Will Roe Be Overturned?

I don't know. I am very reluctantly pro-choice--and that is primarily because especially in the first trimester (the one area where Roe most clearly told the states to butt out), abortion is simply too easy a procedure to perform for a governmental ban to work--especially because there are so many rabid pro-choicers out there who risk jail, and spend their considerable fortunes to fund abortions. The most that a ban will do, unless we do something about the causes of all those pregnancies, is remove those abortionists who are primarily in it for the money. I am sure that there are some in that category--but I would guess that someone who has to wear a bullet-proof vest to go to work on a regular basis is probably motivated by more than just money.

If you want first trimester elective abortions to end (as opposed to merely becoming illegal), some of the enormous moral problems of this country are going to have to be worked out first. We are going to have to substantially improve the moral climate in which kids are growing up, so that they are not sexually active so early. That means that you may not be able to watch R or NC-17 rated movies while the kids are up. (When we lived in California, there were a lot of parents who would watch bloody, gory, and sexually explicit movies with their five year olds in the room.)

It means that we are going to have to find some way to drain the fever swamp of both broadcast and cable television. I am not quite sure how the government can do much in this area. There's an awful lot of trash on the tube that encourages girls to see themselves primarily as sexual objects--and encourages boys to see girls in that same way. But while vulgar and repulsive, it isn't obscene by any standard that the Supreme Court is going to accept. This means that you, as parents, are going to have to let networks know that you do not approve of this crap being on the tube.

It isn't enough, unfortunately, to turn it off in your home. I tried to raise kids in Sonoma County, California, and I began to appreciate the enormous struggle that Orthodox Jews must feel when they move into an overwhelmingly secular community. You can do what you want to be a good example--but your kids are going to go to school with kids coming from majority homes, where Mom doesn't hide the fur-lined handcuffs and porno movies well enough; where drunkenness, marijuana, and crack are common (and in middle class homes).

I was reading an older copy of Newsweek in the gym today, and it reported a survey showing that 16% of Americans wanted a complete ban on elective abortions; 21% wanted no restrictions on abortion at all. The vast majority of Americans wanted a lot more restrictions on abortion, but not a complete ban.

First of all, I suspect that most Americans don't even know what the current laws of their state are. The reason that some states don't have a ban on third trimester abortions is because the legislature isn't willing to pass one. Idaho Code, Title 18, chapter 6, seems, as I read it, to go right up to the bumpstops of what the federal courts will allow the state to regulate--and the partial-birth abortion ban in section 18-613 probably goes beyond it.

Secondly, a lot of Americans are horrified by partial-birth abortion, by abortion for sex selection, and abortion as primary birth control. (I know that for most women, it is not their primary form of birth control--but I pointed a months back to a Los Angeles Times article about an abortion doctor in Arkansas who had adult patients coming in for whom this was their primary birth control method--and some were repeat customers:

The last patient of the day, a 32-year-old college student named Stephanie, has had four abortions in the last 12 years. She keeps forgetting to take her birth control pills. Abortion "is a bummer," she says, "but no big stress."

So what happens if Roe v. Wade were to be either gutted or completely overturned by the Supreme Court?

The decision would go back to the states--and I would expect that such a decision would be very clear that abortions taking place entirely within a state are a state decision. Congressional action would be limited to abortions in the territories, on federal reservations, and perhaps in medical plans funded by the federal government. Otherwise, each state legislature would have to grapple with the problem.

Now, I find it interesting that pro-choice sorts are making arguments that are contradictory--that there is strong majority support for keeping abortion "safe and legal"--and that overturning Roe would be a disaster. Here's one example, from a comment made over at Volokh Conspiracy today:

"what's to preclude Congress from passing laws to restrict or outlaw abortion?"

The fact that the Republican Party would go the way of the Dodo in 90% of America if it tried to outlaw abortion outright.

Of course, if there was really this vast majority in support of keeping abortion available on something like the current terms, then overturning Roe would only change the situation in a very small number of states. It is precisely because a strong majority wants abortion to be somewhat harder to get than it is today that liberals are so twitterpated about Alito getting on the Court.

Now, I am also disappointed to see that liberals are convinced that if the Supreme Court overruled Roe that conservatives would not be content to leave this for the states to handle:

That was a joke, right? You really think that conservatives would not support federal legislation to ban abortions because the prior argument was it should be left to the states?

I think the problem here may be projection. "That which is not prohibited, is required." Liberals have spent so much time convincing themselves that pro-lifers want every woman barefoot and pregnant--if not being tortured on the rack--that they simply refuse to believe that one of the concerns about Roe was that it was Constitutionally incorrect--and that the federal government's job is not to solve every problem.

I've long been concerned that the Supreme Court (or, for that matter, Congress) acting as a superlegislature on state issues is tremendously harmful. I think Oregon's voters made a big mistake with their euthanasia initiatively. I unfortunately assisted in passing California's medical marijuana initiative. (Like a number of Californians, current or former, as I am, I saw the error of my ways within a couple of years.)

Still, the primary responsibility for passing laws that affect intrastate matters lies with the voters of that state. If they screw up, without violating the state or federal constitutions, they have it within their power to correct it.

I look forward to the day when the U.S. Supreme Court will start doing their job again--deciding whether laws passed by the voters or their elected representatives are constitutional--not whether they are good or bad. The "no rational basis" argument used in Cleburne doubtless made the federal judges involved feel good about themselves, because it does appear that the City of Cleburne had no rational basis for that law. That's a very subjective basis for overturning a law--and it leads to judges as superlegislators.

Fifty states as fifty laboratories is an unintended consequence of federalism, and it has worked out generally pretty well. Some states try truly stupid ideas; within a few years, when the idea fails, the legislature can either repeal the law, or its proponents can ask Congress to make the bad idea national in scope (to hide that it failed in one state--as with gun control). Some states try innovative ideas that work--and when they do work, other states copy it (such as non-discretionary concealed weapon permit laws).