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Tags: rights | constitutional | roe | wade

Political Climate Ensures Unending Abortion Controversy

roe versus wade abortion controversy legalities

Paul F. deLespinasse By Tuesday, 16 July 2019 02:23 PM EDT Current | Bio | Archive

Abortion is a can of worms. In my 1981 college textbook, I devoted a few cautious paragraphs to it. But since then I have avoided the subject except for observing its importance in the 2016 presidential election.

Public opinion about abortion divides largely into two camps One camp seeks every conceivable argument for overturning Roe v. Wade (1973), which held that most laws against abortion are unconstitutional. The other camp defends that decision without worrying about whether the Court's arguments made constitutional sense.

Abortion will again be an issue in 2020. Since I belong to neither major camp, let me share a few thoughts about this vexing issue.

Are abortions immoral? If they aren't, then why should they be outlawed?

But let's assume arguendo (for the purpose of discussion) that they are immoral.

Even if abortions are immoral, this wouldn't necessarily mean they should be illegal. Even actions that are inherently immoral may sometimes be the least bad option available under the circumstances. Such actions shouldn't be outlawed.

The Catholic church considers abortions sinful. But St. Thomas Aquinas, the great Catholic philosopher, pointed out that the social costs of outlawing all sin may exceed the benefits of doing so.

Government, with limited resources for enforcing laws, can easily spread itself too thin. It must therefore concentrate on preventing actions that destroy all possibility of civilization and human fellowship.

Under today's unfortunate circumstances, with rampant sexual promiscuity, outlawing abortion would probably increase the total amount of evil in society and make American circumstances worse. Without abortions, more and more unwanted children would be brought up in underprivileged homes.

And many women might, in desperation, resort to dangerous illegal abortions. As a policy based on social cost-benefit analysis, the Roe v. Wade decision was therefore probably wise.

The basic problem with Roe v. Wade was that policy-making is a legislative power, not a judicial one. The Supreme Court is not supposed to be a policy making body. It is supposed to rule on the basis of acts of Congress and the Constitution. As noted by Justice (later Chief Justice) William Rehnquist in his dissenting opinion:

"The conscious weighing of competing factors that the Court's opinion apparently substitutes for the established [Fourteenth Amendment] test is far more appropriate to a legislative judgment than to a judicial one."

The Court couldn't quite figure out exactly what clause in the Constitution created the right of "privacy" which it claimed laws against abortion violated, or exactly what "privacy" (which is never mentioned in the Constitution) means.

It is no wonder, then, that the "pro-choice" camp has been so worried ever since that the Supreme Court could reverse itself.

Roe v. Wade's impact on political life has not been pretty. The fear or hope that it could be overturned has politicized court appointments. The otherwise inexplicable support by evangelical Christians for Donald Trump — who promised to appoint justices opposed to abortion — may have determined the 2016 election outcome.

The mere fact that Roe v. Wade rested on very shaky constitutional grounds doesn't mean that the Supreme Court will or should overturn it. It is been constitutional doctrine for so long that even justices who think it was wrongly decided could reasonably vote to uphold it as settled precedent under the doctrine of stare decisis.

Still, the Court might overturn Roe v. Wade. For the abortion rights people that would be the end of the world in states choosing to make abortion illegal. Women in those states would still have a choice about bearing children, but they would have to exercise that choice at an earlier time, before becoming pregnant.

Perhaps men could be encouraged to take more responsibility for helping women avoid becoming pregnant. Widespread DNA testing combined with legislation holding father — without regard to their marital status — strictly responsible for helping support their children might help.

Some women might be able to travel to states where abortions are still legal, but poor women who cannot afford to travel would not be able to do this. And poor women are least likely to be able to provide a good home to a child.

It would help if anti-abortion people would support policies assuring that all women (and men!) have access to birth control. The official Catholic church hostility to birth control won't help here.

All in all, abortion remains a political and constitutional mess. Unfortunately our current political climate offers little hope that we can put that mess behind us.

Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published in 1981 and his most recent book is "Beyond Capitalism: A Classless Society With (Mostly) Free Markets." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.

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Roe v. Wade's impact on political life has not been pretty. The fear or hope that it could be overturned has politicized court appointments. The otherwise inexplicable support by evangelical Christians for Donald Trump may have determined the 2016 election outcome.
rights, constitutional, roe, wade
Tuesday, 16 July 2019 02:23 PM
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