BLAME CONGRESS

It’s Not SCOTUS’ Job to Make Laws

The Demand

Immediately after Roe v. Wade was struck down, the nation erupted in protest against the Supreme Court who issued the decision.  They want the justices impeached, the court expanded or some other vehicle which would give them back their “rights.”  But they’re fighting the wrong enemy.

Job Descriptions Matter

I’m a pro-choice woman, but unlike these protestors, I have a clear understanding of the roles of the three parts of the federal government. I agreed with their decision based on the job they are there to do.  The Supreme Court’s job is to assess laws in terms of their compliance with the Constitution.  The Legislature is there to formulate laws and get agreement to enact them.  The Executive is to ensure that those laws are followed.  The problems come when one branch starts taking over the power of another, or when one branch abstains from their role, forcing another to take it on.  We can talk later about the Executive overreach – it’s probably enough to fill a book – but today, it is all about what SCOTUS can and cannot do.

The “Right” to Have an Abortion

Until the Roe case, the states passed their own laws regarding the legality of abortion and/or how long during a pregnancy termination was considered a legal option.  This way of operating is why we have states:  they are 50 laboratories of innovation.  In general, if a few states try something that works, the other states will adopt it.  But as we are a nation of varying views, it is also likely that some states will deem that the majority of their citizenry does not support a positive “right” that other states think exists.  Such was true of abortion for many years.

The interesting part of the story was the 50-year abdication of responsibility by Congress.  If you want to federalize state laws, you have to pass a law in Congress that overrides the individual states’ laws.  They failed to do this. Instead, they forced SCOTUS to create a right out of thin air. Even well-respected Ruth Bader Ginsberg doubted the rationality cobbled together to support the Roe v. Wade decision.  Sadly, the same thing is true of Obergefell.  Redefining marriage was the job of Congress.  They could either expand the definition legally, as marriage is a contract, or abdicate completely from defining it, letting adults decide what a marriage is and what the marriage contract will contain (the Libertarian view). 

As abortion involves a living fetus, the only question is at what point do we give that fetus human rights?  The Catholic Church says clearly “at conception.”  Most other people in the US have a number of weeks or months in mind, but few accept abortion after fetal viability outside the womb.  As medicine advances, viability is occurring earlier and earlier.  The availability of the morning-after pill and effective contraception should have made abortion extremely rare, but it didn’t.  Personally, I’m torn on what the law should hold, but recently, Congress has proved obsessed with European norms.  Few countries permit abortion past 15 weeks and many limit it to the first 13.  I’m not suggesting an answer, but the answer must come from Congress, not the Supreme Court.  That’s what protestors should be demanding.

A Brief History Lesson
I didn’t know this when I worked for Planned Parenthood as a pregnancy counselor – yes, I helped women get abortions – but Margaret Sanger was a disciple of eugenics – the study of how to make sure we didn’t produce lesser humans.  At the time, this applied to those with mental or physical disabilities and those who weren’t white.  The idea was to make sure women like this didn’t reproduce.  And yes, Hitler loved the idea and brought it forward.  Still, there is racism and ableism in this movement.  When you think about abortion, you cannot ignore these facts.

And yet, victims of rape and those who know the fetus will be extremely defective (and may die very young) struggle with the demand that they have the child anyway.  Outside of these situations, I suspect most people in the US would like us to return to a time where people were more responsible and made every attempt to avoid conception, rather than have to use abortion as birth control.  Thus, a reasonable limit to exercise the option would be the right answer.

But we have to stop violent, angry protests when things don’t go according to what we want.  For one thing, they rarely work.  How many people are convinced by these actions that the perpetrators are in the right?  Imagine someone doing this at work; how would that play out?  We need to make our plea to the correct branch of government (and/or convince our state to make reasonable accommodation) and stop bashing the Supreme Court.  Polarization would be far less likely to be a problem if political issues were left to Congress.

As for the 2nd Amendment, gun haters might not like this, but gun rights ARE in the Constitution and this right is very clear.  This action was in the right house.  Abortion was not.