Much of what has been said about Judge Samuel Alito draft majority decision invalidating the constitutional guarantee of abortion is simply wrong.
Had a majority upheld Roe and Casey — or corrected flaws in their legal reasoning — many anti-abortionists would cry out that the Supreme Court has been discredited, just as choice advocates now claim.
Alito’s reasonable assertion
Alito’s draft reasonably asserts that constitutionally guaranteed rights must either 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 statute. It is not up to nine judges to invent new rights from shadows, emanations or to borrow the words of Judge Scalia, the “the mystical aphorisms of the fortune cookie.”
Americans remain deeply divided but are not absolutists. In 1975, a Gallup poll reported 21% supported legal abortion, 22% opposed it, and 54% said it should be legal under certain circumstances. Last year, these figures were 32%, 19% and 48%.
Alito goes to great lengths to assert that the draft ruling will not undermine legal precedents creating rights for same-sex marriage, contraception and interracial marriage.
When the Supreme Court acted, none of these rights, like abortion, could have been interpreted as having a firm basis in “the history and traditions of the nation.” But public opinion and state status change over the decades.
Whatever apprehensions individual citizens may have for an application in their personal lives, most Americans now view these non-abortion issues as matters of personal choice.
Abortion is a special case
According to Alito’s project, abortion is separated from other rights by a “deep moral question” that makes it “fundamentally different”. Americans passionately disagree about when a fetus takes on adequate form to warrant protection from harm equal and separate to that of its mother.
Overall, the Alito decision calls into question the amount of polling data that should prompt 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 Abortion in rural and southern states could become permanently illegal. However, judging by examples within the very diverse members of the European Union, it is more likely that it will be tightly regulated in many of these states.
Not a total ban
My reading is that most Americans would like abortion to be available, but not a practical substitute for birth control and responsible sex. In many conservative states, limiting access to pregnancies of 15 weeks or less might be acceptable, subject to special provisions for maternal life, rape, and fetal abnormalities.
Yet many women will have to travel from these places to populated states like California, New York, or Illinois.
Just as charities now help women find abortion clinics, they will likely offer logistical and financial support to make it easier for women to travel. Medical Abortions, currently the choice in more than half of all layoffswill continue to be available.
Stopping prescription drugs from crossing state lines is terribly difficult, and abortion pills send fewer people to the ER than Tylenol or Viagra.
Doctors and emergency rooms won’t directly supervise in states that ban the sale of these drugs, but willing healthcare providers will find ways to work around the restrictions to be prepared to deal with unwanted side effects.
Currently the Speaker of the House, Secretary of the Treasury, CEOs of General Motors GM,
and Citibank C,
the presidents of many of our most prestigious universities, the voices in the media and the leaders 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 is hired, fired, admitted and rejected, and the advancement of women in our society will continue.
But by safely accommodating Griswold (1965) and Obergefell (2015), who overturned bans on contraception and same-sex marriage, and other rights affirming precedents, the Alito draft decision would indicate that the abortion decision is more of a special case than a reason for great celebration by conservatives and originalists.
Philosopher kings will continue to create myths – for example, that the the fine in the Affordable Care Act for not buying 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 professor emeritus of business at the University of Maryland, and a national columnist.
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