The Politics of Abortion

Let’s talk about abortion. I don’t mean the morality of abortion. You either believe a fetus is a life in being or you don’t. You can quibble about viability or detection of a heart beat or the number of weeks in gestation but they are all premised on whether a fetus is a life in being.

So, I mean let’s talk about the politics of abortion because that is really the essence of the issue during this election season. But to put the issue in perspective we need a little history. Prior to January 22, 1973, abortions with some state specific exceptions were banned in every state in the union. Just as they had been since the American Revolution that created the United States of America. It is important to note that the issue of abortion is never mentioned in the Constitution of the United States. But the Constitution did, from its inception, include a limitation on the acts of the federal government. As a part of the Bill of Rights, the Constitution included the Tenth Amendment which states:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

There had been attempts to legalize abortion at both the state and federal level but none came anywhere close to succeeding. And perhaps it never came anywhere close because those supporting and those opposing the issue argued at the extremes – just as they are doing today. You either demanded that there be no restrictions on abortions or you demanded that abortions be banned absolutely. Having been unsuccessful for decades in the Congress and having observed the tendency of the federal courts to legislate solutions as opposed to deferring to the Congress, the liberals, in the name of feminist progress, brought the issue to the United States Supreme Court which, at the time was dominated by liberal justices many of whom had served on the Warren Court.*

The justices tried mightily to find legal authority for a political solution. There was none. As I noted before, there is nothing in the Constitution – pro or con – relating to abortion. There was nothing in previous decisions – either substantive or procedural – that provided guidance. In fact, the procedural decisions suggested that the Constitution should be viewed against a backdrop of the common law at the time of its adoption. That didn’t sit well with the liberal members who would have to admit that the common law at that time leaned toward banning or limiting abortions. So lacking any stare decisis, the liberal members of the court – recognizing that if they say “yes” who is there to say “no” – just made up a rationale involving the invisible penumbra of rights. A penumbra is an illusion that lacks substance. In fact Merriam-Webster Dictionary* defines penumbra as:

“1. a. space of partial illumination (as in an eclipse) between the perfect shadow on all sides and the full light

      b. a shaded region surrounding the dark central portion of a sunspot.

2. a surrounding or adjoining region in which something exists in a lesser degree

3. a body of rights held to be guaranteed by implication in a civil constitution

4. something that covers, surrounds, or obscures.”

Legal scholars on both the left and the right have since criticized the decision for its reference to the penumbra of rights. Those on the left agreed that it was the “right” decision but for the wrong reasons; while those on the right disagreed with both the reasoning and the outcome. However, because the liberal justices continued to dominate the Supreme Court the decision in Roe v. Wade remained, not just “law” but was used to reference subsequent decisions regarding the application of “abortion rights.”

In late June of 2022, the Supreme Court issued its decision in Hobbs v. Jackson Women’s Health Organization overruling Roe v. Wade and stating specifically:

“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.”

In layman’s terms, the Supreme Court ruled there never was a constitutional right to abortion. That it was all based on an illusion that never existed in law or fact. It was just made up. The court righted a wrong fifty years in the making. It returned the status of constitutional law to neutral. In doing so the court said pointedly that the issue of abortion is left to the states.*** But now the politicians have taken over and the misinformation on the status of abortion in America abounds.

Here’s what the decision in Hobbs did and did not do:

• It did not ban abortion in the United States

• It did not ban laws regulating abortion

• It did not pass judgment on any state laws relating to abortion. Thus progressive states like Oregon can continue with its policy of taxpayer funded abortion on demand up to and at the moment of birth. Other states may continue to ban or regulate abortion as each state legislature (or state constitution) – such as Arkansas and Alabama – commands.

• It did not pass on whether federal funds can be used in whole or in part to fund abortions.

• It did not pass on whether state funds can be used in whole or in part to fund abortions.

• It did not rule on whether states have the right to ban interstate transportation in an effort to obtain an abortion.

• And finally, it did not pass on the morality or wisdom of abortions.

In total, the United States Supreme Court did exactly what the United States Constitution commanded. It ruled that:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

As a practical matter, the framers of the Constitution understood that “one size does not fit all” and the states could be free to experiment with all sorts of matters – taxes, land use, transportation, etc. After all, we don’t all want to be like California. It will take a while to see how each state handles abortion but rest assured they will do a better job than the federal government – or even Nancy Pelosi (D-CA) or Ted Cruz (R-TX).

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*Named after Chief Justice Earl Warren and considered to be the most liberal court in history and which gave rise to the term judicial activism.

** The third definition was added years after the Supreme Court issued its opinion in Roe v. Wade apparently to conform its definitions to its new use. That being the case it is probable that dictionaries will revert to the original definition now that penumbra no longer has that cache.

***Both progressive and conservative politicians almost immediately floated the idea that Congress should enact law regarding abortions. The progressives want to recreate the right to taxpayer funded abortion on demand without guardrails, while conservatives want to impose a federal ban on abortion – both sides attempting to legislate from the extremes. And while the Supreme Court did not rule on whether the federal government had the authority to approve either such remedy, it’s more recent decisions on other matters limiting the authority of the federal government, it would not surprise me that if challenged either such solution would be rejected as in excess of the authority of the federal government.