Will the United States Supreme Court correct a previous error?

 

May 10, 2022

The United States Supreme Court is currently reviewing a case that may reverse Roe v. Wade, which the History website explains “was a landmark legal decision issued on January 22, 1973, in which the U.S. Supreme Court struck down a Texas statute banning abortion, effectively legalizing the procedure across the United States. The court held that a woman’s right to an abortion was implicit in the right to privacy protected by the 14th Amendment to the Constitution.”

The History website also explains that “In May 2022, the nation's highest court agreed to hear Dobbs v. Jackson Women’s Health Organization, regarding the constitutionality of a Mississippi law banning most abortions after 15 weeks of pregnancy. The case presents a direct challenge to Roe v. Wade.”

The news broke when a draft opinion written by Justice Samuel Alito was leaked to and published by Politico. This draft opinion, secretly and wrongly provided by someone associated with the Court, has started two huge reactions. 

One reaction is outrage that the decision beloved by abortion supporters may be reversed. The other is disgust and anger that the leak has damaged the integrity of the Court as never before in its history, and that it was done by someone on the inside.

"We hold that Roe and Casey must be overruled,” Alito wrote. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives."

He also wrote that while defenders of Roe point to the Due Process Clause of the 14th Amendment to justify the decision, they are mistaken, CNN reported.

“In the draft, Alito batted away arguments that other provisions of the Constitution dealing with privacy or liberty might be relied upon to uphold a right to an abortion,” the network’s story continued.

“That's because, according to Alito, while the Due Process Clause might guarantee some rights that aren't mentioned explicitly in [the] Constitution, such rights have to be ‘deeply rooted in this nation's history and tradition. The right to abortion does not fall within this category,’ he said.”

Alito went on to say that Roe was "egregiously wrong" from the start and its reasoning is "exceptionally weak," CNN reported.

His conclusion was that the issue must be decided by the states, not the Supreme Court. "That is what the Constitution and the rule of law demand," he wrote. "Our Nation's historical understanding of ordered liberty does not prevent the people's elected representatives from deciding how abortion should be regulated," he added.

Paul Stark, writing for Minnesota Citizens Concerned for Life (mccl.org) on Jan 20, 2017, provided three reasons why Roe was an improper ruling.

“First, and most importantly, the outcome of Roe is harmful and unjust. Why? The facts of embryology show that the human embryo or fetus (the being whose life is ended in abortion) is a distinct and living human organism at the earliest stages of development. ‘Human development begins at fertilization when a sperm fuses with an oocyte to form a single cell, a zygote,’ explains a leading embryology textbook. ‘This highly specialized, totipotent cell marks the beginning of each of us as a unique individual.’"

“The second problem with Roe is that it is an epic constitutional mistake. Justice Harry Blackmun's majority opinion claimed that the ‘right of privacy’ found in the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment is ‘broad enough to encompass’ a fundamental right to abortion. There is no reason to think that's true.”

“Third, Roe is undemocratic. Roe and Doe v. Bolton together struck down the democratically decided abortion laws of all 50 states and replaced them with a nationwide policy of abortion-for-any-reason, whether the people like it or not. Of course, the Court may properly invalidate statutes that are inconsistent with the Constitution (which is the highest law). But Roe lacked any such justification.”

A National Right to Life Committee (NRLC) factsheet estimates that if Roe v. Wade is overturned, "18 states would protect unborn children immediately." This is due to laws implemented prior to the Roe ruling, or “trigger” laws that would go into effect upon Roe’s reversal, or both.

The NRLC also estimates that action to “allow abortion either through legislatively-enacted statute or a court ruling interpreting the state constitution to convey the right to abortion” would occur in 23 states. 

The leaked document predictably has liberals and conservatives blaming each other. PBS online said, “Republican members of Congress are suggesting a sinister left-wing plot to derail the outcome of the final decision. Liberals are alleging machinations from the right to lock the justices into their preliminary vote.”

Regardless of who leaked the opinion and why, this is a serious problem for the Court, which has been immune to such scurrilous behavior, thus far.

Chief Justice John Roberts called the act “absolutely appalling.” Appearing at the 11th Circuit Judicial Conference in Atlanta, Roberts said he hoped “one bad apple” would not affect “people’s perception” of the Court, adding that “the person” or “people” who leaked the document are “foolish” if they think it will affect the courts work.

Put abortion in the hands of the states, and punish the leaker accordingly.

Only understanding, not rewriting, history will help us meet the future

Unless you have been living in a cave — or like so many these days, voluntarily isolated in a bubble — you have likely noticed the somewhat disturbing resemblances to George Orwell’s “Nineteen Eighty-Four,” sometimes written as “1984.” Published in 1949, Orwell’s predictions were off by a few decades. But today, we see more and more how his vision was right.

Orwell’s dystopian story involves a government that controls everything people read, hear, say, eat, breathe and know. The story’s protagonist, Winston Smith, was one of many who had the job of rewriting history to fit the evolving narrative of the totalitarian government. His job was to “fix” every book, magazine or newspaper containing what used to be the truth to conform to what is the new truth.

Today’s political correctness (PC) may be the most recognizable feature from Orwell’s novel. PC mania has been around for several years, and is gaining strength these days. While PC comes from a non-government faction, rather than a totalitarian government like that of “1984,” the results from the non-governmental faction may be little different, as it converts what “used to be” into “what now is.”

An element of PC today is “white supremacy,” or “white privilege.” All of the white folks in America, who had nothing to say about who their parents are, what color their skin is, or where they were born, are the current main target. Nothing is so disliked in America as white Americans.

Have you ever been to Spain? Or to Germany, France or Mexico?

The people in those and other countries are unconcerned with people of other nationalities that visit them. They are simply and naturally the Spanish, the Germans, the French, and the Mexicans. No doubt they like the money foreigners spend in their countries, but they continue to do what Spanish, German, French, and Mexican peoples want to do. 

This is so because those countries have relatively few people there who are not natives of that country. The natives comprise the vast majority of people, and therefore are the dominant element in their culture. And the dominant element in a nation determines what is important and not important.

So, some people say “I really like Spain, except for the Spanish people. They have this supremacy thing going on.”

Is it really surprising, then, that in America, where the white, non-Hispanic people are still the majority of the total population — about 61 percent — that the long-standing American values and ways still dominate the cultural norms of the country? 

The proportion of white Americans compared to others was much larger not so long ago. Our desirable national characteristics have always invited people from other places to come here, and they did, and do. But the culture the white American majority created decades ago still is dominant.

Yet some of those in other races/ethnicities are offended by “white supremacy” and “white privilege.” Somehow, living as the great majority of people have lived for decades is no longer legitimate to these folks.

Even some white Americans have jumped on this bandwagon, feeling the guilt that the others have convinced them they should have, merely because they were born with white skin.

Today, some people say, “I would like America better if it wasn’t for those darned white people.”

It is easiest to criticize something if you know very little about it. The less you know, the easier it is to disparage it. And this is what is the basis of much or most of the cancel culture mania now hobbling the country.

That applies to hating white people, and to removing vestiges of certain people of historical note.

People who have done great things in their lives, sometimes great things for their country, have now fallen into disfavor with the cancel culture faction for something not-good they did that these folks think obliterates all the good they did.

A person that has lived for 60, 80 or more years has had a long period of time to make decisions and take actions. Some of those may not have been good ones. Should we rate their entire lifetime based upon a couple of not-so-good, or even bad things, or should we take the more reasonable route of evaluating all they have done, rather than one or a few things?

It is also common these days for the cancel culture to apply the practice of “Monday morning quarterbacking” to things and people. Without a solid knowledge of what living in past times was like, these quarterbacks feel capable of judging the past using the standards of today. 

That is profoundly imprudent. Without a deep understanding of how things were at a certain time, it is not possible to make a sensible judgement about things that happened long ago. These folks are ill-equipped. It’s like going to play 18 holes of golf with only a putter.

History, the story of our past and how it built the present, is crucial to our future success. If we erase it over some discomfort based upon superficial understanding, we will substantially cripple ourselves.

Rather than erase history because it offends us, we need to study it and learn from it.