The End of Roe and Beginning Again

Politico is reporting that the Supreme Court has struck down Roe v Wade (1973), as well as Planned Parenthood v Casey (1992), according to a draft majority opinion, penned by Justice Samuel Alito, circulated inside the court and obtained by Politico. That this is (to my knowledge) the first Supreme Court decision ever leaked to the press is a central issue that must be taken up by the government. How it was leaked is an interesting question; why it was leaked and who leaked it even more so.

Abortion rights supporters and anti-abortion demonstrators outside the Supreme Court, November 2021.

However, I knew Roe was doomed and that its demise was just over the horizon. I told my wife and my mother only a month ago that the Supreme Court would soon overthrow Roe. I have been feeling this in my bones for a long time. In May 2007, in a short blog, Judging the Religious, I write, “If one day the Supreme Court is dominated by Catholics, we will be justified in worrying about reproductive freedom in America.” However, it was not only the composition of the Court that spelled the precedent’s demise. Roe was doomed from the beginning because Roe was a bad decision—not because it legalized abortion, but because it is bad law.

Before I tell you why it’s bad law, I want to make sure you understand my position on the matter of abortion. I am a libertarian. I stand entirely on the side that demands the right of individuals to control their bodies. This right is paramount not only for women, but for all consenting adults. I have blogged about this many times over the years. Here are three representative pieces, one from 2008, a second from 2013, and a third from 2020, if you want to understand my argument: The Fetus is a Person. Now What?; Abortion is Really About Freedom; Liberty is America’s raison d’être. Preserving Reproductive Freedom for the Sake of the Republic.

Why is Roe a bad decision? “Roe isn’t really about the woman’s choice, is it?” late associate justice to the Supreme Court Ruth Bader Ginsberg told the University of Chicago Law School in May 2013. “It’s about the doctor’s freedom to practice.” She characterized it this way: “it wasn’t woman-centered, it was physician-centered.” In an earlier New York University lecture in 1992 Ginsberg argued that Roe should have focused on a Texas law that “intolerably shackled a woman’s autonomy” by permitting abortion only when the mother’s life is in danger.

“Suppose the Court had stopped there,” Ginsberg said in 1992, “rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force.” “Would there have been the twenty-year controversy we have witnessed, reflected most recently in the Supreme Court’s splintered decision in Planned Parenthood v. Casey?” she wondered rhetorically. “A less encompassing Roe,” she answered herself, “might have served to reduce rather than to fuel controversy.”

In its ruling, penned by associate justice Harry Blackmun, the Court held that a set of Texas laws concerning abortion violated the constitutional right of privacy, which Blackmun held to be implicit in the due process clause of the Fourteenth Amendment, which states that no state shall “deprive any person of life, liberty, or property, without due process of law.” However, the Court rejected Jane Roe’s assertion of an absolute right to terminate pregnancy in any manner and at any time. It instead attempted to balance a right of privacy with state interests in regulating abortion. In its attempt at compromise between right and power, the Court constructed an arbitrary set of rules and imposed them on every state, thereby dooming Roe to failure in the long run.

I have always found it strange that that the court avoided appealing to the rights to liberty and property explicit in the Fourteenth Amendment and instead appealed to the right to privacy, which, while necessarily assumed by the Constitution (for example, the Fourth Amendment only works if privacy is the underlying principle), does not appear in the text of the amendment in question. My view is that the Court should have accepted Roe’s assertion. Liberty demands that a human beings cannot be forced to sustain the life of another human being with his own organs. How can you be free under those conditions?

Moreover, property in ones body, which is the foundation of the property right, repels the power of the state to use ones property for whatever arbitrary ends it seeks. What possibly could be the justification for commandeering the woman’s body to use as an incubator? As I have argued elsewhere, does this not represent the essence of tyranny? This isn’t about running a railway through the middle of your estate. This is about running the railway through your body.

Politically, the pending decision may function as a monkey wrench thrown into the populist takeover of the Republican Party. The populists were well on their way to dominating the 2022 midterm elections and continuing their transformation of establishment politics. The ruling should motivate progressives to get out the vote, with the effect of slowing the Republican advance. At the same time, violent protests, which are highly likely (we’re already seeing the signs) may work against Democrats in the midterms.

Beyond the midterm elections, there needs to be a post-Roe national strategy dedicated to expanding the right of women to unfettered reproductive freedom. This strategy must be focused on liberty and bodily autonomy. In this fight, progressives are among our worst enemies. With demands for lockdowns, masks, vaccine mandates and passports, censorship, speech codes, etc., progressive attitudes complicate the argument for freedom. Indeed, Democrats are responsible for the conservative character of the court by driving people into the arms of the Republican Party with their woke nonsense. (See The principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes; On the Ethics of Compulsory Vaccination; Biden’s Biofascist Regime.)

Woke progressivism also alienates Americans with its incessant and irrational focus on identity. We are already hearing a lot about how the composition of the Supreme Court, being majority male, tells us something about how Roe gets overturned. Yet the Supreme Court that established the Roe precedent was all male. We should remember that those who abolished slavery were all males. All white males. Brown v Board of Education. All male. All white. The 1964 Civil Rights Act? Out of 535 congresspersons, there was a grand total of fourteen women in Congress in 1964. There were only five black congressmen in 1964. Oh, and associate justice Amy Coney Barrett is female.

What matters is not skin color, chromosomes, or gonads, but ideas. We don’t need restrictive moralism from either the right or the left. We don’t needs an overbearing administrative state. American politics require a radical course correction. Libertarianism must take its place at the heart of American politics. We must return to our liberal roots.

Remember, when the United States was founded, most states continued to operate under the English common law right to abortion, which permitted the termination of a pregnancy before fetal movement (quickening). Laws criminalizing abortion did not appear until the late 1800s. Abortion is a fundamental right stretching back millennia. Remember also that, before Roe, abortion was legal in several states and will likely continue to be legal after Roe is overturned.

Our struggle is to extend to each citizen regardless of the state in which they reside access to what should be understood as a fundamental personal right. To do this, we must reclaim an authentic politics of human freedom and begin again.

* * *

Note (5/4/2022): I am not disparaging my Catholic friends. I am drawing upon an understanding of Catholic ideology. If you understand Catholicism, then you can probably understand what I’m saying. There is a lot of history behind my prediction.

Until the emergence of the New Right in the 1970s, which was a reaction to overbearing progressivism and concomitant suffocation of liberal values by Democratic Party ideology, Protestants didn’t much care about abortion. Certainly not in any organized way. Catholic side-switching fused other conservative tendencies to give right populism cachet in the Republican Party, which Southerners found attractive in the post-Civil Rights period. Progressivism crushed populism on the left and American became deeply polarized along cultural lines. Democrats abandoned the working class and individualism, as well as embraced neoliberalism (having already embraced globalism), and millions of working people gravitated to the conservative movement. The end of Roe is ultimately the consequence of woke progressivism clearing the path for conservative Catholicism to replace liberal Protestantism and secular Judaism on the Court.

I’m no oracle. I have gotten things wrong, but not very often. And this one I saw coming from miles away. My predictive ability has to do with a methodology of maximal objectivity. That methodology depends on a perspective rooted in secular humanist and left-libertarianism. These elements comprise a standpoint that’s resistant to the corrupting effects of partisan political-ideology (albeit, political-ideology still constrains me). This standpoint is why I alienate Democrats and Republicans alike. They don’t know what I am. That’s okay. Just look at my record.

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Andrew Austin

Andrew Austin is on the faculty of Democracy and Justice Studies and Sociology at the University of Wisconsin—Green Bay. He has published numerous articles, essays, and reviews in books, encyclopedia, journals, and newspapers.

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