The statue Authority of Law on the steps of the U.S. Supreme Court. Picture Credit: Chip Somodevilla/Getty Images

Overthrowing the kritarchy

The overturning of Roe v. Wade would be a victory for democracy

Artillery Row

American progressives lionise judges out of an abundant faith in rational intellect and a deep suspicion of democracy. The judge, a philosopher king in robes, fits the Platonic ideal of a learned mind applying reason to the great questions of the day. More importantly, the judge is a bulwark against the mob, whom progressives fear and loathe as fickle, ignorant and ethically uncouth. 

Roe had a scarring effect on US politics and society

This is why progressives since at least Woodrow Wilson have expressed impatience with the US Constitution, with its stubborn checks and balances on enlightened idealism and its implementation through the administrative state, not to mention its reservation of altogether too much power to the states and the people. This background is important for understanding the raging, terror-drenched mania emanating from Progressive America. Politico has obtained a copy of a draft Supreme Court opinion in Dobbs v. Jackson Women’s Health, a challenge to a Mississippi law limiting abortion to the first fifteen weeks of pregnancy or “in a medical emergency or in the case of a severe fetal abnormality”. 

The opinion is authored by Justice Samuel Alito, a George W Bush appointee who is a textualist, somewhat of an originalist and generally referred to as a conservative. No one familiar with Alito’s judicial approach will be surprised to learn that he finds nothing in the Mississippi statute that offends against the US Constitution because, as he writes, “the Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion”. However, the reason for the progressive meltdown is four words at the top of the draft: “Opinion of the Court”. 

Alito is writing for the majority. A majority of justices on the US Supreme Court is preparing to overrule Roe v. Wade, the totemic 1973 decision asserting a constitutional right to procure an abortion. Welcome to Armageddon. 

Abortion’s supporters placed their trust in the judges

Roe is the crowning achievement of American kritarchy, in which liberal, well-meaning Nixon appointee Harry Blackmun invented out of whole cloth and good intentions a right that plainly did not exist in the Constitution. As Alito writes, Roe “concocted an elaborate set of rules, with different restrictions for each trimester of pregnancy, but it did not explain how this veritable code could be teased out of anything in the Constitution, the history of abortion laws, prior precedent, or any other cited source”. The rules enumerated in this judicial power grab, Alito observes, read “much like those that might be found in a statute enacted by a legislature”. 

Of course, Roe was enacted by a legislature, the supreme parliament of nine lawyers at One First Street, Washington DC. America’s ruling ennead later revised Roe in 1992’s Planned Parenthood v. Casey, a split opinion that retained Roe’s central holding (“viability marks the earliest point at which the state’s interest in fetal life is constitutionally adequate to justify a legislative ban on non-therapeutic abortions”) but ditched the trimester system in favour of an ill-defined “undue burden” test. Alito’s opinion also overrules Casey. 

Roe had a scarring effect on US politics and society and there is every reason to suppose that its toppling would carve fresh wounds into the American culture. Just as Blackmun’s judicial arrogation of legislative powers and democratic preference poured jet fuel on the culture wars of the day, Alito’s reversal could well explode the tinderbox that is US public life in 2022. And because American culture is in large part Western culture, the reverberations will reach these shores and others, albeit culturally rather than judicially. There will be a lot of talk, and a lot more shouting, about wire hangers, back alleys and Gilead. In the US, more calls will go up to pack the court and lots of otherwise sensible people will say lots of very unsensible things. 

This is all to be expected with a matter that goes to the very fundamentals of morality and autonomy. It is exactly why supporters of legal abortion should not have thrown in their lot with Roe and Casey. Alito’s opinion quotes his late colleague Ruth Bader Ginsburg, a liberal feminist icon, who nonetheless recognised that Roe “halted a political process that was moving in a reform direction and thereby, I believed, prolonged divisiveness and deferred stable settlement of the issue”. 

Abortion’s supporters placed their trust in the judges because it was quicker and easier than convincing the people. Now the judges look set to betray them where the democratic process could have protected them with its slow pace, compromises, competing priorities, vulnerability to public opinion and susceptibility to lobbying. What the philosopher king gives the philosopher king can take away but with democracy there’s at least a fight. Alito quotes another late colleague, Antonin Scalia, on this very point: “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting”. 

Since there will be a lot more heat over Alito’s opinion, it’s worth shining a little light. Were the Supreme Court to overturn Roe and Casey, it would not make abortion illegal in the United States. It would simply permit each state to do what they did prior to 1973: regulate abortion in whatever way the state legislature or the voters see fit. 

It may not be the cataclysm progressives perceive

Highly conservative states would heavily restrict or, in some cases, ban abortion outright; highly progressive states would (and some have already begun to) legislate very liberal access to abortion; other states would cut a path somewhere down the middle. It’s also worth noting that 54 per of abortions in 2020 were achieved using an abortifacient such as the mifepristone-misoprostol combination, rather than by surgical procedure. (In the UK, the figure is 82 per cent.) States could of course prohibit foetus destruction altogether but banning physicians from prescribing drugs — especially where those drugs are to be taken in the home — might prove a harder sell in even some red states than outlawing the physical act of terminating then removing a foetus from the womb in a clinic.

Supporters of Alito’s draft ruling will lean heavily on its caveat that: “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” It’s the sort of cabining line that gets included in Supreme Court opinions when a justice is trying to coax four of his colleagues into making his opinion the majority. It’s also more than a little disingenuous. If judicially invented constitutional rights are to be tossed out, and the Fourteenth Amendment’s due process clause doesn’t stand in the way, what of Griswold v. Connecticut (right of married couples to buy and use contraceptives), Eisenstadt v. Baird (right of unmarried couples to do the same), Lawrence v. Texas (anti-sodomy laws are unconstitutional), and Obergefell v. Hodges (marriage may not be restricted to male-female couples)? All rely on essentially the same legal principle as Roe.

Alito’s opinion is still a draft and whichever justices have indicated they will join it can still change their minds. That is probably why the draft has been leaked, an unprecedented act in an institution that values process and its ability to rule on cases and controversies free from the fusillades of political and public opinion. That will not be the case this time. The Court, and especially those justices most likely to have expressed sympathy for Alito’s interpretation (Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett), will now be subjected to an unrelenting campaign of intimidation and vilification by Democrats, the media, academics and other progressive activists. There is still a chance that at least one of them might cave to save either themselves or the Court from character assassination. 

Even if Alito’s opinion does away with Roe and Casey, it may not be the cataclysm progressives perceive. A conservative Court dealing such a severe blow to the progressive psyche could galvanise left-leaning voters in this November’s midterms, possibly turning a predicted Republican triumph into something more favourable to Democrats. That could give Democrats an advantage at the state level, where post-Roe abortion laws would be written, but also afford them continued control of Congress and the opportunity for some legislative creativity at the federal level to help secure a future for legal abortion in even the reddest states. The rewards of democracy are richer and riper than the scraps doled out by any philosopher king.

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