Whether or not Roe v. Wade is overturned, it will be headed the way of the Kansas-Nebraska Act.

The Supreme Court decision establishing a broad decriminalization of abortion throughout the United States has been unusually resilient for such a contentious subject. For nearly half a century, the verdict seemed as settled as any could be in American politics, with those favoring greater restrictions content to limit access de facto, rather than risk pushback against drastic changes to what is allowed de jure.

Yet the legal status of such a controversial topic remaining stable for such a period of time was the exception, not the rule.  Beneath the long detente lay decades “of compromising, and dickering, and trying to keep what was as it was, and to hand sops to both sides when new conditions demanded that something be done, or be pretended to be done” — words written more than half a century before Roe, about the issue of slavery.

Essayist Voltairine de Cleyre noted that political compromise set the stage for clashes between opposing camps, regardless of what the laws were on paper. Abolitionists pressed not only against slave owners, but those who thought that slavery  “was probably a mistake” but “were in no great ferment of anxiety to have it abolished.”

It’s particularly ironic that advocates of family planning have forgotten de Cleyre’s reminder of how things can get done by individuals or groups in voluntary association “without going to external authorities to please do the thing for them.”

Planned Parenthood founder Margaret Sanger got the idea from de Cleyre’s anarchist comrade Emma Goldman. Yet as Goldman biographer Richard Drinnon observed, Sanger “guided the movement into respectably conservative channels by emphasizing the need for legislation which would give doctors, and doctors only, the right to impart contraceptive information.”

Sanger had joined with de Cleyre and Goldman not only in promoting personal autonomy for women, but for children between birth and adulthood in Modern Schools.  Yet Sanger ceded to the state the very power over reproductive health she had wrested from private patriarchs, viewing “the personal liberty of the individual” in that realm as “unrestricted and irresponsible.”  Her successors have insisted that organizations like Planned Parenthood can only function with government subsidies — while minimizing the fraction of funds going directly to abortion!

Once again,  as de Cleyre put it, “the direct actionists on both sides” will “fight it out” in contested territory, which this time spans the entire country.  The collapse of consensus will unleash plenty of acrimony, but “pro-choice” and “pro-life” partisans may as well drop the pretense that the government is either.

New Yorker Joel Schlosberg is a senior news analyst at The William Lloyd Garrison Center for Libertarian Advocacy Journalism.

PUBLICATION/CITATION HISTORY

1. “Abortion: Out Of The Political Trap” by Joel Schlosberg, Ventura County, California Citizens Journal, May 9, 2022
2. “Abortion: Out of the Political Trap” by Joel Schlosberg, CounterPunch, May 10, 2022
3. “Abortion: Out of the political trap” by Joel Schlosberg, Miles City, Montana Star, May 10, 2022
4. “Abortion: Out of the political trap” by Joel Schlosberg, Creston, Iowa News Advertiser, May 11, 2022

In the wake of a leaked draft Supreme Court opinion which, if it represents a final vote, would overturn Roe v. Wade, pro-choice advocates are marshaling their best — and worst — arguments against removing that ruling’s protections for abortion.

As always, I’ll refrain from sharing my own opinions on abortion as such. I’m not interested in convincing anyone of anything there, if for no other reason than that I’m not firmly convinced myself.

I won’t refrain from sharing my opinions on poor arguments, though. Both in general and on abortion specifically, they’re quite possibly my top pet peeve.  And the worst argument I’m hearing right now is … the envelope, please …

Overturning Roe would be “undemocratic.”

“Overturning Roe v. Wade Shows the Right Has Nothing but Contempt for Democracy,” Ben Beckett writes at Jacobin. “If the decision stands, it will be a high-water mark for the Right’s project of undemocratic rule …. As the draft decision shows, the Supreme Court is arguably the most powerful weapon the Right has for ruling without and against the people.”

Really? The problem isn’t a matter of fundamental individual rights versus state power, but rather of “democracy?”

Let’s take a look at the three underlying cases:

In Roe v. Wade (1973) the Supreme Court overturned Articles 1191-1194 and 1196 of Texas’s Penal Code. Those articles and that code were passed by a democratically elected state legislature. The Court overturned “democracy” in favor of what it held was a constitutionally protected individual right.

In Planned Parenthood v. Casey (1992), the Court further expanded its interpretation of those constitutional protections versus Pennsylvania’s Abortion Control Act of 1982, once again ruling against a democratically elected state legislature and in favor of a right to abortion.

In the current case, Dobbs v. Jackson Women’s Health Association, the Court will rule either for or against Mississippi’s Gestational Age Act —  which, you guessed it, was duly passed by a democratically elected state legislature.

If the draft opinion becomes an actual ruling,  democratically elected state legislatures will once again make decisions on abortion law.

That’s the exact opposite of “undemocratic.” It’s full-blown democracy, tip-toeing through the abortion tulips with bells on and playing a ukulele.

Those who claim a constitutional right to abortion might want to reconsider their fetishistic (and in this case, simply incorrect) appeals to “democracy.” There’s something to be said for protection of individual rights against the whims of majorities — and not only on this issue.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

On May 2, Politico hit America with a bombshell scoop: A leaked Supreme Court draft opinion overturning the last 50 years of federal jurisprudence on abortion, discarding Roe v. Wade and Planned Parenthood v. Casey, and returning the matter to the states.

Predictable responses ensued: Outrage from pro-choice activists who want Roe left intact, and outrage from Republican commentators that the opinion, which would likely have been released some time in the next two months, was preemptively leaked to the media.

While I naturally have my own opinions on Roe/Casey, and on the current case (Dobbs v. Jackson Women’s Health Organization), I’m not going to share them here.

And while I get the outrage from the right concerning the leak, it’s not the leak per se that bothers me. It’s the timing.

The leaked draft is labeled “Circulated: February 10, 2022.”

Assuming the document is real (which I have no particular reason to doubt), and that it follows rather than anticipates an actual vote of the Supreme Court’s member justices on the case, Dobbs v. Jackson Women’s Health Organization was decided three months ago — and we may have to wait up to two MORE months before the court gets around to telling us about it.

Most Americans who care about this case seem to agree that a lot turns on the Court’s decision.

Every day that passes without an officially released ruling means more abortions are performed in Mississippi. The position of the state of Mississippi — agree with it or not — is that those abortions violate the right to life of the aborted fetuses, which is why it passed the ban that led to the case.

In the meantime, Mississippi’s abortion providers (whose position — agree with it or not — is that abortion is a human right which the Mississippi ban violates) are forced to operate in an environment of continuing uncertainty.

And since it’s a Supreme Court decision, every state government and every abortion provider in America has a similar stake in the outcome.

Why are we still waiting on the Court to publicly announce a decision it made months ago?

The Constitution assigns appellate jurisdiction to the Supreme Court “under such Regulations as the Congress shall make.”

Here’s a suggestion: Congress should require the Court to publicly announce its decisions within one business day of voting.

Justificatory opinions can come later, but the Court owes  litigants — and the country — promptness in resolution of disputes.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY