The Case of Roe v. Reason

By Kevin D. Williamson

Tuesday, May 03, 2022

 

The conversation surrounding the leaked Supreme Court opinion that will, if it turns out to be the actual majority opinion, overturn Roe v. Wade has done something I thought impossible: It has made our political conversation dumber.

 

A few bad arguments about Roe that bear considering:

 

Roe must stand because most Americans support Roe. The number 70 percent has been thrown around a lot, though it is a little more complicated than that. Most Americans tell pollsters that they support relatively liberal abortion regulations in the first trimester; most Americans also support stricter regulations later in pregnancy. As things stand, Supreme Court jurisprudence is far, far, far to the permissive side of the median American. But that does not really matter. The Constitution says what it says even if 70 percent of Americans wish it said something else. The Constitution says what it says even if 99 percent of Americans wish it said something else. Even if it were the case that the overwhelming majority of Americans support the abortion status quo (the status Roe, you could call it), that would be, as far as the Supreme Court is concerned, entirely beside the point. If 95 percent of Americans don’t like the First Amendment or 100 percent want to reinstitute slavery, that doesn’t change what the Constitution says. It means that the majority can go jump in a lake — which is what constitutions are there to do.

 

That being said, if it really were the case that overwhelming majorities of Americans wanted the same abortion rules that Planned Parenthood wants (meaning, essentially, none) then having the elected representatives of the people take up the question in the legislatures and vote on it seems like it would be a winning outcome for the pro-abortion side. The fact that the pro-abortion side is terrified of working out the question democratically tells you that they know they do not have the support they claim to have.

 

Men shouldn’t make rules about abortion. Well. Every justice who signed off on the original Roe opinion was what we used to call a man. And if you think men cannot become pregnant and have abortions, then you’ll have to fight that out with your neighborhood trans activists. Let me know when you have sorted that out.

 

Congress should now preempt this and pass a law mandating the Roe standard nationally. Such a law probably would not pass even with Democratic control of both houses of Congress, and even if it did, it probably would not be constitutional. The United States of America is, as the name suggests, a union of states, and the power of the federal government to legitimately preempt the states is limited to issues that are interstate or international in character. The states have powers of their own, and regulation of abortion is properly a matter for the states. Our hysterical pro-abortion friends should consider that a Congress empowered to mandate abortion rights from sea to shining sea is a Congress that is empowered to prohibit abortion from sea to sea, too.

 

This is all about religious fanaticism. No. It isn’t even about whether abortion is wrong. The question is whether the Constitution contains some provision, somehow undetected until 1973, that prevents state governments from prohibiting abortion. It does not, a fact that is plain even to many intellectually honest pro-abortion legal scholars. Religion does not enter into the question at all. Neither does the morality of abortion.

 

This is the end of abortion rights in the United States. Unhappily, no. Vacating Roe does not prohibit abortion. It simply empowers the nation’s lawmakers to make law. It is unlikely that abortion rights will be meaningfully restricted in California, Illinois, New York, New Jersey, etc. Abortion probably will be much more tightly regulated in Texas, Oklahoma, Utah, etc. Other states will probably fall somewhere between the extremes, as determined by their voters. That is how democracy works.

 

Prohibiting abortion won’t stop women from having abortions. That’s true. And prohibiting murder doesn’t stop people from murdering, prohibiting theft doesn’t stop thievery, etc. If passing a law against x stopped x, then we wouldn’t need courts, criminal trials, etc. Prohibition is a matter of creating disincentives, not a matter of absolute certainty in outcomes.

 

Women are going to start dying in back-alley abortions. Contrary to the myth, before Roe was decided there were very few documented cases of women dying from amateur abortions. The number wasn’t zero, but it wasn’t very high, either, partly because abortion wasn’t illegal everywhere in the United States before Roe and partly because many illegal abortions were performed by medical personnel in medical facilities. After Roe overturned all the states’ abortion laws, a few women continued to die each year from illegal abortions, even though abortion is legal. There is not much reason to expect that to change.

 

But, even if there were, it is hard to take seriously an argument that goes: “We shouldn’t pass a law against x, because making x illegal will make it more risky to engage in x.” The dynamic is a real thing, of course, but there are good and bad versions of it: If drugs weren’t illegal, then fewer people would die from consuming adulterated drugs because recreational drugs would be made by Merck and Bayer rather than by amateurs in ramshackle outlaw labs — that’s true. It also is true that if we didn’t have laws against molesting children, then child molesters wouldn’t get murdered in prison for being child molesters. I’m in favor of legalizing drugs and imprisoning child molesters, but you have to address the primary question rather than work backward from the second-order concern.

 

The job of the Supreme Court is to interpret and apply the law, not to give you the political outcomes that you have failed to win at the ballot box. If you are one of the people out there screaming that the Supreme Court is now “illegitimate,” then you are the Democratic version of the Trumpist knuckleheads who insisted that the 2020 presidential election was “illegitimate” because their guy didn’t win. The Constitution is not a genie that grants wishes, and the Supreme Court is not there to defer to what any majority, no matter how large, demands.

 

One of the duties of citizenship is understanding — and acting on the fact — that there is more to the life of a nation than getting what you want.