As we all know, Justice Sotomayor claimed she detected the "stench" of politics in oral arguments in Dobbs v. Jackson Women’s Health Organization the other day.
Something does in fact stink, and powerfully so, but what's really going on here. Let's look at the claims, and the reality.
- The Supreme Court is going to overturn Roe and wipe out a "constitutional right".
No, it isn't.
It may overturn Roe, but everyone pretty much agrees that the court just made it up back in 1973. More specifically, the Supreme Court itself, in Roe, acknowledged that the Constitution never mentions a "right to privacy", which is what it based its decision on. It went on to find that even though a right to privacy was never mentioned, other cases had implied one existed, but it went on itself to find that the right wasn't absolute.
The court then went on to actually discuss when life begins, noting that there were different positions on that. The court actually criticized Texas for adopting one theory, and then went on to basically adopt one itself. The decision was, right from the onset, internally inconsistent and bound to fail sooner or later.
Anyhow, if the Court fully overrules Roe, it doesn't mean that it wipes out any Constitutional right. Rather, it returns to a position of neutrality on this topic.
That would, seemingly, perhaps, maybe, wipe out a made up "right of privacy". Or not. It might just state that the Court doesn't know when life begins and therefore has no opinion on how to balance a right to life vs. a right to privacy.
- Overruling Roe makes abortion illegal.
It does no such thing.
Rather, it means the people, through their legislatures, can decide the legality of it.
- But that tramples on the rights of women.
Not, it merely means, once again, that this returns to the voters.
Women outnumber men in the American population and vote at a slightly higher rate.
Seemingly missed in all of this is that when you see people arguing to outlaw abortion, there tends to be more women than men in the crowd. If this is a "woman's issue", lots of women seem to want to outlaw abortion.
This is a persistent failure of logic in the discussion of this topic by the press. The press discusses state legislation as if the 19th Amendment doesn't apply, and only men are going to have a say. There may be more male legislators in the US than female, but the era in which men control politics is dead and gone.
Every four years the big parties wring their hands in angst about how "suburban women" are going to vote, because they vote, and their votes alone can swing an election. This is true in this case too. States that are posed to outlaw abortion aren't doing it because Joe Six Pack is going to get up from his easy chair and stop watching the Packers to go vote on this issue. Women have been and are paying just as much attention.
- So what's this really all about?
That's simple.
The left wing in American politics, or the "progressives" if you prefer, are anti-democratic. The extreme right wing is becoming anti-democratic too, but hat doesn't impact this issue.
Progressives prefer rule by let wing elites who decide what people should and shouldn't believe on social issues. They know that average people tend to be fairly conservative by default, as that's basically the human norm. So, to remake a society along "progressive" lines, by which is meant a genderless, childless, cultureless society, you have to force people into it, as they won't go there themselves. Left to their own, they'll have a messy culture that includes lots of nasty social norms like male/female marriage, families of varying sizes, and cultures that have distinct beliefs.
You just can't have that sort of thing.
Isn't that a bit harsh?
Well, yes, but it boils down to that. As there are more women than men, and women vote at a higher rate than men, if this was really about legislatures unfairly depriving women of access to abortions, it would be rather simply solved at the ballot box.
- What about stare decisis?
Stare decisis is the doctrine that we close the door on certain things, right wrong or indifferent, once they are decided.
This is the one argument that the pro Roe forces have, as it's been in existence for fifty years now. But it's been opposed and argued to be wrong the entire time, certainly showing that it isn't a "matter decided" in the mind of the public.
And that argues against accepting it as "super stare decisis", so to speak. If the Court gets something really wrong, and it has in the past, that's not really an argument for keeping it forever.
- So what stinks, then?
Well, Roe v. Wade itself, really.
But not just that, an entire body of cases that were just made up, and they include some within the past decade, aren't respected as they're made up. That's what stinks.
When justices cease being judges, but Platonic counsel of super wise men, they flunk their jobs and keep problems around forever.
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