Every day, the beneficence and wisdom of our public “expert” class look less beneficent, and certainly less wise. There’s Covid; there’s public schooling and job opportunity; there’s race relations; there’s government spending. To which well-known topics, let’s join abortion and the right to life, as per the U.S. Supreme Court hearing Dec. 1 in the case of Dobbs v. Jackson Women’s Health Organization.
What a display of folly and futility—leave aside attendant moral concerns—came to public notice as lawyers parried and the justices pondered what to do about Roe v. Wade and Planned Parenthood v. Casey.
How come? How’d we get here? Why the moral/legal morass through which we wade endlessly, without resolution? We all know or should. It’s because half a century ago—January 22, 1973—seven judicial “experts,” in the Roe case, decided to impose upon an entire nation and civilization their personal intuitions respecting abortion. Two justices declined to go along.
The seven experts didn’t request from anyone the privilege of overturning ancient understandings of unborn life and the duties of those who carry it. They just did their thing. Here’s the way it is, folks! Aren’t you glad to know?
Except that by arrogating to themselves—in a putatively democratic setting—authority over a matter so fundamental as human life, they dragged their countrymen into that aforesaid moral/legal morass. “At a stroke,” declares a Wall Street Journal editorial, “the Court overturned 50 state laws and turned abortion into a pitched political battle that nonetheless could not be settled politically through the ballot box . . . That mistake has distorted American politics and law for a half century and made the Supreme Court a partisan battlefield.”
Let’s hear it for the “experts”! Nice job of dividing Americans on some of life’s most basic questions. Now, maybe in the wake of a Dobbs case decision—whatever its ultimate configuration—we can commence the important task of wresting moral choice from the “expert” class and restoring it to the people.
That’s to say—maybe—some space will emerge in our vast political landscape for allowing states and their people to decide for themselves, as in Mississippi, whether and how much they wish to protect unborn life. Mississippi’s legislatively enacted protective measure—no abortion after 15 weeks—is important not least because a legislative body enacted it: executing, in alignment with democratic theory, the will of the people. Not the will of the experts; the will—something quite unlike it—of that large, complex, highly differentiated collectivity in whose name legislators supposedly govern. Except when “experts” instruct them otherwise.
Justice Sonia Sotomayor doesn’t care for Mississippi’s view of political duty inasmuch as it contradicts her own expert view, which, as she implied during the Dobbs hearing, is to avoid “the stench that this creates in the public perception that the Constitution and its reading are just political acts.” What in the world Roe was, if not a profound political act, perpetrated by the self-anointed Seven, is hard to say.
Justice Brett Kavanaugh got down to cases of a different sort. He suggested that “The Constitution is neither pro-life nor pro-choice . . . and leaves the issue to the people to resolve in the democratic process.” The democratic process! Puts one in mind of the constitutional convention and the Federalist Papers—relics as they may be of a time before politicians and journalists made expertise the touchstone of everything.
Back to how we got here. Our politicians allowed the Supreme Seven to gather deep moral matters in their hands and reveal to us their meaning. This was an awful break in American procedures. It snatched away the people’s right to speak on particular questions. And it hasn’t worked. Witness the furor over Dobbs.
An exit path from our distress could be the grant of judicial permission for the states that make up our federal union to decide for themselves what they want to do about abortion. They wouldn’t all agree, that goes without saying. But they could debate the questions, rather than salivate hopefully before non-elected jurists. “Women,” tweeted Sen. Amy Klobuchar, “should be able to make their own health care choices.” Sure, lady. So let ’em put their arguments out there in public and parry as far as possible the arguments of the other side. We used to call it democracy. That tattered, battered notion seems well worth another look.
Image thanks to Feminists Choosing Life of New York