by Doug Bandow
Leave it to Attorney General Merrick Garland, once seemingly destined for the Supreme Court. When choosing between America’s most vulnerable members and most determined political lobby, he picked the abortion industry over millions of babies.
He didn’t put it that way, of course. He explained, “The department will provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack.”
Apparently, he assumes that Texas’ new pro-life legislation, which allows lawsuits against those who help someone get an abortion, will lead to violence — despite the absence of any such threats.
Garland also said that Justice would consider means “to protect the constitutional rights of women and other persons, including access to an abortion.” Perhaps he intends to intervene in future litigation against the measure. More radical advocates of abortion, such as former Harvard Law Professor Laurence Tribe, want the Justice Department to prosecute anyone who acts under the Texas law. Most likely, the Biden administration is posturing to score political points by ostentatiously defending “the right to choose.” After all, the president has had a couple, shall we say, bad weeks, so distracting the public and energizing the base are time-honored techniques.
A more appropriate role for the Justice Department, however, would be to defend the primary victims in this case — babies threatened with abortion. The issue will always be a tough one, since it sets two vital interests against one another: life and liberty. However, without life there would be no liberty. Indeed, the life at issue exists only through the exercise of choice.
Other than the case of rape, an important but exceedingly rare exception, people choose to have sex. Any resulting baby, even if an unwanted consequence, therefore is a product of voluntary conduct. The issue of abortion then becomes a question of accountability. That is, if one has sex, does he have any responsibility for the life created? “None” is an inadequate answer for something as important as life.
Claims that children born under such circumstances should be aborted because they are unwanted and would likely be neglected are specious, since no one has a crystal ball to see the future. Plenty of “unwanted” children seemingly become happy and productive adults. Anyway, who are outsiders to assess other people’s lives and pass judgment? More importantly, how many of those tagged as unwanted would favor their own execution before birth?
Progressives can fairly contend that pro-life activists should do what they can to support both expectant moms and young children in difficult circumstances. In fact, many abortion opponents already do so. However, abortion should not be confused with compassion for either moms or kids.
The abortion lobby’s legal arguments are as bad as its substantive claims. For decades, with Roe v. Wade in 1973 perhaps the apogee of judicial law-making, the Left defended judicial review of legislation and regulation approved by democratically elected leaders and celebrated judges willing to unashamedly act like legislators, making up the law as they went along. Then, President Donald Trump began nominating judges. Progressives suddenly had an epiphany and decided that it was outrageous for jurists to interfere with democracy. Sounding like conservatives a half century ago, the Left talked of court-packing and more to protect the people’s inviolate right to legislate for themselves.
The Supreme Court followed the Left’s advice. The justices didn’t intervene in Texas’ new abortion-limiting law. They respected the will of the people. They affirmed the majesty of democracy. Yet lefties are in a frenzy, demanding that courts be packed so there would be a court majority to … overturn the will of the people.
It is almost charming to see such extraordinary hypocrisy expressed. Progressives obviously believe in political choice only when it turns out to be progressive choice. The Left believes judges should be progressives and implement progressive policies. Nothing else — Constitution, laws, regulations, jurisprudence, logic, or evidence – much matters. Talk about constitutional liberties and such is mere cant, intended to convince the public that progressives stand for something other than ideological self-interest.
In the Texas case, the liberal determination to use judges to achieve what democratic politics cannot gain went a step further. The law presents a difficult legal target. Normally court cases require real people involved in real disputes. However, no government officials enforce it, so they are not appropriate defendants. No lawsuits have been filed, so no obvious private targets are available. Indeed, with no defendant there would be no one to offer opposing arguments in what is supposed to be an “adversarial system.” Of course, progressives, many of whom probably don’t know anyone who is pro-life, cannot even imagine an argument on the other side. And, as the Left certainly realizes, the Court’s measured approach in this case is a dramatic departure from the radical Roe decision, and bodes ill for the ruling’s continuing survival.
Still, the Texas legislation is a dubious means of making law. However, the Left forced pro-lifers to adopt such an unorthodox strategy. Roe was a conscious usurpation of democratic decision-making across the country. The opinion evidently had little to do with constitutional law.
Justice Harry Blackmun announced for the Supreme Court: “We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion. In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.”
None of this rather strange psycho-babble had anything to do with the question whether the U.S. Constitution addressed abortion, as many progressives at the time recognized. There were principled liberal scholars who liked Roe as policy but frankly saw it as a political not legal decision. It is almost impossible to imagine any progressives (then called liberals) in good ideological standing who today would dissent, but my constitutional law professor at Stanford Law School, speaking just a few years after the ruling, expressed his support for the outcome but not justification.
Among the more famous, and brutal, critiques came from John Hart Ely, who taught at Yale Law School and later served as dean at Stanford Law School. He critiqued the decision in a famous article entitled “The Wages of Crying Wolf,” contending that the abortion uber alles decision was “very bad,” its reasoning was “simply not adequate,” and it set a “dangerous precedent.” Indeed, he explained, “Roe lacks even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine.” Imagine a progressive talking like this today! Added Ely, the ruling “is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
With judges ostentatiously acting as super-legislators, people had no choice but to organize politically across the nation and make judicial overreach their cause célèbre. With the Supreme Court making bad law, pro-life activists were forced to embrace sometimes dubious approaches in an attempt to at least mitigate the human harm caused by the Court’s ill-considered opinion. Another seven states are currently considering enacting legislation similar to the Texas law.
Roe, probably more than any other decision, has exposed the intellectual bankruptcy of leftwing jurisprudence. Over time the opinion became liberal scripture — secular yet sacred. The once quaint belief of Ely and other liberals that legal decisions should have at least a vague connection to the laws supposedly being “interpreted” has largely disappeared. Progressive “interpretation” is almost entirely result-oriented, with laws infinitely malleable in a left-wing direction. What a measure says or was intended to mean is of mere historical interest. Were it not for the PR problem of admitting to the public that liberal jurists simply see themselves as another, though higher, legislative body they probably would dispense with the requirement of even issuing an opinion. Like traditional solons, they would just vote and go on their way.
Ultimately, the only solution to the abortion legal wars is to return the issue to the political process. Voters could battle over abortion and legislators could make compromises reflecting local attitudes. Had ongoing liberalization continued naturally through the political process — California Gov. Ronald Reagan famously signed legislation easing his state’s restrictions — some of the bitterness occasioned by the Left’s hijacking of the courts would have been ameliorated. And contrary to progressive fears, there likely would be no pro-life tsunami. Rather, a detailed analysis by the New York Times concluded that, “In more than half of states, though, legal abortion access would be unchanged.”
At the same time, judges would still be expected to judiciously guard constitutional liberties – but by honestly assessing the relevant text and history, rather than enshrining their opinions in the Constitution. Interpretation would require more than reliance on emanations and penumbras, accentuated by dreams, hints, haikus, vapors, seizures, fantasies, cartoons, spells, limericks, and whatever else the Left uses today to concoct its jurisprudential theories.
Central to the debate should be the famed elephant, or in this case, baby, in the room about which the Left never speaks. As Ely noted in critiquing Roe, “there is more than simple societal revulsion to support legislation restricting abortion: Abortion ends (or if it makes a difference, prevents) the life of a human being other than the one making the choice.” Ely still favored relaxing the prohibitions which were common across the country a half century ago. However, he acknowledged that there was an inevitable trade-off, one that judges were not authorized to impose on the country.
Abortion is never going to be an easy issue. The latest evidence that the abortion wars contaminate everything they touch is the attorney general’s view that submissiveness to the abortion lobby as more important than representing those unable to assert their own interest, the unborn. As long as Roe’s essential holding, restricted some by subsequent rulings over time, remains intact, the Justice Department’s discretion will be limited. However, Garland could use the department’s authority to intervene in abortion cases and advocate a more balanced judicial approach to abortion, that considers the importance of life as well as liberty.
Perhaps Roe’s greatest failing was its failure to even acknowledge the equally important second party in the case, a baby. The fact that even the nation’s highest legal official does not mention those most affected by Roe reminds us of the pro-abortion movement’s intellectual bankruptcy.
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Doug Bandow is a former Special Assistant to President Ronald Reagan and author of The Politics of Plunder: Misgovernment in Washington. A graduate of Stanford Law School, he is a member of the California and Washington, D.C. bars. He is a contributor to the American Spectator.