Megan McArdle in the pages of WaPo argued a couple of days ago that Roe v Wade should never have been even on the SCOTUS docket:
But by the 1970s, the court was, one suspects, a little drunk on the moral and legal triumph of those earlier cases. The justices were now going well beyond the words in the law books and into the unwritten law of what used to be called “enlightened opinion.” In 1972, they abolished the death penalty in all 50 states, even though the Constitution clearly contemplates government-administered capital punishment.
The following year, the justices gave the country a new right to abortion. The right is nowhere mentioned in the Constitution, but had apparently been lurking there undetected for the better part of two centuries before the justices finally coaxed it into the open. From this era dates the solemn invocations of “settled law” issued by “the highest court in the land.” …
The benefit of going the judicial route is that you can occasionally achieve outcomes you could never obtain through legislatures; that is how America, a center-right nation, got one of the most liberal abortion regimes in the world. The problem with going the judicial route is that it short-circuits public debate and forces the opposition to take radical action — like, say, a decades-long project to fill the courts with right-leaning judges — to amend that “settled law.”
And I thought, Well, maybe. She ascribes directly to Roe v Wade the attempted packing of various courts with conservatives, the absolutist decisions on gun rights, and much other conservative legal activity to that decision. However, it seems to me that the conservative side of the political spectrum simply was waiting for something to seize on in order to build a coherent voting bloc, and abortion was simply one of the many subjects. Absolutist positions on when something is human, on gun rights, on anything that could be subjected to a religionist analysis. Roe v Wade was a public search for justice within a system that didn’t really acknowledge the realities of women and child-bearing, and McArdle’s arguments didn’t really convince me.
Then, also in WaPo, Professor Carliss Chatman indulged in the time honored and important exercise of pushing an initial assertion to its logical – and absurd – consequences. This particular conclusion caught my eye:
When states define natural personhood with the goal of overturning Roe v. Wade, they are inadvertently creating a system with two-tiered fetal citizenship. This is because Roe and Planned Parenthood v. Casey create a federal floor for access to the right to choose — a rule that some ability to abort a fetus exists in the United States. If these cases are overturned, that eliminates only the federal right to abortion access. Overturning Roe would not prohibit a state from continuing to allow access. In a post-Roe world, in states like New York that ensure the right to choose through their constitutions and statutes, citizenship will begin at birth. In states that move the line to define life as beginning as early as conception, personhood and citizenship will begin as soon as a woman knows she is pregnant.
Trying to define citizenship and personhood based on the laws of each state creates some far-fetched and even ridiculous scenarios. If we follow that logic, we’ll tie our Constitution into a knot no court can untangle.
And, although Professor Chatman doesn’t mention it, this becomes a complete refutation of McArdle’s contentions, because without Roe v Wade we run the exact risk Chatman describes. This is not a local issue, as Federal benefits generally apply nation-wide (with some exceptions). Or, as Chatman succinctly puts it, we’ll tie our Constitution into a knot no court can untangle.
And it’s why, if & when SCOTUS gets the test case the anti-Roe supporters so generally want, it should be rejected. Not 5-4, with Roberts providing the surprise vote for rejection. It should be 9-0, with Thomas scolding the anti-Roe supporters for endangering the nation.
And read Chatman’s article. It’s fun.
