Will Roe Go?

The Supreme Court recently heard oral arguments in Dobbs v. Jackson Women’s Health Organization, a case which has the possibility of resulting in the overturn of Roe v. Wade. SCOTUS will probably deliver their judgment in late June or early July.

Roe is the 1973 decision in which five justices found lurking somewhere in the Constitution a right for women to kill their unborn babies if they so chose.

A lot of folks on the pro-choice side of the abortion debate are concerned that the present Court will find that no such right exists anywhere in the Constitution, and a lot of people on the pro-life side are equally concerned that the Court will manufacture some reason not to overturn Roe.

I'm not a legal scholar, but for my part I can't imagine that the Founding Fathers inserted language into some Constitutional nook or cranny that endowed women with such a right, and a lot of pro-choicers agree, including the late liberal Justice Ruth Bader Ginsburg who acknowledged that Roe was bad law.

The role of the Court is to rule on what the Constitution says, not on what the justices wish it said or imagine it to say, but that seems to be what they did in 1973 when, in an act of legal prestidigitation, they produced from the Constitutional hat a right to abort a pregnancy.

In any case, if Roe is overturned it will not end abortion in America, but it will return to each of the states the responsibility of deciding what restrictions, if any, they wish to place on it. Some states will permit abortion on demand up until birth, maybe even after. Others may prohibit it almost entirely. Most will land somewhere in the middle.

The point is that it will be left to the people of each state to decide, through their legislatures, what they want the law to be. This is how a democratic Republic is supposed to work.

By overruling the states in the Roe decision five Justices on the Supreme Court stripped millions of citizens in this country of the right to determine their own laws on an issue the Court had no Constitutional warrant for removing from the purview of the states.

As Peggy Noonan at the Wall Street Journal (paywall) writes:

It [the abortion controversy] won’t be settled for a few years. But then it will settle. This path—overturning—is the closest America will get to justice and democratic satisfaction on this issue. Overturning Roe would mean returning a furiously contested national issue of almost 50 years standing to the democratic process.

This wouldn’t “solve” the problem or “end” the struggle. It would bring the responsibility for solving and ending it closer to the people. In the short term it would cause new disruption and renewed argument, as Roe itself did when it negated abortion statutes in 46 states and the District of Columbia.

... It will take time to play out. Politicians who stray too far from true public opinion, as opposed to whatever got burped up in a recent poll, will fairly quickly face backlash at the polls.

It's possible that the Court chooses to allow Roe to stand in some form, but if they don't overturn it now they're just kicking the can down the road, ensuring continued cultural battles and guaranteeing that many more cases come before them in the future.