One attorney’s 30,000-foot view of abortion in America

If there were such a cause of action as journalistic malpractice, the lawsuits would be gearing up rapidly this week. Pundits and reporters are skipping right over who, what, when, where, and why analysis of an interesting development and going straight to preening displays of tribal outrage. It’s what they call "moral clarity" in progressive journalistic circles.

If you are one of the millions outraged at what the Supreme Court didn’t do in the Texas abortion law case, you might benefit from (1) reading this important three-year-old law review article on "the Writ-of-Erasure Fallacy" and (2) pondering how the four Supreme Court dissenters sputtered and groped around for just how they could stop the law from going into effect.

In short, SCOTUS is not omnipotent, and there is always a Justice (or two or five) mindful of precedents on what it cannot legitimately do.

Mind you, I’m not a fan of the Texas law. I consider it "too cute by half," a conclusion I reached on my own only to hear it later, verbatim, from David French or Sarah Isgur on the Advisory Opinons podcast. (David and Sarah are very good at making things simple, but the Texas law was their Alamo. The Texas law defies simplification.) It’s one thing to forthrightly say "I don’t think abortion is a real constitutional right and I support intelligent laws to chip away at the illegitimate dogma that it is until it’s gone." It’s another to play games by coming up with a clever (and yes, the Texas law is clever) way of muddying the waters, delaying the day of inevitable reckoning for the law, and intimidating abortionists into taking a little unplanned vacation time.

But that’s not really the aspect of abortion I wanted to write about. Every so often, I think it’s good to revisit an under-appreciated aspect of what’s wrong with our overall Supreme Court abortion jurisprudence — that of the last 50 years, actually, more than of the present.

In very short order after Roe v. Wade (wherein only two justices remembered what the court could not legitimately do), John Hart Ely of Yale Law School published an enduring critique titled The Wages of Crying Wolf. Its most quoted passage is this:

Roe v. Wade seems like a durable decision.

It is, nevertheless, a very bad decision. Not because it will perceptibly weaken the Court-it won’t; and not because it conflicts with either my idea of progress or what the evidence suggests is society’s-it doesn’t. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.

Few real legal scholars (maybe I’m risking a "No True Scotsman" fallacy, but I don’t think so) disagreed with Ely. Indeed, one of Harvard Law’s big constitutional guns, Laurence Tribe, published a series of substitute theories on how the Supreme Court really should have reasoned its way to the civilized world’s most permissive abortion regime. He needed a series because other scholars made short work of each effort in turn.

Most of those other scholars supported a permissive abortion regime, even if they couldn’t honestly endorse any known legal rationale for finding it in the constitution. They wanted it done in legislatures, and no less an authority than the late feminist icon Ruth Bader Ginsberg lamented several aspects of the Roe decision, noting that democratic processes were in fact moving state laws fairly rapidly in a permissive direction.

And the 50 states is where the abortion issue belongs. The "right" Roe gave to women was taken away, zero-sum, from control of the states, and thus from democracy.

So much for Roe. Though she could not make Texas S.B. 8 simple to understand, Sarah Isgur did remind me that it’s dubious to speak of anything like "the Roe regime;" Roe‘s continuing relevance is historic: inventing a constitutional right to abortion. The details of that right are now loosely controlled not by Harry Blackmun’s wildly implausible Roe trimester scheme, but by Planned Parenthood v. Casey, authored by Justice Kennedy, whose mystical reasoning has been widely and openly derided:

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.

Soaring rhetoric that has no limiting principle, but "not constitutional law and gives almost no sense of an obligation to try to be." Abortion history rhymes.

The failure to find a persuasive rationale is is not, of course, because Harry Blackmun, Anthony Kennedy and their colleagues are stupid. It’s because they are engaged, first, in a raw act of judicial power (Roe) and rearguard actions ever since to find a persuasive rationale for the precious bastard precedent. They overestimated Americans’ credulity as they attempted to short-circuit political processes and lay to rest a contested social issue.

As an attorney, and a respecter of the Constitution, that is what offends me about our abortion regime (as it offends, explicitly or tacitly, the squadrons of personally pro-choice legal scholars who are not having any of the extant constitutional theories for permissive abortion).

It offends me as much, I fear, as the ensuing millions of fetal deaths. Millions of deaths, especially engineered in private "medical" clinics, is an enormity that tends to leave me numb as much as outraged.

So when Casey (and Roe) finally fall, and the abortion issue is returned to the States (in most of them, to the legislature; I believe a few blue states may have enshrined a right to abortion in their state constitutions), I will feel a great sense of relief regardless of what the states then do. Anything they do will at least have a democratic legitimacy that our current system utterly lacks.

That’s how I think of the abortion issue as a lawyer (now retired), and if that marks me as a bad person, so be it.


You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

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