Introduction
Abortion is, without a doubt, one of the most controversial issues dealt with in today’s political environment. This week marks an unprecedented landmark in politics and law surrounding the issue within my lifetime, and I feel I would be remiss if I didn’t take the time to discuss the situation and particulars from both a political and philosophical issue, particularly as that is the whole point of this blog.
I want to begin by pointing out that the leak of a draft of a Supreme Court decision actually is illegal and could send the person who leaked it to jail, as it should once we find out who did this. Whatever your position on this issue, it is critical that drafts like this on any issue remain unavailable to the public until the official decision is published in order to maintain the security of the court’s ability to deliberate free from mob pressures and political pressures. They were never intended to be a political apparatus that created legislation on the basis of constituent or lobbyist pressures, and that is the whole point of making them unelected officials. The Founders did this on purpose, and if you leak court documents before a decision is even finalized, the only thing you do is expose the justices to threats and political pressure (both of which are already coming down on the court) and destroy their ability to function as they were intended to–free of the whims of the people or whichever activist group can make the most noise or throw the most money at them. With that out of the way, I want to start by covering the philosophical roots of this issue and then go into the legal implications and some common misunderstandings I’m seeing consistently on social media as average people like you and I are discussing the new turn in the political scene regarding abortion. Legal or illegal, the document’s out, and it seems likely the court will maintain their position as it is, so it’s worthwhile to understand what that position actually means.
Defining Terms Surrounding Abortion
First, in any debate, it is absolutely crucial to define parameters and definitions. That is what I will begin with so that there will be no confusion regarding how I am using terms going forward or what I mean by them.
To begin with, when I discuss abortion, there are a few things that I do not count because they are not, under any state law, considered abortion or illegal. They are simply not on the table as part of this debate, though there may be some religious debates surrounding them within certain communities. From a legal perspective, however, and from the perspective of what is accessible or not, even in states that would ban abortion outright, they are not issues. The first of these would be the matter of an ectopic pregnancy. For those who aren’t aware, an ectopic pregnancy occurs when the baby is growing somewhere outside the uterus, where it will kill both mother and baby if nothing is done. Usually, in about 90% of cases, this happens in the fallopian tube and is extremely dangerous for the mother. It is estimated that about 1 in 5 women in the US end up facing a crisis of this sort. This sort of pregnancy is usually not considered abortion because there is zero chance for the baby to survive, period. It will kill the mother if it is not removed, and there is no choice but to remove it unless you’re for both baby and mother dying for no reason. Maybe someday we will have the science to save both; this sort of situation is tragic for the mother just as much as a traditional miscarriage would be. For now though, we can’t do anything except save the mother. We’re not taking away a life that would survive in this case, so the law usually doesn’t prevent it.
Ohio does have a law under consideration that talks about ectopic pregnancies and nontherapeutic abortion, but even there, they do allow exceptions for procedures in emergency situations to save the mother’s life, and they do state that they do not include procedures to move the egg to the uterus in those cases as nontherapeutic abortion. I’m not sure what the last is doing in there given that medical professionals have made clear we have no way of doing this, so there are questions about this, but there is not broad base support for such a measure that would ban even procedures for such a pregnancy, and given that they do not ban procedures to save the mother’s life, it could well be taken into consideration that failing to perform the procedure to remove the embryo would result in the mother’s death. It’s hard to say how that will play out, but for the purposes of the current situation and this discussion, I do not consider removal of the embryo in such a case to be abortion or in any way morally wrong. It’s a difficult situation, and anyone advocating that we should destroy a life when the one we’re destroying it for will die anyway no matter what we do ought to be ashamed of themselves for suggesting it. That is most certainly not what I am advocating here!
Secondly, we are not discussing procedures to remove a stillborn baby who did not miscarry properly. This situation isn’t one I’ve often heard of, but I’ve heard a few people bring it up in the abortion debate as though we need to keep abortion legal in every case so these few can have a dead baby removed before the mother goes septic and dies. Once again, while I know some Catholic-run or other religious hospitals will not perform such a procedure, I know of no state law or state-run hospital that would refuse to perform this procedure. It falls under life-saving procedure. The baby is already dead, regardless of why. Obviously, I can understand that some of the religious institutions refuse out of the concern that perhaps the mother killed it with aborticides, but at the end of the day, the baby is dead and they didn’t have a hand in it. However it happened, it still needs to be removed to preserve the living human being asking for the procedure. Therefore, it falls under a necessary, life-saving procedure that has to be handled if the mother’s life is to be preserved. I know of no one in this debate who is suggesting that outlawing abortion should include refusing to remove a dead baby before the mother goes septic any more than I know of any who argue that ectopic pregnancy removal should be included under anti-abortion legislation. In fact, I know many intentionally exclude these situations, just as I am, and rightfully so. There is suffering enough to the mother in knowing that her child is dead or will be dead no matter what she has done; it would be a moral wrong to heap more suffering upon her and her family by consigning her to death as well.
So, then, what do I define as abortion? I define abortion, as most pro-life advocates do, as the murder of an unborn child who would otherwise have been carried to term and born. Period. It is the intentional destruction of life at any stage in the process, and it is just as wrong as it would be to allow a mother to die because her baby is dead or dying and cannot be saved. Human life is sacred, end of story. If we consider it murdering the baby in the womb if some random guy beats a pregnant woman up and ends the child’s life, then it is unacceptable for someone to go in and suck that same baby out of the womb, tear it to pieces and then pull it out, destroy it with chemicals, or perform literally any other procedure that would guarantee the death–if it goes to plan–of a baby in the womb who is of no threat to the mother’s life.
Dealing with Sensitive Abortion Issues
Some would bring up the rare cases of pregnancies due to rape or incest, which make up a tiny minority of the abortions that do go on in the US every year, which numbered a little over 629,000 abortions in 2019 per the CDC records. This is a legitimate issue given that in the few cases where this is why a woman is looking for abortion, there has already been a great deal of trauma. However, studies performed on the number of rape victims who chose to keep their babies have shown that 70% or more of those women chose to keep the baby and found that it actually gave them a reason to keep going, rather than impeding their healing. Many kept the baby and raised the child, while others opt for adoption, but 70% is a large number out of a small population of those whom abortion advocates claim abortion needs to be kept legal for. Of the other 30%, many of them report being devastated by their choice and finding that it added to the trauma and the struggle to heal because they felt grief over killing the child even though they’d been told it was best or the right thing to do for themselves. (For those interested, this site has a collection of stories and testimonials from a variety of women as well as some links to other articles with more stories by women who did go through this.) Is this a sensitive situation? Yes, it is. It’s very difficult for everyone involved, but for no one more than the victims. However, the studies indicate that abortion is actually adding to the trauma, not making it better, and that having the baby (even if you don’t keep the child after) can actually help with the healing process.
While I understand that some of those making this argument are trying to come at it from a place of understandable and well-meaning compassion, the evidence simply does not support using abortion as the solution, so I am against it in this case as well. I am for finding better ways to offer support to these victims within the community, educating people to put an end to the harmful mentality that a rape victim asked for it so that there will be less judgment and cruelty, and finding ways to start charitable programs to reach out to young woman in these positions with counseling, supplies, and guidance. Some organizations already do this, and they have had a great deal of success, not just in helping mothers to make informed choices but also in offering them what they need to get through a time that can be difficult when alone, without support, and potentially financially unable to access what is needed to have the baby and/or keep the child after (if that is the choice made). We shouldn’t leave behind those in our community who are suffering through no fault of their own, but let’s find solutions that meet the needs. Taking an innocent life is never the solution. We can and should be finding ways that don’t involve making the situation worse or adding one moral evil on top of another by persuading the victim that killing the child will make it all go away or at least lessen the difficulties. Evidence says that makes it worse, not better, so if our goal is really to help these women rather than using them as a prop in arguing for abortion on the basis of a fringe minority, then we need to start looking for other options and better ways to help. It’s a worthy goal, and I don’t claim to have all the answers, but I know good work is being done and more of it ought to be started instead of sending them straight to an abortion clinic to add to the trauma.
Abortion from a Legal Perspective
So let’s turn our focus to the situation with the Supreme Court as they are poised to overturn Roe v. Wade. I’ve seen a lot of inaccurate claims, hysteria, and anger from the Left over this issue, and I want to start by addressing that. First of all, I find it ridiculous to become so angry over the possibility (yes, only a possibility in most cases, as I’ll explain in a moment) of being denied the ability to murder an unborn child. Seriously, they aren’t even arguing that they’re angry because it might harm the rare person in the situations mentioned above, two of which are usually not even included in the most restrictive laws and which most Americans would be against banning even on the conservative side. They’re angry because women who chose to have sex and either failed to use protection or else had protection fail on them ended up facing the consequences of their decision. Very bluntly put, if you choose to have sex, you do it knowing there’s always the possibility that something could go wrong and an unplanned pregnancy could occur. If you want to take the risk, fine, but you don’t get to turn around and murder a child because you don’t want it. Period. You are responsible for your choices, and the child shouldn’t suffer because you decided you didn’t like the idea of being responsible for that particular one. The Left is up in arms because they believe that abortion is sacred, in the words of numerous lawmakers like AOC. It is no longer that they believe it is a necessary evil. They believe it is a right guaranteed to every woman, and it is evil for anyone to make laws against it. That’s the root of the anger. On a moral level, that’s simply despicable.
However, in watching the debates occurring since the leak of the Supreme Court document, I’ve also noticed that a great deal of the debate is occurring due to patently false notions of what overruling Roe v. Wade does, what the Constitution actually says, and what constitutes abortion. I want to address those people’s concerns on a legal level here. For those who are arguing with the crowd mentioned above, I have nothing to say except that I wonder what god you’re worshipping to make the murder of children at any stage a sacred right. I also wonder what version of the Constitution this crowd’s reading. My version says nothing about your right to take another life anywhere, says nothing about harming a body that is not yours, says nothing about reproductive rights or marriage or anything else even closely relating to this issue on a federal level or state level. What it does say is that what powers are not explicitly granted to the federal government in the Constitution are the states’ or the people’s. So… That would mean since abortion and so-called reproductive rights are not mentioned anywhere in the Constitution and, beyond that even, have zero historical basis in natural law, which is where the idea of natural rights as promoted by our Founding documents come from to begin with, the decision on abortion goes to the States and the elected representatives of the people in those States.
But let’s focus on the misunderstandings.
Abortion Law Misunderstanding #1: Roe v Wade Legalized Abortion and Revoking It Will Ban Abortion Everywhere
So, first of all, Roe was partially overturned and thrown out in the subsequent Casey ruling to begin with in a large part. But, allowing that it’s still a major case as was Casey, what people seem not to grasp is that neither case is legislation. The court cannot pass legislation, and when you actually read through Roe and Casey, they were not grounding the argument in any legal analysis or Constitutional analysis. They made things up, crafted vague arguments, and were generally playing the part of legislative body, not judicial body. This in and of itself is reason enough for Alito’s statement that it must be tossed out, though it wasn’t the only reason he gave. I would encourage everyone to read through the leaked draft in its entirety because Alito lays out a superb explanation of why Roe and Casey must be overturned. However, neither legalized abortion. What they did was deny states the right to decide. There are no federal laws on the books forcing all states to comply to a standard. Everything has been done, unconstitutionally, through activist judges who wanted to rule in favor of abortion advocates and found a way to do it. Even many major legal scholars who agree with abortion find the case to be a trashy piece of judicial work, though they would love to see it passed as actual legislation. Law
However, even were it not garbage on a legal and Constitutional level, Roe and Casey don’t actually make abortion legal across the US. All they did was set a standard on how restrictive states could be on the issue, and that standard moved all over the place on no scientific basis at all. Casey muddled those rules even more than Roe did.
So what does it actually do for the court to overturn Roe? It returns the power to the States. It has no power to ban abortion because there’s no federal law that bans it, and as such, the States decide. Some, like California, New York, and Colorado will allow it literally up to the moment of birth. Others like Texas and Florida will ban it outright. A few states have legislation that will kick back into place to ban it entirely if Roe is actually overturned, but note that legislation, unlike court decisions made by unelected judges, can much more easily be changed and reversed if the residents of the state dislike the law. Politicians can be voted out and new ones more receptive to the will of the majority in that state put into power to enact the will of the people. Most states will fall somewhere in the middle of the two extremes, regulating it more heavily or loosely based on what their constituents actually want. As much as, on a moral level, I would like for abortion to be banned (recollecting that I exclude the ectopic pregnancy and removal of a miscarried baby from that mix) in every State, that isn’t what will happen and each State will decide for themselves what to do.
This brings me to my next point: federalism.
Abortion Law Misunderstanding #2: How can banning abortion equal less federal government or smaller federal government?
This one stems directly from a conversation I had with someone on Twitter and from questions I’ve seen people asking those like Shapiro who advocate that overturning Roe v Wade is returning to federalism and less federal government control. It operates on the misunderstanding about Roe that was explained above and an inherent misunderstanding of how federalism works.
Federalism is a system by which certain powers are vested into a central government and the remaining powers are granted to state and local governments. In the US, this is regulated and determined by our Constitution, which states outright what the federal government can do and makes clear a few specific things they cannot while ending with the note that anything not mentioned is power held by the States’ governments, not by the federal government. With that definition, it should be fairly clear how overturning Roe v Wade means a return to federalism in this area. First of all, overturning Roe does not ban abortion country wide as those asking this question presume. Second of all, by overturning Roe, the Supreme Court is saying that it isn’t an issue that the federal government has a right to handle. They are fixing their initial error in weighing in at all and returning the decision to the individual state governments where it rightfully belonged since the Constitution does not give any power over the issue to the federal government, period. When power is removed from the federal government when it has been wrongfully assumed and given back to the States where it belongs, this is a restoration of the federalist system we had originally. It also means less federal government control. For those asking about this issue, state and federal governments are not the same. The state is not meant to be an extension of the will of the federal government. They are meant to answer directly to “We the People” even as the House of Representatives was originally meant to. Senate under the original system did not answer to the people to provide a check on mob or majority tyranny, though that is not how it is anymore, much to the detriment of us all, sadly. Originally, the officials we elected at the State level chose our senators. So we still made the call on who would choose our officials for Senate, but those senators didn’t have to answer to us, which allowed them similar neutrality in weighing new legislation as the Supreme Court is supposed to have in weighing how to handle existing law in light of the Constitution. These days, most State governments go along to get along with the feds, but that isn’t necessarily how it must go, and they do have the right to claim their rights under the Constitution, even if they have surrendered so much of it at this point that every reclaiming of power must land in the Supreme Court as it did here.
That said, the two are still distinct bodies, and the Constitution regulates the federal government, not the State governments. Many State governments have adopted similar protections from the national constitution into their state constitutions, which is good and something that should be the case, but the Constitution regulates federal government, not States. In cases where federal law usurps power that belongs to the States, they can and should be standing up and saying no, as Florida frequently did during the pandemic on matters of how they would run their own State in matters unrelated to the powers enumerated to the federal government. If people dislike how things are being run, then, they have direct control over all but a handful of issues as it is much easier to replace state officials than to replace national ones. This is how federalism was meant to operate, and until Lincoln stepped outside of the powers granted to the federal government and used loose and illegitimate reasoning to justify launching a war because he was unwilling to let the South leave, state rights were strong and alive, just as federalism was. Lincoln’s choice to launch a war because the North didn’t want to lose the benefits of having the South (it became about slavery only after he was losing in the upcoming election and losing support from the Northerners for continued war) began the end of federalism and State rights as the Founders designed them.
Federalism allowed the Founders to pull together a vast array of colonies with differing lifestyles because it allowed New England to live like New England with rules and laws they preferred for everyday life and Virginia to live as Virginia pleased. The polarization then was no less sharp than it is today on a wide variety of issues. The system would afford us the same peace as it would allow California to operate as Californians prefer and Texas to operate as Texans prefer. Those who find it truly unacceptable can move from one state to another, something which has already been occurring in massive numbers both in places like California and New York and in states like mine (Illinois) that share the same sorts of policies but get less of a limelight. Those who like the policies move in. Those who don’t flee in droves. It all sorts out in the end.
There will always be a number of people unhappy with how things are run in their State. No one will ever be happy about everything, and it is impossible to please everyone. But in general, most of us can choose which states we’re willing to live in and whether we want to leave our own state on the basis of its enactment of policies we dislike or find odious. That’s federalism in action, but such liberty is impossible if the federal government steps in and dictates from above what all of us will do. Such a system is untenable for such a large country with so many varying opinions and beliefs, particularly if we wish to maintain liberty for both groups to live in peace with a government they are generally satisfied with. The Founders knew that, and it’s why they didn’t attempt it. If they didn’t attempt it with thirteen little colonies, what makes us think we should with fifty states and millions of people?
Abortion Law Misunderstanding #3: The Court Can’t Reverse a Ruling like This! What about stare decisis?
Wrong. There’s really not a simpler way to put this. This is just wrong. They absolutely can, especially if the decision was a horrible one with zero legal basis as Roe v Wade and Casey were. The court never had the power to weigh in on this issue to begin with, and that would’ve been the correct response to it way back when Roe was decided: sorry, not our problem; make your own decisions, States. That is the appropriate response now, and it was the appropriate response then. Further, while the court usually does honor past precedent, there is no law demanding that they do, and given that they’re an unelected body of officials who are as prone to human error as well as activist games as any other politician, we wouldn’t want them to be unable to reverse a bad decision. Usually, they weigh very carefully whether to do so, especially if it would cause a lot of trouble to do so now.
For example, this is why Alito made it so clear they weren’t going after gay marriage rulings. If they reversed those and gay marriage suddenly became illegal in all but the few states that had legalized it instead of banning it before federal government stepped in, then suddenly all of the individuals holding state certificates would be subject to great legal penalties and difficulties. There is no way to avoid those.
In this case though, as Alito also makes clear, there is no such difficulty. A woman can decide now that she wants to get pregnant just as she can decide now to go to a state where it’s allowed and have an abortion. She could even have one now in states where legislation would prevent it after the court’s decision. It is not like contract law or marriage laws where a great deal of planning and permanency is involved and cannot be easily reversed or ended without severe consequence if laws are changed.
These considerations are looked into carefully when the decision to overturn past precedent is on the table. In this case, there is no such trouble, so overturning it and returning power to the states, while it might create political upheaval for now, will in the long run allow more freedom for each state and its constituents to decide what they want to do, which will ultimately take this issue out of the national limelight just as it should’ve been all the way back when Roe was initially being decided. It is not a federal issue, and stare decisis is not a law, nor should it be applied to cases with zero constitutionality, zero legal basis, and zero rationality for existing.
Wrapping Up
In the end, whatever your personal stance on the morality of abortion, this is not a federal issue. The court is making the right call to reverse Roe and Casey, but doing so doesn’t mean that abortion is suddenly illegal everywhere. It isn’t the apocalypse, those of you on the Left. You’ll still get to keep it in states you run. Lawmakers on the Left just won’t be able to force it on the states who are majorly populated by those opposed to it on the basis of a irrational, dreadful piece of court-made pseudo-legislation. It will become something that We the People actually decide, so we’ll find out if it’s really something so many people support. If it is, those of you whining about it will have your way anyway because the people will remove the lawmakers who try to enact legislation like that in Texas, Florida, and Ohio. They’ve done it before with other issues, and they can do it again. If you’re wrong, then it means you can keep living with your “sacred right of abortion” in your states while the rest of us will ban it or fall somewhere on the spectrum based upon what the state’s constituents actually want. Whether any of us love the outcome in our state or not, it will result in less federal government top-down control and more control for the majority in each state. That cannot fail to offer more peace by allowing each state to decide how they want to live with regards to this issue, and I hope to see the court hold firm on this ruling in the final draft.
If you want to read more on the issue, you can find Alito’s draft of the majority opinion from Politico. I found it extremely informative and an excellent review of the actual precedent outside of Roe and Casey for such a decision. It examines the precedent that Roe and Casey should have looked to and failed to as well as the constitutionality of the abortion debate on a federal level and is well worth your time despite the length.