Legislative Abdication

Today's blog is not about abortion. Really, it's not. It’s about process, the separation of powers, and cowardly abandonment of duty for political expediency.

Yes, this is about the leaked Roe v Wade reversal. As to the abortion issue itself, I have three forms of opinion: personal, political, and legal. The personal is about abortion itself, and I don't share it publicly. The latter two I discuss from the "issue" perspective, and that's at the core of today's bit.

Everything that needs to be said about the enormity of the Supreme Court leak has already been said - I won't belabor it here other than to affirm it's yet another degradation of our institutions, and a big one. The leaker deserves to be fired... SO fired, and prosecuted if possible.

The broader issue is two-pronged.

First, Roe v Wade was a junk ruling, written for political reasons rather than legal ones. It was neither the first nor the last in that regard (John Roberts' Obamacare ruling was blatantly political, just as one recent example). This alone is reason to overturn it, stare decisis notwithstanding (and I dare any stare decisis purist to tell me why Plessy v Ferguson or Korematsu should have been respected rather than overturned).

Second, we have the question of how the issue should be addressed. At the core of the argument is when "personhood" begins, but arguments about abortion have been going on for much longer than the American legal debate (abortions have been taking place for millennia). Again - I'm not offering my own opinion, I'm describing the landscape. It's a very difficult, possibly intractable dispute, involving biological, religious, autonomic, and metaphysical arguments. That there's no plain language in the Constitution that addresses the matter puts the burden for its resolution at a national level - and there’s a question even there, regarding 10th Amendment restrictions - on Congress, not the Supreme Court.

And, indeed, from what I gather of the leaked opinion, that's the argument being put forth. This is a legislative matter, not one for the Court to decide.

The Roe v Wade decision was issued in 1973. Across the ensuing 49 years, the Democrats (the party favoring the Roe rules) have had unified control of Congress and the Presidency several times, totaling 14 years. They also had a Senate supermajority (60 seats, enough to override a filibuster) twice, under Carter and under Obama.

Why have they failed to codify via legislation that which they hold so sacrosanct, across all these years? Why risk the Court tilting the other way some day and overturning Roe?

Politicians, especially those who aren't in "safe" districts, fear going on record when it comes to controversial issues. This leads to over-delegation of legislative authority to bureaucracies, which, being part of the executive branch, aren't supposed to write law... and to over-reliance on "judicial legislation." Neither the courts nor the Court are supposed to write laws either. The phrase "judicial activism," though much abused, is at its core about a judge doing a legislator's job.

Roe v Wade was judicial activism, plain and simple. It was legislating from the bench, and an end-run on the separation of powers and Congress's duty. You can be the most pro-choice person in the country and acknowledge that reality (and, indeed, even the notorious RBG had her reservations about Roe).

That the ruling codified the desires of one side of the aisle is not only irrelevant, it's contrary to how the system is supposed to work. If the Court needs to build a house of cards to reach a politically desired conclusion, it's abdicating its role as arbiter and usurping the legislators’ jobs. It's the flip side of something the Court does too often: defer to the legislature even when it's clear the law in question violates the Constitution.

All the arguments I've heard so far opposing the presumptive overturning of Roe v Wade are "I want abortion to remain legal, I don’t care how" plaints that lack either logic or understanding of the systemic realities (some are particularly silly, such as men not being permitted to have an opinion over womens’ bodies, when a man wrote Roe and six other men voted in concurrence).

Their ire is misdirected: it should be aimed at the politicians who've not written into law that which they've passionately argued for across this past half century. Many of them also ignore the fact that overturning Roe does not in itself, ban or limit abortion. It merely returns the decision to legislators, and its overturn might actually make for looser restrictions in blue states. Yes, about half the states are likely to place tighter restrictions on abortion, but the Roe reversal is not itself an abortion ban, as is being peddled, and voters have the option of voting out those legislators who impose new restrictions (a much easier task than seeking a new Court decision… or packing the Court, for that matter).

Abortion, pragmatically speaking, is a political issue. That puts it in the lap of Congress, and, barring action therefrom, in those of the various state legislatures. I've yet to hear a compelling Constitutional argument, one way or another, that's of sufficient surety to override counterarguments. So, my personal views notwithstanding, I recognize that this is one that must be resolved legislatively, or not at all. The integrity of our system demands it.

---

If you enjoy The Roots of Liberty, please subscribe (if you have already, thank you!), and  please recommend the blog to your friends! While I share it as much as I can on social media, subscribing ensures you won't miss a post.

If you really like The Roots of Liberty and want to help keep it rolling, please consider becoming a paying subscriber here at Substack, or at a lighter level as contributor to the blog via Patreon.

Thank you for your support, and please do tell your friends!

Yours in liberty,

Peter.