So, Roe is gone. It is official. Dobbs v. Jackson is law of the land. Net-net, this is a good thing for America. The Constitution does not mandate States permit abortion. The Supreme Court returned that question – as pre-1973 – to the States. People can decide to support, or not to support, abortion. People who disagree can freely travel or can move. This is as it should be. So, what comes next?
In sum, Dobbs corrected a longstanding legal or jurisprudential error. The Roe case, while precedent for 50 years, was gradually eroded, like a rockfall in a river, by the strong current of constitutional law.
In a series of cases, the reach of Roe – breadth of the imputed abortion right – was slowly narrowed. Cases included Webster (1989), Casey (1991), Steinberg (2000), Gonzales (2003), Box (2016), and Dobbs (2021). Dobbs just did what many thought should have occurred far earlier. It ended the legal fiction.
In America, justices of the Supreme Court are empowered only to interpret law. They are not empowered to import or invoke political or personal bias, indulge their imaginations, invent wished-for rights, or act on a secret desire to legislate. Those are all out. Still, sometimes, they do – and did in Roe.
Looking back, Roe represents the high point of Warren Court activism, a willingness to push limits, to assert questionable jurisdiction in accord with political winds of the time. The 1960’s and 1970’s did see some rock-solid, well-grounded opinions. Many have stood time’s test. But Roe was never destined be one of those – even if liberals hoped it would. Constitutional lawyers have long known it was weak.
Roe was written by Blackmun, who himself oscillated on where the nebulous new right was, stretching both the 4th and 14th Amendments. He was joined by liberals Brennan, Marshall, Douglas, Burger, Stewart, and Powell. Opposed were future Chief Justice Rehnquist, and Justice White.
Interestingly, Rehnquist’s thoughtful dissent foreshadowed Dobbs – even 50 years. The future Chief wrote: “The Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that [historical] standard,” and “the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.” In the end, Blackmun “eschews the history of the Fourteenth Amendment…”
While many political liberals are unhappy with the Dobbs case, which restores pre-existing State’s rights, correcting Blackmun’s faulty logic, Dobbs is on sound footing historically, and should stand time’s test.
So, what is the political violence about? Why are President Biden and Democrats in Congress suddenly losing their minds, apoplectic, determined to undermine, delegitimize, even pack the Supreme Court?
Why is the Attorney General – arguably an impeachable offense – refusing to enforce federal laws that protect the lives of justices, thus endangering five justices’ lives and the lives of their families?
The answer has little to do with law, much to do with the Democratic Party’s turn left, quiet embrace of violence. We first saw Democrats encouraging anti-police violence in 2020. Now, the strategy reappears.
First, a narrative is pushed by politicians. Abortion advocates and the industry argue the right cannot be questioned, thus any Court reviewing Roe is illegitimate. That, of course, is nonsense. All major decisions – from our nation’s beginning – are subject to judicial review, and periodic re-review.
Second, Democrats imply non-violent norms can be suspended if they disfavor the left. Biden, Schumer, Pelosi, Clinton, others have – in recent months – implied or seeded the idea (and never opposed it) that violence would be justified if Roe were reversed. Again, that is false, flies in the face of American State, Federal, and Constitutional law. Still, they pushed the notion that violence is okay.
Now, we come to this precarious moment. Roe has been replaced by Dobbs, and we see violence fanned by Democrats around the country. This is wrong, will boomerang, is destabilizing, utterly irresponsible.
Putting members of the independent judiciary – at any level – in fear is morally wrong and illegal, even if the AG does not enforce law. Second, Americans do not want more fear, violence, or instability – they had enough of that in 2020, compounded by defund police rhetoric and COVID restrictions. Third, violence begets violence, and that is not productive. Finally, the midterms are approaching.
Bottom line: Roe is history, Dobbs is law. States, not federal actors, will decide the future. Abortion and restrictions on abortion are matters decided by government closest to the people, the States. Democrats will push violence, try to pack the Court, continue to harangue.
Most Americans will abide rule of law, respect Dobbs, history, and order. New services spring up to help young mothers parent, and expectations about who we are will begin to change. Millions of children will be born who might not have been, and we will welcome them. Net-net, that is good for America.
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