Thursday, May 19, 2022

                             ABORTION:  PROTESTS, CHOICES, AND COMPROMISE                                

The decades old abortion controversy is irreconcilable. It is, and has been, a battle between an ideology, feminism, and religion, conservative Christianity, thus leaving no room for compromise between the "true believers" on both sides. Statistics show the importance of the symbolic status to the debate. Reliable sources report that between  2015 and 2019 an average of 890 thousand abortions were performed annually in the U.S.  That computes to only  @ 1.2% of the 74.6 million females according to census data, between the ages of 15-49; a large absolute number but a low participation rate considering the millions of advocates on both sides who are concerned about others than themselves obtaining abortions. 

The issue seemed to be settled by the 1973 Supreme Court Roe vs. Wade decision which found the right to abortion to have implied Constitutional protection. This decision was upheld in the 1992 Planned Parenthood vs. Casey decision.  Now however, changes in the ideological composition of the Court and in the political makeup of various states legislatures, have brought forth several challenges to the Roe decision.  The Court has heard a case from Mississippi which restricts abortion to the first 15 weeks of pregnancy and directly challenges the constitutional protections of Roe. 

In a despicable violation of the Court's deliberation confidentiality, a draft opinion of the case was released to internet opinion journal "Politico".  The draft opinion, which may not be the final opinion due in June, has stimulated a chaotic protest movement and media blitz  by supporters of Roe.  In what seems to be an unfortunate replay of the protest culture of the past two years, chants have become personal vilification and threats, and graffiti has morphed into violence as churches are targeted, a building housing a pro-life advocacy group was fire bombed and the homes and families of Supreme Court Justices have been the targets of intimidation.

In every dispute resolved by the judiciary there are winners and losers. In most cases the losers accept the judgement of the court. The current response to the draft opinion suggests that even before the final judgement is rendered, this is not the case. But there are wider issues that must be considered.  There are several basic pillars to the foundation of the U.S. democratic system. This collective response of pro-choice lobbying groups which is being exploited by Democrats for political advantage in the face of their popularity challenged policies and economic conditions, has negative implications for one of the most important, the existence of an independent judiciary.  

The founders of our republic prioritized the need to avoid concentrations of power in any executive branch of government which left unrestricted, could lead to autocracy. The concept of ""separation of powers", of which an independent judiciary was a component, resulted.  To create balance in the judiciary, federal courts have been created with a graduated appeals process, to afford thorough review but with ultimate final decisions, if so ordered, by the Supreme Court. Notwithstanding the possibility of public disapproval of the Court's decisions, the independence of the courts must be maintained as intimidation and  political pressure if allowed, could destroy the integrity, effectiveness and credibility of the system. 

The independence of the judiciary must be combined with a second foundational principal, the acceptance of the "rule of law".  The Supreme Court is not, and has never been, a quasi-representative  legislative body. The Court's nine members are charged with interpreting the Constitution and its applicability to the laws created by the only representative governmental bodies, the U.S. Congress and the legislatures of the various states. The Court simply cannot base its decisions on the vagaries of public opinion which may not comport with constitutional standards. The alternative to a commitment to the rule of law is anarchy. 

This history of the nation is replete with important cases, often characterized by moral, religious, or ideological issues. These include the advocacy and availability of birth control methods, pornography as "free speech", legal gambling, and gay marriage and numerous civil rights related decisions. The imposition and reversal of prohibitions on the manufacture and sale of alcoholic beverages even required two amendments to the Constitution. In all these cases despite protests prior to their passage, the results have largely been accepted. The current level of extremist advocacy over the constitutional protection of abortion could set a dangerous precedent.  

Despite the arguments in the draft opinion, a substantial case for the constitutional protection of abortion has been made based on the "right to privacy" found in the Constitution's First, Third, Fourth, and Fifth Amendments and as well in the "liberty" provisions of the Forthteenth Amendment. Privacy rights have been subsequently applied in numerous cases before the Court in which these provisions were reasoned as "implied" rights for those not expressly stated in the Constitution. The released draft opinion does not expressly deny the theory or use of "implied privacy rights". It simply seems to find that the right to abortion is not one of them.  Future courts may disagree and rule differently but if the draft opinion accurately reflects the final opinion the decision will be the law and must be respected.  

The Supreme Ct. is not moving towards outlawing abortion. In denying constitutional protection it is leaving the process up to the individual states in the context of our federal system. Several states have already passed laws protecting abortion rights. Protestors are free to move their energies to those state's legislatures that pass laws restricting abortion, a venue where public opinion is properly a factor in the legislative process.  

It is also possible for the U.S. Congress, with the approval of the President, to legislate federal protections for abortion which would be superior to state laws restricting it.  A bill has already been presented to do just that but fell short of approval in the Senate. A Democrat victory in the 2022 congressional elections giving them control of the Senate and continued control of the House, although looking unlikely, would present such an opportunity.  This would be the proper strategy as it would accomplish the same goal as a Supreme Ct. ruling and would preserve the foundational concept of "separation of powers" that an independent judiciary is a vital part.

Still, Democrats are trying to politicize the impending court decision as one of a very few "straws to grasp" in the face of a dramatic failure in the November, 2022 congressional elections.  Desperate opinion journalist have claimed that over turning Roe will lead to similar efforts and decisions by the courts to overturn gay marriage or transgender protections. One such journalist at the Left wing internet journal VOX proclaimed that the Supreme Court's coming decision was illegitimate because the Court itself was illegitimate. Carrying this illogical assertion one step further, she said the Court was illegitimate because five of the sitting Justices were appointed by Presidents who won office without a majority of the popular vote. She was referring to George W. Bush who nominated Chief Justice John Roberts, and Justice Samuel Alito to the Court after his Electoral College victory in 2000, and then to Donald Trump who won in 2016 and subsequently nominated three Supreme Ct. justices. This is just a recurring attack by Democrats on the Electoral College system. Found in Article 1 Clause 2 of the Constitution, the Electoral College has performed satisfactorily for the entire history of the Republic. Only three times in that history has the Electoral College outcome been different than the popular vote.  Democrats don't like it because it takes away the advantage of large Democrat majorities in California and in the coastal states and has resulted in Republican Presidents in the two elections just mentioned. The Constitution contains its own method for revision but Democrats don't have the votes for that either.  But the claim that the Presidents so elected are illegitimate is absurd and irrelevant to the decisions of the Supreme Court. One other over excitable abortion activist went so far as to claim that even if the Constitution allowed states to restrict abortion rights the Constitution itself was illegitimate because it was written by "old white men" who had no allegiance to equality. 

Even if one believes the upcoming decision based on rejection of the applicability of a right to privacy is wrong, the level of hysteria and ridiculous "end of equality" and "end of democracy"  hyperbole that is being deployed ignores the truth which is abortion, while made more difficult for some will still be available. An estimated 21 states will ban abortion or pass restrictions on its use.  But of those 21, 9 will share a border with a state where it available, leaving only12 states, mostly in the South, where it is banned and geographically difficult for poor women to gain access.  

Of course, alternatives to unwanted pregnancies are available.  Birth control pills and accessories are a less severe and safer choice and are available everywhere. Perhaps pro-choice advocates should now become anti-unwanted pregnancy advocates and promote these alternatives.  In addition "morning after" abortion pills offer an earlier and thus less traumatic solution.

Constant organized protests in states where the legislatures and governorships are safely dominated by one party or the other are pointless and divisive. Such protests, in front of the Supreme Ct. are also pointless and  ineffectual and an affront to the "rule of law" and an "independent judiciary", as well as attracting counter protests that create dangerous situations and over tax law enforcement assets.

Protests in general, now organized on any and every subject,  have morphed from being  primarily about  policies to being about the protestors as an expression of personal theater, a form of entertainment, self promotion and "virtue signaling". If protestors were serious they would direct their energies to the ballot box which has the ultimate power over public policies; but of course that requires patience, organization and hard work. In the current environment of economic inflation, supply chain shortages, environmental extremes, open borders and rising crime, the nation should be spared the continuing public display of divisiveness, potential violence, and social instability that seems to be coming.