Alito’s abortion decision may not be so heartbreaking


Much of what has been said and shouted from Congress and on the streets about Judge Samuel A. Alito Jr.’s draft opinion striking down the constitutional right to abortion is either false or misleading.

It is simply untrue that Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett lied during the confirmation hearings.

They simply stated the obvious. Roe (1973) and Casey (1992) – who established a constitutional right to abortion without undue burden imposed by state regulations – are precedents. But stare decisis never involved perpetual deference.

Judge Alito’s decision convincingly argues that Roe was woefully flawed in his legal reasoning – much like Plessy (1896), which enshrined segregation until Brown (1954). Instead, he reasonably asserts that constitutionally guaranteed rights must be enumerated or “deeply rooted in the history and traditions of this nation.”

The Constitution makes no mention of abortion, and prohibitions date back centuries in common law and more recently in state statutes. It is not the role of nine judges – philosopher kings selected from just two liberal New England law schools – to invent rights out of shadows, fumes or the blue haze of cannabis hovering above a law school dormitory on a Saturday night.

Americans remain deeply divided but far from absolutist. In 1975, a Gallup poll reported that 21% favored legal abortions, 22% opposed them, and 54% said they should be legal under certain circumstances. Last year, these figures were 32%, 19% and 48%.

This decision will not undermine court rulings creating rights for same-sex marriage, contraception and interracial marriage. Like abortion, none of these rights when the Supreme Court acted could be interpreted as having enjoyed a firm basis in “the history and traditions of the nation”, but public opinions have changed dramatically over the years. last decades.

Whatever apprehensions individual citizens may have for an application in their personal lives, most Americans now see these matters as matters of personal choice.

The Alito decision raises the question of how much polling data should prompt courts to proclaim rights before state legislatures act. Electorates vary in their disposition by state. Representatives can be eliminated, but judges generally cannot.

In many rural and southern states, abortion will be illegal or, more likely, strictly regulated, and many women will have to travel to populated states like California, New York, or Illinois.

Charitable institutions, just as they now help women find abortion clinics, in many cases will provide travel support. Medical abortions, currently the choice in more than half of all abortions, will continue to be available – even if women have to ship the pills out of state.

Doctors and emergency rooms won’t be able to directly supervise in states that ban the sale of these drugs, but willing healthcare providers will find ways around the restrictions to be prepared to deal with unwanted side effects.

Stopping prescription drugs from crossing state lines is damn hard, and abortion pills send fewer people to the ER than Tylenol or Viagra.

Waving wire coat hangers on the steps of the Supreme Court is a great way to spark outrage among women and men who didn’t intellectually mature beyond adolescence, but the world has changed since 1973 – easy access to birth control and medical abortions make such manifestations hysterical.

Currently, the Speaker of the House, the Secretary of the Treasury, the CEOs of General Motors and Citibank, the presidents of many of our most prestigious universities, the voices in the media, and the heads of countless other institutions are now women. .

They won’t go away if the Alito draft decision becomes final. Women – along with men – will continue to decide policies about who gets hired, fired, admitted and rejected.

With access still safe and inexpensive, birth control will be more widely used in places where abortion is more difficult or impossible. While more children will be born to the poor, women’s progress will generally continue unhindered.

What will be interesting to see is how strictly the Supreme Court now limits the allocation of power to both the courts and the executive. For example, the precedent set by Chevron (1984) allows federal agencies to regulate aggressively in places where laws are vague or silent – ​​such as on affirmative action and climate change.

But by seemingly safely accommodating Griswold (1965) and Obergefell (2015), who overturned bans on contraception and same-sex marriage, Alito’s draft decision would indicate that the decision to have an abortion is more of a special case than a cause for great celebration by conservatives and originalists alike.

Philosopher kings will continue to create myths – for example, that the fine in the Affordable Care Act for not purchasing health insurance was actually a tax – until we have a constitutional amendment that defines the limits of judicial supremacy.

• Peter Morici is an economist, professor emeritus of commerce at the University of Maryland and national columnist.


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