Roe v. Wade is dead. Now what?
The impact in California and the other blue states is negligible, and abortion will continue to be available in those states. But more potentially impactful is the court’s finding that the “right to privacy” that the Roe court “discovered” in the Constitution does not actually exist. This has implications for other areas applying this right, such as contraception, medical care, and the regulation of sexual behavior.
This reversal illustrates the pitfalls of using the judiciary to impose public policy. Judicially created policies lack the social legitimacy afforded to policy created through the political process, as most people can grudgingly accept being outvoted. And policies created by an unelected Supreme Court not only lack moral force, but also lack permanence. Here, a new right “discovered” by the Roe court was later “undiscovered” when the ideological composition of the court changed. Easy come, easy go.
Congress is considering new laws to ensure access to abortion, but the outcome is far from certain. As the electoral defeat of same-sex marriage in uber-liberal California showed in two different elections, the electorate is often unwilling to embrace the left’s agenda. As inflammatory as the issue is, most moderate politicians in contested districts just wish the issue would go away and would rather be caught in the congressional cloakroom “mentoring” an underaged intern than take a stand on the record.
So, how do you make a new right permanent? A constitutional amendment.
Of course it is a difficult process, but the idea of a “right to privacy” would initially enjoy broad support among both liberals and conservatives, at least until the implications settled in. Liberals would want to protect abortion, same-sex marriage, and other priorities, and cranky old conservatives like myself would enjoy getting government out of our lives. Few people like the idea of government injecting itself into their personal affairs. Many people believe that, even if the Constitution doesn’t have such a right, there should be a right to privacy—a right to be left alone.
The initial problem would be defining the limits of any amendment that protected abortion. While the majority of voters reportedly support abortion in general, a majority also oppose abortions later in the term. Would the pro-choice absolutists, who demand complete bodily autonomy, be willing to support a limited right to abortion? After all, the Mississippi statue challenged in Dobbs v. Jackson, the case striking down Roe, provided for abortion on demand up to 15 weeks, and later upon a medical emergency or fetal deformity—limitations that the pro-choice forces found unacceptable and chose to challenge. The Mississippi law may more closely approximate the sentiments of the voters than would allowing all abortions without restriction.
A twist to consider is the fact that settling on terms might involve political compromises creating nationwide restrictions that limit the abortion rights currently allowed in less-restrictive blue states. Would pro-choice forces in those states be happy about any reduction of access?
The next hurdle for such a constitutional amendment would come when people realized that a broad “right to privacy” or a “right to bodily autonomy” could be asserted by their ideological foes to permit behavior that they disapproved of. People would face the dilemma of deciding whether protecting their own privacy or autonomy was more important to them than indulging their urge to control the lives of others.
Liberals, who prefer an expansive and often intrusive government, would find a lot of their agenda jeopardized. For example, the absolute right to bodily autonomy asserted in the abortion battle, might also be asserted to challenge mandatory vaccinations for COVID-19 or HPV, face masks, restrictions on the drugs we are allowed to use, the ban on polygamy, smoking restrictions, seat belt laws, the Obamacare insurance mandate, or various “nanny-state” laws.
A recent commentary in this paper noted the contradiction between supporting a “right to bodily autonomy” as to abortion, while denying it to those who object to vaccinations (“Bodily autonomy,” June 30). Those who responded, arguing that vaccinations are a good idea and should be required, missed the point. If you create a broad universal right, it is going to be universally asserted in cases in which it is applicable, not just to those situations you approve of.
Would cultural conservatives, with their love of old-fashioned values, be willing to tolerate abortion, same-sex marriage, gay and extramarital sex, or assisted suicide in order to limit governmental intrusion into their own lives?
Tough choice! There are two strong opposing drives here: our desire to be left alone versus our emotional need to control “those people.” Are we willing to give up telling others how they should live in order to get others to leave us alone? Can we tolerate the annoying “wrong-headedness” of others and curb our urge to use government to correct them?
Do we truly want a right to bodily autonomy if it applies to everyone, and not just to ourselves? Δ
John Donegan is a retired attorney is Pismo Beach, who is powdering his wig for the coming constitutional convention. Send a response for publication to letters@newtimesslo.com.
This article appears in Aug 25 – Sep 4, 2022.
Great point from John! Broad universal rights like freedom are good! Therefore I should be free to do anything I want! This is great legal analysis from one of the top retired attorney’s in Pismo Beach.
So you’re willing to give up ordering the rest of us on how we should live? Wonderful!
So. Griswold vs. Connecticut and decisional privacy is done? Not so sure.
I think “originalist” judges might go back and look at the meaning of the word “privacy” as it was defined n the late 1700’s. In those days the word privacy meant the freedom from being viewed without clothes or in the process of using the bathroom.
Over the years, privacy has meant much more, and I think that if Madison, Jay, Jefferson, etc. lived today, they would have acknowledged that a right to privacy meant anything involving ones right to love whom they want and control their family as they want.
It simply defies logic that our founding fathers, who were all about extending rights on every issue, would fail to see that abortion, contraception (had they been morphed into the modern world) and rights for homosexuals would not have been on their minds when writing the Bill Of Rights.
I mean, really, Ben Franklin or Thomas Jefferson never encountered gays or women who had abortions? Unlikely.
I’ve always taken a positive view of these men and the effect that women had on them. Go back and read the letters from Abigail to John. She knew that rights for women, women who wanted abortions and gays were an important part of the formation of the U.S.
Since when has the U.S. started taking away people’s rights, as SCOTUS has done with Dobbs vs. Jackson?
And sure, sure, this will never happen in California…until an autocrat such as Donald Trump or Ron Desantis declares martial law over some fabricated electoral fraud.
What then, John?
It takes a LOT of imagination to see Jefferson, Franklin, Jay, Madison, et al. sitting around the conference table and exclaiming “Say, I think a couple of fellows out to be able to marry each other!” After all, they all at least purported to be religiously observant, and I believe that the reference of the day was “a love that dare not speak its name”. And it is even less plausible that they would somehow decide that privacy concerns related to sexuality, like abortion, homosexuality, and contraception, were not only deserving of protection by the Federal government against state intrusion, but occupied a special exalted category elevating them above ordinary rights. This is what the left has done when they have reserved the “right to bodily autonomy” solely to sexually related matters like abortion, while denying it to other types of medical procedures, or to other areas of life. The founding fathers did not share the fixation with sexuality that today’s Democrats have.
Perfect argument Mr. Donegan.
It’s exactly why an originalist interpretation of the Constitution is totally ridiculous and shames the men who wrote it. We definitely can’t know how Franklin or Jefferson thought about gays. They would have never discussed it, although they surely must have encountered it. We can never know their minds on it either, which is what an originalist interpretation magically seeks to do. It was rubbish when Scalia uttered it years ago, and it remains rubbish.
Fortunately, the Roe v. Wade dustup has emboldened women to get out and vote. This abortion crap, however you spin it, cannot stand. 70% of new voter registration in Kansas after the introduction of a ban on all abortions were women. The same is taking place all over this nation.
Finally, your comment “The founding fathers did not share the fixation with sexuality that today’s Democrats have.” is also total rubbish. Ever read any biographies of Franklin’s time in the French court, or Jefferson’s interludes with his slave mistress.
I guess they don’t teach Freud in law school.
I didn’t say that the founding fathers were oblivious to sexuality. After all, they and their contemporaries managed to produce the next generation of founderettes. But, they didn’t seem to obsess over the subject like you Democrats do.
You denigrate the originalist approach to the Constitution, but what use is a “rule book” like the Constitution if it can be interpreted in any way desired to fit the fashionable thinking of the moment? Why bother to even have a Constitution if the written terms in it are meaningless, and it just serves as a sort of sacred talisman to cite as authority to do whatever you want to do anyway? Even the new Justice Jackson allowed that the “living Constitution” approach tended to reflect the popular policies of the moment, rather than long standing truths.
Hopefully you realize how ridiculous it is to suppose that people from nearly 250 years ago would have embraced ideas that the majority of modern people would have dismissed as absurdly extreme just a few decades ago. They may have been forward thinkers, but they weren’t ideological weathervanes going with the flow of popular thought.