It’s the End of the World as We Know It

It’s the End of the World as We Know It

Washington, D.C. – The draft of Justice Samuel Alito’s opinion in a Mississippi case is not mentioned in biblical prophecy. Given the way people have reacted to it, you’d think it not only was but that it was a sign the end of the world was at hand.

It isn’t, so you can all breathe easier. What it does foretell is the end of a status quo in place since the Burger Court issued the Roe decision in 1973, effectively making abortion legal through the ninth month of pregnancy throughout the United States.

Supporters and opponents of what Alito had to say in his draft have it wrong when they say the end of Roe means the end of legal abortion. It just means the end of federal oversight and control, through the judiciary, of one of the most contentious arguments ever to occupy space in the American public square.

To be fair, there are very few Americans who are “pro-abortion.” There are a few who might give you pause, like the woman photographed at a recent rally holding a sign advertising she’d undergone the procedure more than a dozen times but, in the main, most voters who support abortion rights probably hold an opinion close to the one former President Bill Clinton at one time claimed to hold: “They should be safe, legal, and rare.”

That, one thinks, is where things have headed since 1973. Nearly a half-dozen decisions handed down by the Court since its original have narrowed the scope of its original finding. States have been given back powers they had before Roe, allowing them, for example, to set a maximum number of weeks within which an abortion can be performed during a normal pregnancy. Bans on certain procedures, such as the technique known as partial-birth abortion, have also been upheld as constitutional.

In other words, since Roe, the pendulum has been swinging the other way. If the decision is overturned in the Mississippi case, it simply means the end of federal oversight of the issue through the courts. Or it ought, at any rate, by Alito’s reasoning, which should be considered sound no matter which side of the issue you’re on.

The men who made America, who designed the plan under which it would be governed, had a vast array of experience to draw from. They looked not just to the Greeks and the Romans for ideas about democracy and how to create a republican form of government but to the failure of the Articles of Confederation and their own experience as monarchical subjects.

What they gave us was a sure guarantor of personal liberty on the issues that mattered most, including but not limited to “life, liberty, and the pursuit of happiness.” The inclusion of the Bill of Rights was, as much of the document to which it was appended, a compromise intended to satisfy the concerns of those who believed certain liberties needed to be protected by being placed clearly outside the limits of government intervention.

To be honest, that hasn’t worked out so well. The first 10 Amendments spelled out specific freedoms and limitations on the powers of the federal government that all – especially the ones concerning the limits on federal purview – have been abridged to some degree in the almost 250 years since ratification. The Founders intended the states to have far more ability to set their own course on matters of extreme significance than they do now.

Looking back, it’s clear the Founders did not trust the people, at least not completely. If they were trustworthy, then no government would be necessary to paraphrase Madison. The men who wrote the feared the grant of the franchise, limited though it was, could, without limits, lead to the kind of mob tyranny the French would come to know all too well in just a few years in the aftermath of King Louis XVI’s demise.

That was, however, only one thing they feared. They had not forgotten what happened under George III, who taxed and oppressed and deprived them of trial by jury in many cases and was, as Jefferson put it in the Declaration, a tyrant. Safeguards were likewise needed to prevent a situation like that from ever occurring again.

What we got was a balanced approach, held in place by various tensions running up and down and across the federal system. The national government would have specific, enumerated powers. The states would have more latitude and would retain powers not expressly withheld from them. Change, dramatic change, would come slowly and not until some kind of consensus had been formed, if it came at all.

The violation of this principle is Roe’s greatest weakness. The nine justices usurped the power of the legislatures of the fifty states elected by the people of those states in favor of their own. Despite it having led to millions of abortions a year, this is the original decision’s true failing.

The current debate, as influenced by Alito’s draft, is not just about abortion but about who should make the rules. That’s a conversation a long time in the making and should be a concern for both abortion-rights opponents and supporters.

Having to wage political war across the country is easy when compared to the challenge of fighting it out in 50 different state capitals and the District of Columbia. If, as the Alito draft suggests, the right to determine the legality of the procedure and, if legal, under what limitations is turned back to the states, it is almost assured that some will choose to outlaw it entirely.

Others shall certainly opt for liberalizing the laws already on their books, going beyond the current limits as defined by the high court in its ruling in Casey. We may end up with states where no procedures can be legally performed, some in which taxpayer-funded abortions are available up until the moment a child is considered to have been delivered, and the rest somewhere in the middle.

This may seem to be a conundrum: No abortions in some places, extreme abortion policy in others. Perhaps that’s the way it is supposed to be, at least in a federal system. We’ve suffered for too long under a judicial tyranny when justices on the have had the last word on issues the public should decide.

It is better for everyone if states have the power to set policy on sensitive, difficult issues where the Constitution does not proscribe them from doing so. Democracy, as we call it, is about outcomes, not just elections. To the extent Alito’s original draft causes a conversation on that subject, the leaker who let it out into public view has done us all a favor.

The opinions expressed in this article are those of the author and do not necessarily reflect the positions of American Liberty News.

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