https://www.nationalreview.com/2022/06/roe-was-never-law/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Saturday%20New%202022-06-25&utm_term=NRDaily-SmartRoe Was Never Law
Pro-life campaigners celebrate outside the U.S. Supreme Court in Washington, D.C., June 24, 2022. (Olivier Douliery/AFP via Gett Images)
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By ANDREW C. MCCARTHY
June 25, 2022 6:30 AM
A controversial subject that should never have been wrested from the people in the states has now been returned to them.
There is no mincing words: The Supreme Court’s historic Dobbs ruling made Friday a great day for life.
A great day for the restoration of American constitutional law, too. And a great day for democracy in our republic. It marks a high moment for the United States Supreme Court, which has been tested as never before. It stood firm and yet restrained, acknowledging that the great public-policy decisions in our society are to be made by free, self-determining people, not unelected judges.
Barack Obama, perhaps the nation’s most solipsistic politician and ideologue, took only moments after the issuance of Justice Samuel Alito’s majority opinion to wail that the Supreme Court had relegated the most “intensely personal decision someone can make to the whims of politicians and ideologues.” If you’re keeping score, yes, this would be the same Barack Obama whose signature presidential “achievement” was radically expanded government control over the health sector, leaving more and more intensely personal decisions — decisions about actual health care, as opposed to the taking of unborn life under the guise of health care — at the whim of partisan Democrats and progressive bureaucrats.
The main point here, though, is not hypocrisy. It is hard-edged politics. The former president went directly to politics because, for abortion crusaders, there has never been anything else.
In Roe, seven willful politicians in robes usurped the power of the putatively sovereign states to regulate abortion. Unless a constitutional right was at stake, the federal judiciary had no business intruding on the internal governance of the states, particularly over matters of health and safety that are the traditional domain of the states. But the Constitution does not speak to abortion.
Justice Brett Kavanaugh’s Dobbs concurrence reminds us of Justice Antonin Scalia’s bracing but inarguable point in Casey: the “States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so.” Permit it on demand, forbid it entirely, or implement some regulatory regime between those two polar opposites. It is simply not a constitutional question. Ergo, a judicial edict on it, Roe, has always been a usurpation of authority under the guise of law, not an authoritative explication of the law.
You would know that if you had perused the briefs and weighed the argument in Dobbs. Or, indeed, if you have followed a half century of the house of cards that has been abortion jurisprudence. As Justice Alito recounts in Dobbs, the eminent liberal legal scholar John Hart Ely memorably described the salient feature of the Roe excrescence when it first appeared: The decision is not merely “bad constitutional law”; rather “it is not constitutional law and gives no sense of an obligation to try to be.”
It was never law at all. The very able lawyers who have defended Roe over the decades have eschewed arguments rooted in the Constitution. Roe has been defended as precedent: The decision commanded deference because it happened, not because it was compelling — or even coherent. It could never be justified on its own terms as linear, logical, legitimately rooted law.
Progressives have thus made a talisman of stare decisis, the doctrine of respect for precedent. They would have you believe, at least when it’s a precedent they like, that stare decisis is Latin for “don’t you dare touch this settled law.” Like the rest of the Roe bag of tricks, that’s laughable as a legal argument — we’ve all noticed that Dred Scott, Plessy v. Ferguson, Korematsu, and other precedents in the Court’s lowlight reel were reversed by the Court. More to the point, though, stare decisis has never been a mandate to uphold precedent; it is a multipart test to assess which precedents should be retained.
It’s a test that Roe was particularly ill-suited to survive.
We haven’t been under Roe for, now, 30 years. The ruling was so unstable and indefensible that, in Casey (1992), a reluctant, razor-thin majority of the Court could save it only by gutting its rickety foundation while maintaining its bottom-line holding — again, in the manner of “because I say so” diktat, not legal reasoning.
And what did Casey replace Roe with? A newfangled “undue burden” test — essentially asking: Does a regulation so burden resort to the abortion “right” as to render it illusory? Notice, however, that it is the nature of such a test to invite regulation and therefore to invite constant streams of challenges.
If we could keep abortion out of it for a moment, then, and think of this as a straight, legal stare decisis question, you had a ruling that was so galactically wrong that it had to be completely overhauled in less than 20 years. A ruling that was so unstable that it was subject to constant regulatory and legal challenge, and thus could not reasonably be relied on. And that’s just the legal landscape, before you ever get to the court of public opinion — the cultural and political arena in which Roe/Casey was never broadly accepted and was always the target of passionate dissent by much of the country.
Roe was not law and could never be defended as such. It has thus been defended by extortion, by the mob. It still is: The Court’s opinion was not even published before the “Night of Rage” planning was under way. The Left tried to prevent the ruling from issuing by an unprecedented leak of a draft opinion, patently intended to intimidate the justices — just as the Left destroyed the judicial-confirmation process over abortion with the intent of intimidating justices. In the weeks since the leak, we have had illegal protests against which a leftist administration has refused to enforce the laws (Roe having corrupted the Justice Department the same way it corrupted the law), and finally the attempted murder of Justice Kavanaugh — an utterly predictable event incited (to borrow the Left’s promiscuous use of that word) by the likes of the Senate’s Democratic Party leader.
Thanks to the courage of the justices, the intimidation campaign not only did not work, it was counterproductive. Dobbs did not hit on Friday like a bolt from the blue. It was issued almost two months after a leak that has enabled constitutional conservatives to make inroads with the public, to edify Americans who might otherwise have fallen for the Left’s shock-and-awe demagogy that, no, the Alito opinion would not actually outlaw abortion; and, no, it would not criminalize women who seek to avail themselves of the sordid procedure.
The fringe promised rage in the darkness, but the country rises this morning to find that the sky has not fallen. All that has happened is that a controversial subject that should never have been wrested from the people in the states has now been returned to them. After a long half-century, the people have been re-empowered to decide for themselves how abortion should be regulated — no longer dictated to by barbaric extremists who refuse to concede any limitation on the right to end a baby’s life, up to the moment of delivery.
Fidelity to the law has finally driven the extortionists out of the courts. Now we’ll see how their radical politics fares in the political arena. Life won big on Friday. But far from a final victory, it is more like a new beginning: the joining of the battle in the place where it should always have been fought.
