Much of what has been said about Justice Samuel Alito’s draft majority decision striking down the constitutional guarantee for abortion is simply false.
Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett did not lie during their confirmation hearings. They stated Roe (1973) and Casey (1992)—which established a constitutional right to an abortion without undue burden imposed by state regulations—are precedents. But stare decisis has never implied perpetual deference or Plessy (1896), which established separate but equal, would still be law of the land.
Had a majority upheld Roe and Casey—or healed flaws in their legal reasoning—many antiabortion folks would be screaming the Supreme Court was discredited just as pro-choice advocates are now claiming.
Alito’s reasonable assertion
Alito’s draft reasonably asserts rights guaranteed by the Constitution must be either enumerated or “deeply rooted in this Nation’s history and traditions.”
The Constitution makes no mention of abortion and prohibitions go back many centuries in common law and statutes. It is not the place of nine justices to invent new rights from penumbras, emanations or to borrow the words of Justice Scalia, the “mystical aphorisms of the fortune cookie.”
Americans remain deeply divided but are not absolutists. In 1975, a Gallup Poll reported 21% favored legal abortions, 22% opposed it, and 54% said it should be legal in some circumstances. Last year, those numbers were 32%, 19% and 48%.
Alito takes pains to assert the draft decision won’t undermine court precedents creating rights for gay marriage, contraception and interracial marriage.
When the Supreme Court acted, none of those rights, like abortion, could have been construed as enjoying a strong basis in the “Nation’s history and traditions.” But public views and state statutes change with the decades.
Whatever misgivings individual citizens may harbor for application in their personal lives, most Americans now view these nonabortion issues as matters of personal choice.
Abortion is a special case
According to the Alito draft, abortion is set separate from other rights by a “profound moral question” that makes it “fundamentally different.” Americans passionately disagree about when a fetus takes adequate form to warrant protection against harm on a par and distinct from its mother.
Overall, the Alito decision questions how much polling data should move the courts to proclaim rights that are not clearly established in the nation’s history and traditions as public attitudes change—but before state legislatures act.
In many rural and Southern states abortion could become permanently illegal. However, judging by examples inside the widely varying membership of the European Union, more likely it will be tightly regulated in many of those states.
Not a total ban
My reading is most Americans would like abortion to be available but not a convenient substitute for birth control and responsible sex. In many conservative states, limiting access to pregnancies of 15 weeks or less could be acceptable—subject to special provisions for the life of the mother, rape and fetal abnormalities.
Still many women will have to travel from those places to populous states like California, New York or Illinois.
Just as charitable institutions now help women find abortion clinics, they likely will offer logistical and financial support to assist women’s journeys. Medical abortions, currently the choice in more than half of all terminations, will continue to be available.
Stopping prescription meds from moving across state lines is terribly difficult, and abortion pills send fewer people to emergency rooms than Tylenol or Viagra.
Doctors and emergency rooms won’t directly supervise in states prohibiting sale of these drugs, but medical providers who are so disposed will find ways around restrictions to be on the ready to treat adverse side effects.
Currently, the speaker of the House, secretary of the Treasury, CEOs of General Motors
presidents of many of our most prestigious universities, voices in the media and leaders in countless other institutions are now women.
They will not disappear if the draft of the Alito decision becomes final. Women—along with men—will continue to decide policies about who gets hired, fired, admitted and rejected, and the progress of women in our society will continue.
But by safe harboring Griswold (1965) and Obergefell (2015), which overturned prohibitions on contraception and gay marriage, and other rights affirming precedents, the Alito draft decision would indicate the abortion decision is more of a special case than a reason for great celebration by conservatives and originalists.
The philosopher kings will continue to create myths—for example, that the fine in the Affordable Care Act for not subscribing to health insurance was really a tax—until we have a constitutional amendment that defines the limits of judicial supremacy.
Peter Morici is an economist and emeritus business professor at the University of Maryland, and a national columnist.
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