The States Take Back Abortion
South Dakota, known for Mount Rushmore and for keeping out of the news, may be the Fort Sumter in what may be the first very real challenge to Roe v. Wade--they are going to illegalize abortion except in life-saving circumstances. The State House and Senate passed the bill, and Gov. Mike Rounds (R) indicated that he will likely sign it. Then the fireworks will begin.
Planned Parenthood will sue to block the enforcement of the law in Federal District Court for South Dakota, citing the violation of a fundamental right (that being the fundamental right to an abortion), the result (whatever it is) will be appealed to the 8th U.S. Circuit Court of Appeals, and in turn that result will be appealed to the U.S. Supreme Court. Which means that Roe lovers have much to fear.
But before the legal and political shots begin, let's pay attention to what is at stake in this battle. To be very clear, abortion will not be nationally illegalized if Roe is killed. What will happen, however, is that abortion will be returned to the states for their decision on its legality. And back in 1973, the states were wrestling with the issue, with some approving and others proscribing it to whatever degree. Roe, however, took that power away from the states in a rather surprising display of judicial overreaching. The Supreme Court declared that, based upon the law as the justices read it (or rather wanted to read it) there existed a constitutional right to abort pregnancies, based upon their previous and much more supportable holdings that there existed a Constitutional right to privacy. Abortion and family decisions being private matters, the justices reasoned, made them Constitutionally protected. A weak line of reasoning to be certain, but it didn't have to be great to get the majority vote of nine people. But besides being about the politics of abortion, pregnancy and "women's reproductive rights" it was about the rights of the states versus those of the Federal Government.
Our Republic was founded upon the notion that the states are better able to govern themselves in most things than Washington governing the nation as a whole. One size does not fit all, and few can disagree that the things approved of by the people of Rhode Island, California or Massachusetts would likely not fly in Texas, Florida or Alabama, and vice versa.
It was understood, however, that there were certain areas where the Federal government ought to hold supremacy--national defense, relations with other nations, matters that affected commerce and travel that ran between states, a national money system, and a system of interstate postage, to name just a few. In other words, most things happened locally, and those things and the people's needs related to them are better understood and handled locally by people who understood and held the values of the local community. However, things that affected the states as a whole were matters for the Federal government to handle.
And in that vein, regulation of the health care industries is a power reserved to the states. But because seven justices said so, one particular procedure receives an entirely different treatment.
Abortion is the only medical procedure which is recognized as a Constitutionally-guaranteed right. To understand how absolutely strange that is, imagine if the Supreme Court had instead ruled that tobacco chewing enjoyed those same protections. It makes about the same amount of sense. By contrast, a life-saving angioplasty is not a state-guaranteed right. But because abortion was and continues to be a procedure with a very political angle which resonated with the feminist movement of the late 1960s and early 1970s, a group of misguided justices felt that abortion "ought" to be a constitutional right, and usurped the rights of the states and the powers of the Congress to make the law the way they saw fit.
But given the new landscape of the Court, with a population that is much more originalist than before, when Planned Parenthood v. South Dakota, or whatever its name will be, reaches the Supreme Court, Roe v. Wade could be in trouble. Not because of politics, but because the law can't support Roe.
Roe is simply bad law, irrespective of the practice it sanctioned. Ignoring one's feelings about abortion, if Roe were used to guarantee a Constitutional right to ice cream eating, it would be equally nonsensical. It traced the historical development of abortion proscriptions, and more or less noting that mores were changing, made the mores of the day the law of the land. It invented a right based on spurious non-legal reasoning and considerations, but seven people's political beliefs bought it for the rest of us (and countless unborn babies for 33 years thereafter) because it seemed to resonate with the politics of the day. It would be much like the Court finding a federal constitutional right to gay marriage today (as the Supreme Court of Massachusetts did), simply because much noise is being made about it. Again, marriage is regulated by the states, not the feds. And as it should have been with abortion, it is up to the states to make those decisions for themselves and for the legislators and governors supporting them to face the voters thereafter.
And the new court, with the likes of Roberts, Scalia, Thomas and Alito may actually be able to bring Kennedy on board with them to invalidate Roe, simply as bad law, and return the debate to the states. And the result may be a very good thing.
For the first time, there will be a public debate on the morality and public acceptability of abortion. The people will have their say, their representatives will have reason to fear their ire the following November, and their governors had better have their fingers on the statewide pulse and get it right as well. The feeling that we had abortion crammed down our throats--which we did--by unelected philosophers will dissipate, and abortion will begin to become much less of an issue in elections. Granted, for a period it will be a violent political bloodbath in the statehouses, but once the laws are passed, the matter will have been settled, to the satisfaction of some, to the fury of others, but in the way that our constitutional system allows.
Abortion will also become rarer. When its not as available, people who are on the fence are more likely to stick it out. Of course, there will always be those who cross state lines to do it, those who help them, etc. But by and large, the rate of this legalized form of infanticide will fall as the laws of various states proscribe its availability. Likewise, this will allow for the real restriction of, for example, all but first term abortions (while Roe leaves room for it, they really aren't enforced). Not a great solution, but certainly less savage than a system that still permits late term and partial birth abortions.
Lastly, and probably of greatest importance to us as a republic, the value of state law and state politics will become more apparent to Americans. Washington is important, but it isn't everything. We were meant to be governed locally through laws passed by our local elected leaders. And perhaps the death of Roe may teach us--and courts--that their role as our robed masters is ending.
It appears that Mississippi is now on board with a similar measure to the South Dakota bill. This is becoming serious. And this may be an effort to, or have the unintended effect of, energizing the conservative base in an election year when we may not be able to depend on the President's popularity to advance Republican candidates.