Many years ago when I was a young and callow fellow. Well, perhaps not that young and I would like to think that at 27 I was out of my callow stage, still… Anyway, I was in graduate school pursuing a Master’s in Political Science with a concentration in Constitutional law. This was two or three years after Roe v. Wade had been decided by the Supreme Court. My professor in this particular course was a state criminal law judge who had started life as a sheriff’s deputy then became the sheriff, then the county attorney and then a judge. From him I learned how we were setting our criminal justice system on its head by allowing motive to overtake fact in the guilt/innocence phase of a trial.
Rather than a term paper for the course the thirty students were divided in to three groups of ten with this assignment: Consider all the facts presented to the Supreme Court in the Roe v. Wade case, write our own individual brief and then each group of ten would meet and hammer out a decision and a final brief.
It was an interesting undertaking but here’s the point: all three groups came to the same decision as the current judges of the Supreme Court. That is, this case should never have been in the Supreme Court because the Constitution, as amended, never mentions or even implies that reproductive rights are a right reserved for an individual. Quite simply, the court cannot rule on something that isn’t there. In 1976 we found that the Court could not rule on the case because there was nothing in the Constitution on which to rule. We didn’t take a stand on abortion for or against. We only said there was no guarantee regarding reproductive rights in the Constitution and that because the Constitution states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
See that last, “or to the people”, this is where abortion lies. If the people want a national law on abortion then their representatives must enact one. If they want a state not to be able to restrict abortion, they must pass a law declaring such. None of this has happened, instead some states have, because it lies within their Constitution right to do so, passed laws regarding abortions. The way these laws are changed is to elect representatives who will write, pass and enact laws enabling abortions. You may, if you like, use your Constitutional right to assembly and demonstrate your opposition to those laws, but it must be in a peaceful manner. The most basic tenet of the law is that it must be dispassionate. When people allow emotion to overtake the rule of law we have ceased to be a democratic republic and have become a mob, blown this way and that by the winds of anarchy and the shouts of the loudest voices.
Either we are or we aren’t a country of laws. If you don’t like the laws then change them. There is a provided procedure for doing that. In this particular case even Ruth Bader Ginsburg put people on notice that should Roe v. Wade make its way to the Supreme Court again it would be overturned, for the original court had overstepped its authority, attempting to make law instead of ruling whether a law was or was not Constitutional in its specifics.
Abortion has not been outlawed as the mob claims, rather it has been, in certain states, curtailed. But such action can be overcome through the ballot box. It strikes me as disingenuous that proponents of abortion have not, in the forty-nine years since the initial decision, done anything to nationally institutionalize abortion. It is also troubling that if a majority of people in one state favor restricting abortion that is their right under law but many believe they must be forced to accept the will of those in other states.
Law versus emotion. The more we allow emotion to interfere in the democratic process the more we cease to be a republic. If you want to be an autocratic government that mandates abortions available on demand to all, what rights and freedoms must we lose so such a government can function? What other mandates will be made? If you want to remain a republic then you will work with the politicians to find a way to enact laws that assist in obtaining abortions. If you would rather have an autocratic government, then stamp your feet, yell loudly and make your demands heard. Just remember the old adage: be careful what you ask for, you just might get it.
My law school professors used to say “hard cases make bad law” meaning that if a decision is made because a certain result is desired like to help a deserving cause, then you have a bad precedent.