Barrett and Abortion

In the midst of the Senate consideration for presidential Supreme Court (SCOTUS) nominee Amy Barrett, the issue of abortion has once again risen to the top of the discussion.  On a Supreme Court where the Ginsburg ideological balance was 5-4 conservative at best and 4-4-1 at worst; the Barrett nomination holds the potential to significantly shift the conservative balance of the court to 6-3.  And of course, one of the prime considerations that the future holds in store for the new court balance will be the consideration of Roe v. Wade and the question of abortion.

Here is a piece I wrote on the abortion question about a year and a half ago: http://centerlineright.blogspot.com/2019/02/the-profound-issue-of-abortion.html .  This pretty much sums up my position on the subject. 

This past Wednesday at my church, our bible study group went off the rails into the realm of politics and abortion; something we very seldom ever do.  It was clear that the abortion issue stirred some very strong feelings with different people.  It was also clear that in a practical sense (not a personal, moral sense), it is a very complex issue.  I believe that the struggle our society is facing with abortion lies mainly in the area of balancing a personal morality position with a societal norm position.  My initial observation to this dilemma is one that has often been uttered…the government cannot legislate morality.  I would tack on this appendix…nor should it.

Hardly a week goes by that I don’t read in the news about someone, somewhere, somehow doing something that I personally believe is wrong and yet they skate shamelessly away without consequence.  I have no trouble with people living their lives as they choose, even when I do not approve of their actions.  That is tolerance and freedom.  As long as they stay out of my face and out of my personal life with their actions, I can live with it.  I can accept the premise that we will all stand accountable for our actions eventually and I am not qualified to judge others.

On the other hand, if a person has the conviction that a certain action is wrong at the level of legality or sin, then they will have a more difficult time accepting that objectionable behavior.  This is the crux of the abortion issue.  As I have said in my blog mentioned above, the people who occupy either of the two extreme positions on this question have no tolerance for the opposing view.  They hold to a conviction that locks them in to where they are. 

It is extremely difficult to find an objective view of Roe v. Wade.  The case was settled by the SCOTUS in January of 1973 and has withstood multiple challenges since that time.  Here is a fairly well-balanced short summary of Roe v. Wade: https://www.britannica.com/event/Roe-v-Wade . 

Based on my layman’s reading of Roe v. Wade, it’s commentary and history; I have the sense that from a strictly legal and constitutional basis, Roe v. Wade was settled on shaky legal ground.  I would further add that it appears this doubt about the Roe v. Wade’s legal pretext crosses ideological boundaries and extends from the political center to the right and the left.  Not being a lawyer or legal scholar, I find it quite a reach to find any fundamental basis for abortion or reproductive rights in the U.S. Constitution. 

Regardless of one’s position on the issue of abortion, Roe v. Wade certainly appears to be an example of the SCOTUS adopting a progressive and evolutionary attitude when they somehow pulled these constitutional rights out of this historical document.  At best, it is a creative reach; at worst it is a fabrication out of whole cloth.  To me, the larger point is the question: How has Roe v. Wade sustained itself in the face of the many challenges it has met since its inception?  I submit that the answer to that question lies not in a fundamental discussion of constitutionality; but rather in the principle of stare decisis: the doctrine or principle that precedent should determine legal decision making in a case involving similar facts. 

The revered practice of SCOTUS stare decisis combined with heavy public pressure from the pro-choice lobby and the liberal establishment (including the mainstream media) has enabled Roe v. Wade to avoid or withstand legal challenges up to this point in history and remain the so-called law of the land.  Both of these realities that have buttressed Roe v. Wade for so long are now coming under increased scrutiny.

The boldness of the pro-choice factions, especially in the areas of late-term and partial-birth abortions, has significantly weakened their public opinion standings.  Most polls now show that a majority of Americans support reasonable (now there is a pregnant word) restrictions on abortion after the first trimester.  This shift could well translate into a much more accepting attitude by the public towards state-mandated abortion regulations.  As for the area of stare decisis, several members of the current SCOTUS have publicly supported the notion that they will not be bound to a prior SCOTUS decision that they deem to be improperly founded.  It is not at all unreasonable to consider that the time may soon be ripe for the SCOTUS to actually overturn the Roe v. Wade decision; especially if Barrett is confirmed and the ideological shift is manifested.

It would take a tremendous amount of courage and fortitude for the SCOTUS to overturn Roe v. Wade.  The fact that it enjoys widespread and rabid support coupled with its decades-long life span has created an environment where many people equate it not with its origins in the SCOTUS, but with Moses and the Ten Commandments.  However, a lifetime appointment tends to stiffen one’s spine and creates independence that is rare.  At the end of the day, it will all boil down to a numbers game.  Are there five SCOTUS votes willing to make this decision?

If Barrett is confirmed, the shift goes to 6-3 conservative.  If Donald Trump is re-elected, there is a good chance that Stephen Breyer, the sitting 82-year-old liberal SCOTUS Justice appointed by Bill Clinton, might retire during the next four years and could be replaced by a conservative Justice.  That would reset the ideological balance at 7-2 and would certainly create fertile ground for a Roe v. Wade reconsideration.

Don’t miss the next post….Just Google centerlineright

The United States of America was designed by our founding fathers as a nation of independence, liberty, and freedoms.  One of those freedoms was freedom of religion.  Just as religious folk cannot infringe on the rights and privileges of non-religious folk; non-religious folk should not be allowed to force-feed objectionable moral principles to religious folk.  There must be a balance between the moral/ethical beliefs of one view and the moral/ethical beliefs of an opposing view.  That balance must be reasonable when deciding what rises to the level of law and what may exist at the level of tolerance.  Both sides of emotional issues must learn to accept tolerance without demanding acceptance or endorsement.

The constitution’s response to this tension was illustrated in large part by federalist principles.   Our country is a nation of fifty independent state governments and one over-arching federal government.  To the largest extent possible, those state governments should deal with the restrictions on the personal freedoms and liberties of their citizenry.  The closer to home the elected official is, the more responsive they will be to their electors.  The plain and simple fact is that State representatives are more in touch with their neighbors than are WDC representatives.

If Roe v. Wade is overturned, then the authority to regulate abortion practices will return to the state legislatures.  This would be a return to the way things were before Roe v. Wade was decided in 1973.  It does not mean that abortion will be illegal.  It will not be a pathway to back alley butchery for unwanted pregnancies.  Those state legislatures will more accurately reflect the morals and attitudes of their constituents than Congress or the SCOTUS.  Kentucky abortion laws will be far different than California abortion laws.  While this might lead to some interstate confusion and legal manipulation; it will nonetheless be far closer to the framers’ vision of America than what we have today. 

The stage is thus set for the next evolutionary step in the regulation of abortion in America.  Assuming Barrett’s successful SCOTUS seating, the SCOTUS will await the next case that offers the potential for Roe v. Wade reconsideration.  When that moment arrives, the gnashing of teeth and rending of clothing will be far greater than ever before; yes, even more so than the Kavanaugh hearings.  After close to fifty years of Roe v. Wade, it would be a socially-seismic shift to cede abortion regulation authority without the intercession of the SCOTUS back to the state legislatures.  But perhaps there will be no shift at all.  Perhaps the time is not yet ripe for the SCOTUS to dare public opinion or test the limits of stare decisis.  It may choose to affirm Roe v. Wade or perhaps kick the can down the road for another day.  If so, that day may be determined by our presidential choice later this year.

I will close out this blog with a tribute to one of my favorite classic rock bands.  Formed in Chicago around 1972 (about the time of the Roe v. Wade case), Styx blended some great rock guitar licks with a finer touch of acoustics and synthesized mellow tones.  They were fully into the category of power ballads.  If you want to hear some good music from the late 70’s forward that has withstood the test of time, pick up their Greatest Hits Volume I CD; an outstanding and eclectic collection of songs.  Here is a tune from that CD which is especially applicable to the times in which we live: https://www.youtube.com/watch?v=EhJZ58lUqeE .  That is Dennis DeYoung on those beautifully clear vocals and James Young on that screaming guitar.  Enjoy.