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Rough times ahead
A leaked draft of a Supreme Court opinion suggests that the court is on the verge of overturning Roe v Wade. In light of recent appointments to the court, this comes as no surprise. But it will still be a shock to the American system. It will turn the clock back half a century to a time before abortion was ruled to be a constitutional right. It will take abortion out of the hands of the judges and return it the realm of elective politics.
A decision repudiating Roe would rank among the most famous or notorious decisions in American constitutional history, depending on one's agreement or disagreement with the outcome. One has to go back to the 1954 Brown v Board to find a comparably stark reversal of accepted law. And in fact the Brown decision only partially overruled the 1896 verdict in Plessy v Ferguson. The latter allowed segregation under the formula of "separate but equal"; the former outlawed segregation in public education on grounds that separate educational facilities were inherently unequal. Segregation in other activities, including private business, remained lawful.
Yet the Brown verdict encouraged the opponents of segregation to take their case to Congress. They did, and Congress in 1964 passed a landmark civil rights act that leveraged the legislature's constitutional authority over interstate commerce into a ban on segregation in most areas of public life.
Doubtless something like this will follow an overturning of Roe, Already Democrats are discussing restoring Roe by legislative means, and campaigning in the upcoming midterm elections on that platform. Restoration seems unlikely, if only because Republicans in the Senate would filibuster any bill to that effect.
The Republicans, if and when they regain control of Congress, can be expected to try to outlaw abortion nationwide. In that case the Democrats would rely on the filibuster to block such a law.
But the filibuster has gotten weaker by the decade, and as Lyndon Johnson demonstrated in the effort to pass the 1964 civil rights law, filibusters can be overcome.
An argument can be made that on such a divisive issue as abortion, the political arena, as opposed to the judiciary, is exactly where the final decision should lie. Better the electorate as a whole, rather than a handful of unelected judges, make the decision the nation will have to live by.
Philosophically this might be true. But politically it augurs a rocky road ahead for the country. In the 1850s America was as split over slavery as the country is today over abortion. Claims of right were made on both sides, with abolitionists asserting the right of slaves to be free and slavery's apologists defending the property right of slave owners in their chattel. The Supreme Court under Roger Taney tried to settle the matter in the 1857 Dred Scott case, in which it effectively sided with the slave holders.
Abolitionists and even moderate opponents of slavery like Abraham Lincoln were outraged and alarmed. John Brown resorted to violence against the evil institution. Within four years of the Dred Scott decision, the nation was at civil war.
One certainly hopes that a reversal of Roe not lead to a similar consequence. Yet the echoes are disquieting. Opinions on abortion today are as deep emotionally and sincere morally as opinions on slavery were a century and a half ago. Each side today considers itself the heirs of the abolitionists, with opponents of abortion citing the rights of the unborn, and defenders of abortion the rights of women.
Until the Dred Scott decision, control over slavery was assumed to rest with the individual states. That decision did not deal directly with state authority over slavery, rather preventing Congress from barring slavery from federal territories. But the reading of the Constitution on which the decision was based suggested to many, including Lincoln, that the Taney court's next step would be to prevent states from prohibiting slavery.
A reversal of Roe will still allow states to legislate for or against abortion. Several conservative states have already legislated against, anticipating a Supreme Court decision in their favor. A federal law against abortion, the logical next step, would take the matter out of the hands of the states, forcing a one-size-fits-all policy on the nation.
Conversely, liberals conceivably could pass a liberal federal law, similarly taking the matter out of the hands of states.
Either way, a great many Americans are going to feel morally compromised, politically violated or both.
A principal reason Supreme Court nominations have become so bitterly contested in recent decades is that the future of abortion has been seen to hinge on them. Should this prove to be true—should the judiciary remand abortion to the court of elective politics—every campaign might reproduce that bitterness.