The overturning of Roe v. Wade, and thus of a woman’s supposedly constitutional right to an abortion, was expected, but that doesn’t make it any less historic.
Constitutionally and judicially speaking, we conservatives view this action as the righting of a gross wrong that was committed by the high court in 1973 when it decided to manufacture the concept of abortion rights, or rather to pull it out of thin air.
We are, first and foremost, a federal republic, and, properly speaking, the ONLY part of the Constitution that impinges on the issue of abortion is the Tenth Amendment, which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Pretty simple, really: Abortion is an issue that ought to be in the hands of the people’s elected representatives, and it ought to be decided at the state level. And now it will be again. That’s all to the good.
Practically speaking, this decision will lead to many states enacting restrictions on abortion, and even outright bans. On the other hand, as we’ve already seen, many states, localities and corporations are taking steps to ensure that no woman will be denied her “right” to terminate a pregnancy.
There are plans afoot to subsidize women’s travel to states where abortions are legally performed and to pay for the resulting abortions. Can states criminalize the behavior of women even if their receipt of abortions takes place outside of their jurisdiction? If they can’t (or won’t), it’s possible that the number of abortions in America might actually increase in future years, because the left will create a vast infrastructure to encourage the practice. Ergo, anyone who assumes that “life” is now secure should think twice.
It’s also prudent to reflect on the political fallout from this decision. Will Dems ride the furor over abortion rights to victory in 2022? This seems doubtful. Public attitudes on abortion are murky, at best, and the Dems would be wise not to overplay their hand on the issue.
In a more long-term sense, however, decisions like Dobbs will strengthen the hand of those Democrats and progressives who assert that the Supreme Court, as an institution, has become “right-wing” and has thus lost its legitimacy.
Maxine Waters says, “The hell with the Supreme Court, we will defy them.” Keith Olbermann was calling for the abolition of the Supreme Court the day before the Dobbs ruling, in reaction to the court’s decision to strike down a gun control law in the state of New York.
“It has become necessary to dissolve the Supreme Court of the United States,” according to Olbermann. Failing that, he advises progressives simply to ignore the Court’s rulings: “Hey SCOTUS, send the SCOTUS army here to enforce your ruling, you House of Lords radicals pretending to be a court.”
The fact is that such voices of scorn and defiance are becoming more normative on the left, as frustration mounts with a federal judiciary that is behaving more conservatively than at any point in human memory. It is by no means inconceivable that, as Olbermann suggests, a blue state could defy SCOTUS. It is also depressingly plausible that, at some point in the near future, the executive branch might do so.
Conservatives would be outraged, but the likelihood is that Democrats would be unfazed, because, to them, “democracy” means getting their way, period.
And, as Olbermann so perceptively indicated, the Supreme Court has no practical means of enforcing its decisions, except the hitherto near-universal compliance that flowed from the prevailing assumption that its rulings are legitimate and decisive. In a nutshell, therefore, any political advantage that the right possesses because of the current composition of the Supreme Court and other federal courts is fragile, especially so in any age when none of our institutions are respected as they used to be.
The $64,000 question now is: How far right does SCOTUS need to go before the entire Democratic Party, and its standard-bearer, President Biden, endorse a strategy of undermining it? Indeed, have we reached that point already? And, if so, will the Democrats and progressives arrogate to themselves the court’s powers gradually, or all at once?
We may learn the answers to these questions sooner rather than later.
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