This evening at nine o-clock, President Trump will use the bully pulpit to own prime-time cable view shares. The ratings-savvy entertainer will use the coveted time slot to announce his second Supreme Court nominee—this one to replace retiring Associate Justice Anthony Kennedy. We’ll see if he can top the ratings he got last year when he used as similar time slot to announce his nomination of Neil Gorsuch.
It is instructive that many on the left are already planning protests outside the Supreme Court building. They don’t know who the pick will be but they just KNOW they won’t like them! If protests formed AFTER the pick was announced, I would lend them more credence. But alas…that’s not the way we do things any more.
The undercurrent surrounding the pick is that a presumably conservative justice will give the court a solid 5-4 ideological tilt to the right—Justice Roberts’ curious ruling on ACA, notwithstanding. And that tilt would threaten the future of a court ruling which has been the left’s Holy Grail for more than forty years.
Contrary to popular opinion, the landmark Roe v. Wade decision did not legalize abortion nationally. Rather, it placed severe restrictions on states’ ability to regulate the procedure. The original ruling was later amended (in Planned Parenthood v. Casey: 1992), to remove the third-trimester threshold for regulation—replacing it with fetal viability. To put it mildly, this is a clumsy ruling. What is fetal viability? When does it occur? Does it occur at the same point in every pregnancy? Like laws, judicial rulings MUST be clear and concise—lest they be interpreted in any manner that the government wants.
Another aspect of Roe v. Wade is that is takes a question that should be settled legislatively and settles it judicially. In the subsequent Casey ruling, late Justice Antonin Scalia dissented:
“[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.”
So, my objections to Roe v. Wade are centered around its structure and its violation of Separation of Powers. What might surprise many of my conservative friends is that I am NOT in favor of a nationwide ban on abortions.
I’ve never been a big “abortion guy.” I know an emotional wedge issue when I see it. I also avoid playing with bumblebees and sticking my face in a moving fan. All seem to be sound decisions. Lord knows I’m not afraid of debate—but when that debate is fueled primarily by emotion, the inevitable result is exhaustion. Not resolution.
Yes, I think abortion is horrible. It is selfish. In many cases, it is cowardly. I hate it with the heat of a thousand suns. But the true measure of your love for the Constitution is if you can admit that it forbids something you support, or permits something that you oppose. I am reflexively suspicious of government actions that restrict…anything. Some restrictions end up being perfectly OK, of course. But my default setting is to view them initially with a jaundiced eye. The burden of proof must always be on the government to abundantly demonstrate how less freedom, no matter the circumstance, is a good thing.
But I will admit to a certain amount of guilty pleasure in the angst being experienced by the far-left at the potential loss of their Magnum Opus. I am not talking about the rank-and-file Democrat. I am talking about the soulless miscreants who BRAG about abortions. Who are proud of them. Who have worn this Supreme Court ruling as an obscene cloak of liberation. These are the people who, in the Magic Millisecond before a baby draws its first breath, will tell you that it is NOT a baby. It is an nonviable mass of tissue…it has no soul…it is a parasite. But once the baby draws first breath, the ardent abortion rights supporter will flip-flop faster than George H.W. Bush on new taxes. They see the baby as we all see it…a beautiful gift that confirms our humanity. But one Magic Millisecond ago they saw it as a leech, eligible for extermination under most any pretense.
The mental gymnastics one must employ to think in such a manner suggest that is a conscious effort to hide ulterior motives. This is not a good-faith thought process. These are the people whose consternation I don’t mind.
So as the inevitable doomsday Op-Eds pop up over the next several days bemoaning the cultural Armageddon on the horizon due to the uncertain future of Roe v. Wade, keep plenty of salt handy. Under the WORST case scenario for abortion supporters, the issue will be returned to the states where it will be (hopefully) handled legislatively, rather than by judicial fiat.
And yes, I will oppose universal prohibition of abortions in Virginia should the issue ever go to Richmond. I will repeat my hope that abortions are “Safe, Legal, and Damned-near unheard of.” As a libertarian, I can go no other way.