The Great Disconnect 5 - Abortive Decisions

When is a baby not a baby? The Supreme Court prepares to tell us.

As we've seen over the course of this series, the progressive wing of the Democratic party holds utterly nonsensical views so strongly that they viciously attempt to destroy anyone who disagrees with them regardless of reality.  They try to get people fired, they direct mobs to picket or burn their opponents' homes and places of business, and they're systematically trying to deny their opponents the fundamental right of self-defense to make their assaults easier and safer.

Yet, their most vicious offensive is reserved for that most defenseless of all possible targets: an innocent unborn baby who's never laid eyes on anyone, much less ever made a choice to do harm.

From a layman's point of view, the abortion question is simple:  If whatever is growing inside a woman's body (we refuse to use the term "birthing person") is a human being, then, along with all other human beings on the face of the earth, the developing baby is entitled to all human rights including life, liberty, and the pursuit of happiness.

If, on the other hand, this "potential human" is not in fact a human being, or at least not yet, no human rights need be recognized.  In that case, any unwanted clump of "womb contents" can be removed at the sole discretion of the woman whose womb houses an unwanted tenant, with no more concern or consideration by outside forces than disposing of a hangnail or tumor.  President Clinton's Surgeon General M. Joycelyn Elders famously expressed this view in telling Catholic leaders to "get over their love affair with the fetus."

This is a relatively new debate: America was pro-life from the beginning, as were their British forebears.  In his 1788 treatise Elements of medical jurisprudence, Samuel Farr wrote:

unborn embryos ... may be supposed indeed from the time of conception, to be living animated beings, there is no doubt but that the destruction of them ought to be considered a capital crime[emphasis added]

Sentiment at the time the Constitution was written was entirely pro-life, and indeed favored capital punishment for abortions as Dr Farr proposed.

We've come a long way since: a considerable part of our citizenry now favors death for any unborn children felt to be inconvenient by their mother, the father's opinion pro or con being entirely irrelevant.

If the difference in worldview between those supporting transgenderism on the one hand, and those holding to objective reality and genetic science on the other, is toxic, the gap between the two sides on the subject of abortion rivals only that of slavery a century and a half ago.

Laws, Lawyers, Legislatures, and the Court

In 1973, in their infamous Roe v Wade decision, our Supreme Court made the mistake of thinking that it could settle a fraught social and moral issue in one fell judicial swoop and lay the matter to rest for all time. They crafted an abortion policy to be applied right across the entire nation, ignoring past customs and without any popular input.

Because pro-aborts liked the decision, they have become invested in the notion that Supreme Court precedent, even bad precedent, should stay on the books forever.  Pro-lifers instead think the Roe v Wade precedent is as bad as Dred Scott and want it overruled just as that one was.  Rather than resolve the dispute one and for all, the Supreme Court poured, not mere gasoline, but napalm onto the fire.

This is because the two views simply cannot be reconciled - it is not possible to "split the difference" any more than you can split the baby, but the Supremes of 1973 thought themselves to be literally wiser than Solomon.  Abortion is either murder or it is not.  A fetus is either a human being or it is not.  The Supreme Court can either make up rights which are found nowhere in the Constitution or it cannot.

This leads to another question:  Given that the two sides are irreconcilable, close to equal in number, and that polling shows that views haven't changed very much in decades, how does our society decide whether to allow or forbid abortion?  Since jaw-jaw is preferable to war-war, we need to agree on some sort of non-violent process for making such decisions.

Is this even a matter for the courts?  Should SCOTUS re-decide the abortion question as it attempted to do in 1973?  It does have another option: it can strike down Roe v. Wade while taking no position on abortion itself, thus leaving it to individual states to work things out for themselves as best they can.

Townhall described Justice Kavanaugh's view in the currently celebrated case Dobbs v. Jackson Women's Health Organization:

When deciding between the interests of a pregnant woman and the interests of an unborn child, Justice Kavanaugh pointed out, "You can't accommodate both interests. You have to pick." Kavanaugh then went on to point out how the courts should figure out how to make that choice. "What does the Constitution say about that?"

He is correct in saying that only the Constitution matters in cases before SCOTUS.  The Supreme Court should be totally apolitical and rule solely on how the matter at hand relates to our Constitution and laws flowing from it.

This is completely different from how our legislative branches are supposed to operate.  Unlike judicial benches, legislatures are made up of men and women who are elected by their constituents and answerable to them regularly.  They are inherently political.

Our Founders recognized the need for an apolitical branch to rule on the Constitutionality of laws and rulings of the political branches, but precisely because of this independence, their remit is supposed to be strictly limited to the black-letter of the law as passed by legislatures, with the Constitution of course being supreme.  Justice Clarence Thomas cut to the heart of the matter:

If we were talking about the 2nd Amendment, I know exactly what we're talking about. If we're talking about the 4th Amendment, I know what we're talking about, because it's written. It's there. What specifically is the right here that we're talking about?

Townhall reported that Judicial Crisis Network President Carrie Severino states that "laws in regards to abortion should be left to the states since the Constitution does not 'say anything about it, one way or the other.'"  That's a good summary of our view - where the Constitution is silent, it's a matter for the states and the people, not the Federal government.  Justice Thomas' remark suggests that he feels the same way, and assuming Justice Kavanaugh has perused his pocket Constitution, his expressed logic would seem to lead along the same lines.

We aren't the only ones who see this case as overturning Roe.  Townhall quotes New York Democrat Carolyn Maloney who called it "a sad day for our nation with Roe v. Wade in jeopardy once again.... We're not even in a democracy if women can't make decisions about their own bodies," she said.

There we see another progressive denial of unarguable fact: Our Founders deliberately did not give us a democracy.  They gave us a republic, in which the people's elected representatives, and no other, are supposed to create the law - not bureaucrats, not a king, not an angry mob, and not courts no matter how august.

Ever since the Eisenhower administration of the late 1950's, though, our increasingly-activist Supreme Court has been a willing accomplice in undermining the "will of the people" by legislating from the bench on matters best left to the people's elected representatives.  Although we rejoice with other pro-lifers that it seems that the Roberts court may overrule, or at least scale back, Roe v. Wade, Justice Thomas' remarks gave us hope for a much more important outcome - the rollback of the activist Supreme Court which has caused so much harm by exacerbating divisions in our nation.

We hope that this case will lead to SCOTUS reminding everyone that rights and obligations such as national defense, the post office, the patent system, foreign diplomacy, interstate commerce, and a few others which are explicitly spelled out in the Constitution are what the Federal government is supposed to do - and that's itEverything else is forbidden to the Federal government, and is thus reserved for individual state legislatures and the people, who, given that there are so very many and they are so very different, can naturally be expected to come up with an extremely wide variety of different answers - abortion being merely the most pointed tip of the iceberg.

For example, the Constitution says nothing about public education, public broadcasting, or encouraging the performing arts.  These are, or ought to be, entirely outside the Federal government's remit - but are perfectly appropriate for the 50 states and hundreds of lesser jurisdictions to approach in any number of different ways.  In more honest times, activists recognized that a Constitutional amendment was needed to permit the Volstead Act which outlawed alcoholic beverages and another was required to institute the income tax.

Democrats are far less scrupulous today, about this as everything else - which we'll explore more in the next article in this series.

Will Offensicht is a staff writer for and an internationally published author by a different name.  Read other articles by Will Offensicht or other articles on Law.
Reader Comments

The science and the overall effects are hotly debated. For example, if the goal is simply "saving lives" then when abortion was illegal, how many lives were lost because women had to go to back-alley butchers to get an abortion? Add them to the number of fetuses lost (women have been getting abortions throughout history), and the number is higher. I could go on, but I made my point. My attitude is when in doubt, choose individual liberty.

December 10, 2021 4:26 PM

Great series of articles! Thanks Scragged

Not sure what 1st comment is trying say.
The science of abortion?
Goal.of abortion?
Sum of fetuses lost? Does that mean number of babies killed via abortion?

And yes, men and women (it takes two, one of each, man + woman) have the liberty to choose whether they want to get pregnant or not and if not, take precautions to not get pregnant.

Enough of that.

Regarding the US NOT being a democracy, but purposely designed and created to be a republic - The house and senate has, for years, abdicated their responsibility and authority to create legislation.
The expansion of the federal government needs to be checked and the states need to take back responsibility for anything and everything not enumerated to the federal government in the Constitution.
And striking down Roe vs Wade would be a great way to start checking runaway government overreach.

December 10, 2021 11:53 PM

What is never mentioned in any discussion of Roe v Wade is that the justices admitted in their ruling is that should Congress ever declare an unborn child a "person" then the 5th Amendment kicks in and voids the ruling. That is, "... nor be deprived of life ... without due process of law ..."

December 12, 2021 4:23 AM
Add Your Comment...
4000 characters remaining
Loading question...