Did the Supreme Court Just Trigger Economic Civil War and, Potentially, Expand Overall Access to Abortion?
Be Careful What You Wish For is a 2600-year-old admonition ascribed to Aesop, of Aesop’s Fables. The Supreme Court’s 5-4 decision to overturn Roe v Wade and, thereby, revoke, as President Biden properly put it, “a Constitutional right” has, it seems, far-reaching and dire consequences, not just for its proximate victims, but for the nation as a whole. It may also backfire on its ardent advocates. Indeed, it could lead to more abortions nationwide.
Before raising these issues, let me react to the Court’s majority judgment. I’m not a legal scholar, but I searched the Constitution for the words “original intent.” They don’t appear. Yet original intent belies Justice Alito’s opinion. Six sentences into his judgment, Alito tells us that the Constitution doesn’t mention abortion. We are, then, effectively told to follow Alito’s judicial philosophy and intuit the views of those who wrote the Constitution.
This is quite a stretch. Did the framers have original intent about, say, internet privacy? And if they had original intent about original intent, why didn’t they put that down in black and white? If the Constitution is mute on abortion and can’t, therefore, endorse it, it can’t endorse the application of original intent on which it is equally mute. Unfortunately, consistency is not Justice Alito’s strong suit. Instead, his opinion, in my opinion, represents judicial activism masquerading as judicial conservatism. Alitoism is decent coinage here.
What does appear in the Constitution is the Tenth Amendment.
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.
Powers not delegated to the federal government clearly include the power of people — not of states, towns, cities, or neighborhoods — to make inherently private/personal/people decisions, such as whom to marry, whether to practice contraception, and, yes, whether, within reasonable limits, to end early-stage pregnancies. The Tenth Amendment, reasonably read, leaves abortion up to the individual and since individuals are not defined by their state of residency, reasonable limitation of abortion rights in respect of the rights of the unborn are inherently within federal, not state jurisdiction. This was, effectively, the status quo before Alitoism took precedent.
Back and Dark Alleys
Revoking Roe vs Wade will further polarize our deeply divided nation. Indeed, worst-case scenarios are possible. The extremists who delivered us to this dark place seek real, not pyrrhic victory. Nightmare scenarios of, say, fugitive-pregnant-women-bounty-hunters, guns drawn, forcing women to take and fail pregnancy tests to cross state lines can’t be dismissed.
This is the 1857 Dred Scott Decision all over again, with Samuel Alito subbing for Chief Justice, Roger Taney. That decision — that slaves were not free citizens even if situated in free states and of native birth — also relied on original intent and historical context. It gave slave hunters carte blanche to recover “property” that had escaped to free soil. Will pregnant-women hunters from Mississippi be free to rescue unborn fetuses by abducting Mississippi residents entering abortion clinics in Maine?
The Dred Scott decision was hailed by the slave states, but met with deep revulsion in the free states. It was a proximate cause of the Civil War. Hence, it was a decision that the South should never have wished for.
Potential Economic Backlash
Short of the Massachusetts National Guard clashing with the Tennessee National Guard over “abducted fetuses,” the Alito decision will likely lead to an economic boycott of anti-abortion states with draconian provisions. Texas is a prime target. That state just charged a 26 year-old woman with murder arising from self-induced abortion. Nationwide companies will face enormous pressure from millions of their customers to stop doing business in states that criminalize abortion or the provision of assistance to those seeking abortion. The boycott will extend to travel in draconian abortion states and the purchase of goods produced in such states.
The economic pressure could, over time, lead pro-life states to decriminalize abortions and look the other way when it comes to state residents obtaining abortion pills in the mail. Indeed, it’s not clear that local or state police are now legally permitted or will ever be legally permitted to inspect our mail even if its contents could be used to terminate a pregnancy.
In short, those seeking abortions in states that deem it illegal may increasingly decide to self abort and easily obtain the means to do so. Moreover, states that make abortion legal may permit the practice beyond what has been the federal time limit. And pro-choice organizations will surely actively assist those in anti-abortion states to reach abortion clinics in states where abortion is legal.
Ironically, the end of Roe could, over time, spell more, not less abortion nationwide. But the short-term picture is clear. The ruling will cause grave injury to millions of woman in states banning abortion, particular those of limited economic means. As for Samuel Alito, his name will forever be linked to that of Roger Taney.