It’s abortion ethics overload here again, and with it, an embarrassment of rich Comments of the Day on the topic. Several more are on the way; I just picked Humble Talent’s comment first because I located it first. As with all of the excellent posts on the topic, part of my concern is to keep the focus on ethics rather than politics. The ethics and politics collide unavoidably on this issue, however, particularly on the special role of the Supreme Court in a democracy.
This vital detail appears to be what the Dobbs critics (as well as the previously hysterical decriers of last week’s decision upholding the second Amendment either never learned in school or deliberately ignore when a decision comes down that they don’t like.
SCOTUS exists to make sure that our government operates within the boundaries of its founding documents and that its constitutional laws are clear, consistent, and within settled norms. It is not a “democratic institution,” but the part of the government plan designed to ensure that the democratic institutions within the other two branches don’t allow popular will and pressures to abuse the core principles that nation was founded to embody.
The furious attacks on the Court for doing exactly what it exists to do are dangerous and corrosive. When I was just a little bitty ethicist, it was the Right that engaged in this practice in response to the Warren Court’s judicial activism. That court, stocked with some of the finest judicial minds of the 20th Century (Black, Harlan, Brennan, Stewart), used the power of the bench to make some crucial course corrections, notably Brown v. Board of Education. Though some of its opinions were literally legislating (composing the Miranda Warning is an egregious example), the Warren Court was the bright side of activism, but also demonstrated the dangers of the slippery slope. For the Burger Court with succeeded it was neither as strong in judicial wisdom nor as prudent in its choice of perilous territory. The Roe decision was the result, a badly reasoned opinion by one of the Court’s most glaring mediocrities (appointed by Richard Nixon), Harry Blackmun. The majority opinion manufactured a Constitutional right that didn’t exist, its members giddy from the exhilaration of Sixties-era rebellion. It snatched the issue of abortion away from the legislatures and the voters who elect them. Roe was an abuse of SCOTUS power, but because the opinion was popular, especially with women—though not with lawyers capable of evaluating it objectively—there were not many opportunities to overturn it. Soon it seemed to have lasted so long that Court tradition would guarantee its survival. Since abortion was now a “right,” though a manufactured one, abortion fans saw no need to fight for what should have been their objective all along: a national law.
That was a serious miscalculation. Ethically, this is the Burger Court’s fault: while we should have been debating a difficult and complex societal problem, women’s rights activists felt it was enough to blur the issue with lazy, deceitful talk of “choice,” making abortion foes out to be male chauvinist pigs who wanted women barefoot and pregnant in the kitchen. Ethics evolves, however, and the sheer weight of millions and millions of post-Roe aborted nascent human beings, combined with the realization that there was more being killed than just a “clump of cells,” inevitably led the Court to reconsider a terrible opinion. In the meantime, the American Left had increasingly sought to rely on liberal judges to accomplish what could not be achieved with an increasingly conservative citizenry. In other words, they abandoned democracy as their favored means of societal change. That was unethical, but to be fair, the abuse of judicial power tempted them.
Here is Humble Talent’s Comment of the Day on the post, “Note On The Final Dobbs Opinion.
The ethical principle involved is “competence,” as well as accountability, arrogance, hubris, and hypocrisy.
***
Maybe it’s time to actually legislate Democrat priorities instead of relying on judicial activism.
Let’s be real: There is no constitutional right to have an abortion. Literally anywhere. This ruling, whether you’re pro-life or pro-choice, is absolutely legally sound. But that doesn’t mean that you cannot have a right to an abortion: The legislature could make one. Hell, if you wanted a *constitutional* right to abortion you could make an amendment specifically for it. Relying on a shitty SCOTUS ruling for so long was, not to put too fine a point on it, retarded. Cripplingly stupid. Lacking any understanding of the situation.
Which is the abject failure of Democrats over the last 50 years: They figured it was settled. Which was stupid because ever since Roe passed, it has had detractors from every conceivable angle. Something like this was inevitable. But it’s hard to change laws, I’ve laid this out before, the system was designed to give the most people the ability to say no as possible, because if you’re going to make changes to the American system of governance, it ought to be relatively uncontroversial…. But there have been points, as recently as 2008, where Democrats had a supermajority…where if they had really wanted to, they could have codified the Roe standards in law, so that Roe couldn’t be overturned by an eminently proper SCOTUS ruling, and there would be nothing a Republican could do about it without a supermajority of their own, and that supermajority has not existed since, and even if it did, for every Joe Manchin out there, there’s a Collins, Murkowski or a Sasse.
But they didn’t. We could discuss ad nauseum why they didn’t…. It could be like I said earlier and they thought (foolishly) that Roe was settled, maybe they didn’t believe Republicans would actually do what they said, because some percentage of politics is performative. Maybe they thought that actually codifying Roe and forcing a vote on abortion would cost them votes. I don’t know. I don’t care. It doesn’t matter. They. Didn’t.
Take this for the lesson it is: Live by the Sword, Die by the Sword. What is put into existence with pen-phonery can be removed with pen-phonery. What is written into the Constitution via a SCOTUS decision can be removed via a SCOTUS decision. And to be real, my legislative suggestion is not the be all end all: What is written into law can be written out of law. But it’s hard to get laws passed federally, and it’s a safer storage of liberty, if you want to call it that, than a SCOTUS majority. Rights aren’t a battle that you win and go home happy with. Once the heavy lifting is done and the right exists, it still needs protection, because there is always someone willing to chip away from it until the right is either warped out of recognition or just straight up gone. And so if you feel really strongly about the right, you ought to give it as much protection as you can.
You won’t win every time. But maybe you’ll save yourself from getting blown out like this.
Ethics Alarms 
I missed this post earlier. It’s a well-earned COTD.
And “pen-phonery.” As a writer, I’m in awe.
writer, not writet
Oh! I thought writet was a light-hearted writer…
Appreciate the edit.
(In his best Obama voice) “I have a pen, and I have a phone, and if congress won’t act, I will.”
You may rest assured that I got the reference.
O was disappointed that “I have a pen” didn’t get the same praise as “I have a dream…”
Heck, it got him a Nobel prize.
Actually, the act of getting elected got him the Nobel Prize. The pen-phonery came later.
Excellent post. I do have one question. Does this decision even allow for a national law? Under what authority would Congress cite as an authority to usurp a state’s decision making right? It seems to me that the Federal government does not have legislative authority on this issue.
My thought as well. The court has stated it goes to the states — I don’t think they would accept a federal law.
Now, if Congress had passed such a law 13 years ago, would that have changed the political calculus? Would they Court have accepted it as they did Obamacare (which I think was another bad decision)?
Guess we’ll never know. Which actually helps make HT’s point.
I’ve seen mixed reviews on the viability of a federal law. I’ve been pretty clear that I’m a layperson to the law, perhaps I only know enough to be dangerous…. But it seems to me two things:
1) The left has never been particularly concerned with the constitutionality of their legislation, and the same people assuring me that a national abortion law would be dead on arrival told me that the ACA wouldn’t pass the first challenge. Yes, the court is different now, and yes, the law might fail, but if rights are important, like I said, you ought to offer them as much protection as possible, and the question of whether or not there was a constitutional right to abortion is different from whether there can be federal regulation of abortion. They didn’t even try.
2) The legislature has more tools than SCOTUS, or at least it’s supposed to. Schedule drugs were banned in America for almost a century on the auspices of the commerce clause. Again… I’m a layperson, so people more informed than I am could continue the conversation, but I think that a lot of the issues that we’re having right now stem from the legislatures’ inability to actually perform their duties, instead shoveling off their jobs to bureaucracies, the executive or the judiciary. They have more power then they’ve trained us to believe they have.
At the end of the day, maybe I’m wrong, maybe the only two answers were a constitutional amendment (which wasn’t attempted), or state laws (which they approached without any amount of gusto). I’m sure time will tell because the Democrats seem bound and determined to lose as many seats as possible coming into 2024, and it wouldn’t surprise me if Republicans had the seats to try to pass the inverse. Who will make what argument then?
An excellent comment. To build on it, though, what seems to have been forgotten in this fight is that the United States is not, and was never intended to be, a pure democracy, where anyone could do anything he had the votes to do. Ours is a government of enumerated powers. If it is not an enumerated power, Congress and the states can’t simply do it with a popular vote. The Court, as I talked about at some length during the Kavanaugh hearings, was never intended as a Politburo for one party or the other that would be that party’s ultimate weapon to achiever what it couldn’t at the ballot box. It was also never inteneded as the final word on every aspect of American life, its rulings forming a kind of secular Bible that all had to abide by. No branch of gpvernment was intended to be the final word on every aspect of life in this country, and really no law or document save the Constitution was ever intended to be the final word on anything.
The problem is that few are content with having certain things malleable. As the difference between right and left has become more and more pronounced and politics has seeped into nearly every aspect of life, we find ourselves more and more in a situation where each side wants things to “evolve” only until they reach the place that side wants them, then to be frozen there under the doctrine of stare decisis.
Like it or not, America is not Anatevka, and it’s not possible to have uniform rules about all aspects of life that no one questions and that tell everyone who he is and what is expected of him in life. That’s not what it was designed to be and that’s not what anyone wants it to be…or is it? The left appears to be perilously close to that mindset as some of its advocates almost become self-parodies. But that brings us back to the point I have made again and again that the left wants a monopoly on everything. Now their monopoly on the courts is broken, and I think this is just the start of the breaking of that monopoly and attempt to build a one-party state.