Post-Roe Thoughts...Especially for my Progressive Friends

 

Until this week, Roe v. Wade was one of the most poorly reasoned, and poorly written decisions in American jurisprudence.

 I am not commenting on the outcome – the constitutional right to an abortion “up to some vague point,” but to the legal reasoning behind it.  The majority in this 7-2 decision was actually split four ways, with one ‘majority’ opinion and three concurring opinions.  They all disagreed as to the reasoning behind their decision, and one even doubted that the decision meant what it said. On a personal note – and I will come back to this – only Justice William O. Douglas, whose one-man concurrence insisted that the court find an inherent 9^th Amendment Right to Privacy, made constitutional and historical sense.  Unfortunately, he was just one among nine, and his reasoning was not adopted.  Instead, the Court ran with an esoteric “equal protection” and “due process” jargon with little precedence to support it.  We were poorer then for it, and even poorer now. 

That Roe was a disaster from the start was recognized by most honest liberal jurists.  When it was revisited in Casey v Planned Parenthood, the majority gutted Roe’s baseless assertions that the US Constitution provided different solutions for different trimesters of pregnancy, and narrowed the decision to recognizing fetal viability as a dividing line. Even The Notorious Ruth Bader Ginsberg criticized the reasoning behind Roe, even late in her life, while on the bench.

I have said for years that while I am pro-choice, Roe was such a poor decision that it would be – and should be – overturned.  Liberal friends who look only at results and not legal process  just dismissed me as “impure” on the issue.  Well, friends, the inevitable is now upon us.

If Roe was a poor decision, Dobbs vs. Jackson W.H.O. is even worse.

The initial criticism of Roe in the opinion is valid.  The subsequent invalidation of any right to privacy is an unmitigated disaster.

The entire Bill of Rights of the Constitution is based on privacy rights as against the government.  The Freedom of religion, the prohibitions against warrantless searches and seizures, the arcane 3^rd amendment prohibiting quartering of troops in one’s home – are all based in the notion of *privacy.*  Several critical Supreme Court decisions have noted this – such as in the 1971 (pre-Roe) Wisconsin v. Yoder, which gave Amish parents the Constitutional right to home educate their children. It was hinted at in Griswold v Connecticut (1965), a birth control access case, and again in Loving v. Virginia (1967) (Interracial marriage).

But Roe (1973) said these “privacy rights” were not a 9^th Amendment Right, but somehow connected to general liberty interests in the equal protection and/or due process clauses.  And now that Roe is toast, so is everything else.

So how do we react?

Forgive my brutal response: If the last few days of social media reactions are any indication of the future, progressives will make the same mistake they make in every election cycle, and then wonder why they lose time and time again: they will shoot every potential ally with strident, nasty, interest-group politics.

A scroll through my feeds shows the same ‘flavor’ memes over and over:

"It’s the damned Men."  “If men could get pregnant,” “If men had to pay,” “If men had vasectomies…”

Men are not the Enemy here, folks.  In fact, according to a 2022 Pew Research survey, men support abortion rights at nearly the same rate as women.

"It’s the damned churches!" “Tax the churches!,” “Abort churches,” “We’re not a Theocracy!” the aggrieved snarl.

However, the same Pew poll found that the *majority* of Mainline Protestants, Black churches, Catholics, and Orthodox *support* abortion rights.  Only Evangelicals oppose them. We often forget that the entire 1960s civil rights movement was organized *in churches.* The same-sex marriage legislative movement was spearheaded by the Episcopal Church in numerous states, including New Hampshire, one of the first to legalize same-sex ceremonies.

Nancy Pelosi took *no time* at all ‘marrying’ the horror of the Court’s anti-choice decision with its position striking down New York’s clearly unconstitutional gun laws.   Guess what Nancy – there are millions of Americans who are pro-2^nd Amendment AND pro-choice.

Progressives, listen up:  I AGREE with you that we need to fight to secure reproductive rights.  I’d also like to see us fight for Privacy rights across the board.

 But you don’t make allies by directing your vitriol against men, or churches, or gun-rights activists, or any other “impure” illiberal group into which you decide to pigeon-hole people.  Politics is a not a forum where you win by systematically pissing off those who are, or could be, allies, because you only see them as “parts of a group” rather than as unique, rational, thinking individuals.

Now is the time to THINK, my friends…not a time to show the world that you hate everyone and everything who doesn’t agree with you 100% on a laundry list of litmus tests.

Somewhere is a young, white, gun-owning, church-going blue collar male who just paid for his girlfriend’s abortion.  He’s grateful that chapter is behind them, as is she.  He should be your ally.  But through interest group politics and strident, demeaning attacks on anyone in a “group” you perceive as an enemy, you have effectively neutered him as an active ally.

Congratulations.