Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.
It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “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.”
The above passage is from Associate Justice Alito’s opinion in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. The quote about “citizens trying to persuade one another and then voting” is from Justice Antonin Scalia’s dissenting opinion in Planned Parenthood v. Casey, a 1992 case that social conservatives hoped would lead to Roe being overturned. Thirty years later the Bible thumpers have their wish: Roe is overturned, and the abortion issue has been returned to the states.
I’m no fan of Justices Alito or Scalia, as I find both of them to be sanctimonious shits, but I do agree with them on this: the abortion issue, or any issue that deals with fundamental rights and personal autonomy, should be decided by voters, not by unelected justices with lifetime appointments.
Ever since the Roe decision was handed down on 22 January 1973, politicians of both major parties have used the decision as a political weapon. Republicans used it to grow their party by energizing social conservative zealotry. Democrats used it to grow their party by convincing women that Republican presidents and a Republican majority in the Senate would turn women into second class citizens who would have no autonomy over their bodies. Beginning with the nomination of Sandra Day O’Connor in 1981, every Supreme Court confirmation hearing became a knock down drag out fight over preserving the Roe decision.
What no Senator or Congressman ever did after Roe was to pass legislation that would ensure the right to an abortion, or in the case of the Republican party, pass legislation or a constitutional amendment banning abortion. When it comes to matters of individual liberty or contentious social issues, Congress has essentially abdicated its legislative duty to nine Justices, whom no one elected. And the Supreme Court, which is deciding matters of liberty as defined by the Constitution, is even less representative of American “democracy” than most people realize. Of the five justices who voted to overturn Roe, four (Alito, Gorsuch, Kavanaugh, Comey-Barrett) were appointed by two presidents (George W. Bush and Donald Trump) who lost the popular vote in their quests for the White House. Chief Justice Roberts, who voted to maintain Mississippi’s law that forbade abortion after 15 weeks, but who wrote a separate opinion in which he stated that Roe should have been maintained, was also appointed by George W. Bush, who in addition to losing the popular vote in the 2000 election, became president because of a Supreme Court case (Bush v. Gore).
In addition to the Dobbs decision, in 2022 the Supreme Court handed down a 6-3 ruling in West Virginia v. EPA, which halted the ability of the Environmental Protection Agency’s ability to use the Clean Air Act, which Congress passed in 1970, to curb greenhouse gasses from power plants.
In its ruling stripping the EPA of the ability to regulate greenhouse gasses from power plants, the Supreme Court stated that Congress cannot delegate its legislative duties to an agency such as the EPA. When the EPA issued its regulation on greenhouse gasses in 2015, it relied on a rarely used section of the Clean Air Act. Congress could have amended the Clean Air Act so that it would address climate change, which wasn’t an issue in 1970, but as with the abortion issue, Congress let another body do the heavy lifting.
Who is empowered to run this country?
Article I of the Constitution begins with this sentence:
All legislative powers herein granted shall be vested in a Congress of the United States
What we now have in this country is a legislative body that doesn’t want to legislate. But it wasn’t always like this. In 1895 the Supreme Court ruled in Pollock v. Farmers’ Loan and Trust that a tax on income was unconstitutional, since Article I of the Constitution stipulates that direct taxes, such as an income tax, must be apportioned among the country by population, just as Congressional seats are apportioned. Apportioning an income tax by population was (and is) unworkable, so Congress passed and sent the 16th Amendment to the states for ratification. In writing the amendment Congress used explicit language with regards to levying an income tax, as seen here:
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
Congress has also used its legislative muscle to buttress Supreme Court decisions. When the Court ruled 9-0 in Brown v. Board of Education that segregated schools were unconstitutional, Congress passed the Civil Rights Act in 1964, enshrining anti-discrimination policy into federal law across the country. In 1965 the Voting Rights Act was passed, eliminating racial barriers to the ballot box. In the space of a year Congress used the power granted to it under Article I, but ever since the Roe decision Congress has abdicated the legislative throne to the nine “wise” philosopher kings who sit in marble splendor across the plaza from the Capitol building. We’ve created Plato’s Republic on the Potomac, and we did it without even putting it up for a vote.
Hope on the horizon?
In his concurring opinion in the Dobbs case, Associate Justice Clarence “Handkerchief Head” Thomas wrote that in keeping with the “strict interpretation doctrine” of the constitution, the Court’s decisions that struck down prohibitions on contraception (Griswold v. Connecticut) and same-sex marriage (Obergefell v. Hedges) should be revisited. On 19 July 2022 the House of Representatives voted 267 to 157 on a bill that would recognized same sex marriages at the federal level. 47 Republicans joined Democrats in passing the measure. While it faces an uphill climb in the evenly divided Polish Parliament (aka the Senate), where one Senator can halt passage of a bill, and where 60 votes are needed to even bring a bill up for a vote, the House’s action is an incremental step towards Congress reclaiming its Article I powers.