Pre-Roe

Posted by Josh Friedlander | 3 Comments

My colleague Adam and many of my friends are desperately concerned that Alito and like-minded jurists at our high court will find some way to reverse Roe. Nevermind that a precedent shattering case would have to appeal to the court first, before any such decision could occur, or that for such a case to be eligible some lower court would have to overrule Roe. How often this actually happens, I can’t say, but is there no enterprising legal journalist out there to give an answer?

It can’t be too often that Roe encounters a legitimate lower court challenge, or I presume we would hear no end to it, first from regional and then national news services.

But even if a Roe challenge hits an Alito-infused court what is the worst case scenario?

Is it not the repeal of a judicial coverage for the availability of abortion? Regardless of one’s stance on the issue, it is difficult to see how this would be the apocalypse. The availability of abortion would then, and perhaps justly, return to the purview of individual states.

Those who would fight to maintain Roe while assuming that its repeal would lead to the banning of abortion by red states, are effectively taking a Federalist stance. While they argue passionately for a right to privacy protection in the constitution, it seems clearer that interstate commerce might be a more legitimate legal grounding, though it cuts both ways. A woman in pre-Roe U.S. can get an abortion in one state but not another: why are her rights so severly curtailed in one place but not another?

But equally, a fetus protected as a citizen in one state should not lose those protections in another. So we reach the same impass stemming from the privacy argument. If U.S. citizens have a private right to remove a fetus from their bodies, then surely that fetus has a private right not to be removed!

There will never be consensus on whether a potential human at any stage of birth is a living sentient being (angels fit on the head of a pin, why not in a cell the soul of a child? And some adults are clearly not sentient, but we don’t curtail their rights.)

In the end, the debate over these issues may belong on the state level or it may belong on the federal level, and credible arguments exist on both sides, but surely we are not now having either argument.

Instead, we continue to fight both sides of a weak court verdict and in the process our Republic gains not an inch of development towards the states nor the federal government.

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