits. Over time, abortion will become much less contentious – just like everywhere else in the world. Supreme Court appointments and confirmations will be much less charged. Future generations may even come to believe that Roe versus Wade were George Washington’s options for crossing the Delaware.

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