By Dave Andrusko
An advantage to having been part of the Movement going back to the late 1970s is that you are somewhat better equipped to recognize what is new, what is recycled, and what is being discussed again that has never been given its due. This is especially true when, as the Supreme Court recently agreed to do, the justices examine a pro-life state law.
What is not new is the manufactured hysteria. When the High Court agreed to hear a 2018 Mississippi law (the case is Dobbs v. Jackson Women’s Health Organization), the pro-abortion frenzy was so over the top it was enough to give demagoguery a bad name.
Pro-abortionists have calmed (some of their) nerves by announcing their latest presto chango solution if/when the Supreme Court returns abortion jurisprudence to the 50 states: just pass a federal law superseding state laws–aka the Women’s Health Protection Act.
Although not given one-tenth the space in the major media, op-eds that remind us of Roe v. Wade’s fundamental flaws (of which there were many) also appear when the Supreme Court announces it will hear an abortion case. One example is Hugh Hewitt’s piece in yesterday’s Washington Post.
The headline cuts to the chase: “States — not jurists — should decide on abortion restrictions.” Let me focus on two considerations.
#1. Hewitt begins by quoting from The Post’s Ruth Marcus who wrote a piece last week in which she conceded the Constitution does not “obviously protects a woman’s right to choose.”
So how does Marcus get around that hugely inconvenient truth? “The right to abortion flows logically, if not ineluctably, from this understanding: that women have the right to control their own bodies.”
Hewitt’s response is perfect:
The court is not charged with taking leaps of logic that are contrary to common sense or the plain meaning of the Constitution. The Constitution says nothing about abortion, nor does it empower the Supreme Court to forage about looking for the hidden rights so long urged on it by the “living Constitution” enthusiasts in law schools.
He immediately adds
The Constitution was never intended to be mysterious.
#2. In a case prior to Roe (Griswold v. Connecticut), Justice William O. Douglas found that the idea of the right to privacy (in Hewitt’s words) “had percolated from previous cases that” [quoting Justice Douglas] ‘suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.’”
And so “Open field running on the Constitution thus began — and has never stopped,” Hewitt argues. That “open field running” –lawmaking–was personified in Justice Blackmun’s decision in Roe and its companion case Doe v. Bolton.
“Justice Harry A. Blackmun’s opinion was awful in its reasoning,” Hewitt writes, “as is generally agreed now, and it has been refined and restricted further (without the court explicitly saying so) by a number of rulings in the 48 years since. The Mississippi case will go further to settle the question about what a state legislature can do.”
In brief, Hewitt’s solution (as the headline reads) is that “States — not jurists — should decide on abortion restrictions.”