Roe versus Ferguson 19 May 2019.

Almost a third (32 percent) of Americans want the Supreme Court to overturn Roe v. Wade, while almost two-thirds don’t want the Supreme Court to overturn Roe v. Wade.  Seems clear enough as a democratic policy preference.[1]

However, there are intricacies.

First, does life begin at the moment of conception?  If it does, then do those lives deserve legal protection from harm?  If it, doesn’t, then why do women want abortions?  Is there some definable moment when not-life turns to life?  When it gets its own insurance and phone plan?

Plessy v. Ferguson (1896) was “stare decisis” (settled law—just to show I’ve been reading the newspapers, if not law books).  All the same, the Supreme Court overturned this settled law in Brown v. Board of Education (1954).  In the common understanding (which is different from a lawyer’s explanation), the Supreme Court overturned Plessy on the grounds that it did a moral wrong.

If life does begin at the moment of conception, then abortion is a moral wrong disguised as an elective medical procedure.  The Supreme Court could overturn Roe on the same moral grounds that it overturned Plessy.  (Yes, a bunch of judges appointed by Republican presidents would be accused of having wormed and slimed their ways through Senate confirmation votes in order to achieve this end.  Many reasonable people will find that accusation credible.)

Second, what exactly would the Supreme Court overturning Roe v. Wade mean for the law?  Would it return abortion to the pre-Roe status where it was regulated by the states?  Or would it replace the nation-wide right to “choice” with a nation-wide ban on abortions?  If a Supreme Court decision led to a nation-wide ban on abortion, then would the best analogy be to “Scott v. Sandford” (1857)?  That decision held two things.  First, that African-Americans could not be citizens.  Second, that the division of the country into “slave” and “free” areas was unconstitutional.[2]  Slave-holders could go anywhere they wanted, establish their “peculiar institution” anywhere they wanted.  Majority opinion in a democracy (by the standards of that time, not ours) be damned.

Third, ignorance of facts plays a role in current discussions.  Half (50 percent) of Americans are open to curtailing abortion rights to some degree, while 44 percent support at least an integral defense of Roe as it now stands.  “Right to life” advocates appear to have played upon this willingness to curtail, rather than ban, abortions.  The state of Alabama has recently passed a law banning abortions once a heartbeat is detected in a fetus.  Nationally, 50 percent support such a ban.  However, that support dropped to 38 percent when the people being polled are told that physicians’ modern technology can detect a heartbeat at six weeks.  That 12 percent change undoubtedly comes from men who aren’t too familiar with the menstrual cycle and its vagaries or with the psychology of women facing the possibility of an unwanted pregnancy.[3]  When they figure out they’ve been played, they shift position.

A Supreme Court decision endorsed by only one-third of the people and opposed by two-thirds of the people is going to be a problem.

[1] “Poll Watch,” The Week, 24 May 2019, p. 17.

[2] This referred to the “Missouri Compromise” (1821).

[3] Me neither, but I recognize that I’m not.

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