“What specifically is the right here that we are talking about?”
Justice Clarence Thomas gets it.
Justice Thomas made headlines in the arguments over the Mississippi abortion law. The back and forth with the Biden administration’s U.S. Solicitor General Elizabeth Prelogar went like this, bold print for emphasis supplied:
JUSTICE CLARENCE THOMAS: Would you specifically tell me, specifically state, what the right is? Is it specifically abortion? Is it liberty? Is it autonomy? Is it privacy?
SOLICITOR GENERAL ELIZABETH PRELOGAR: The right is grounded in the liberty component of the 14th Amendment, Justice Thomas. But I think it promotes interests in autonomy, bodily integrity, liberty, and equality. I think it is specifically the right to abortion here, the right of a woman to be able to control without the state forcing her to continue a pregnancy whether to carry that baby to term.
THOMAS: I understand we are talking about abortion here.
But what is confusing is that we — if we were talking about the Second Amendment, I know exactly what we are talking about. If we’re talking about the Fourth Amendment, I know what we’re talking about because it’s written. It is there. What specifically is the right here that we are talking about?
PRELOGAR: Well, Justice Thomas, I think that the court in those other contexts, with respect to those other amendments, has had to articulate what the text means and the bounds of the Constitutional guarantees. And it has done so through a variety of different tests that implement First Amendment rights, Second Amendment rights, and Fourth Amendment rights.
I don’t think there is anything unprecedented or anomalous about the right that the court articulated in Roe and Casey, and the way it implemented that right by defining the scope of the liberty interest by reference to viability and providing that’s the moment when the balance of interest tips and when the state can act to prohibit a woman from getting an abortion, based on its interest in protecting fetal life.
THOMAS: So the right, specifically, is abortion.
PRELOGAR: The right of a woman, prior to viability, to control whether to continue with a pregnancy, yes.
THOMAS: Thank you.
In that exchange, which gets right to the heart of this argument, is an exact example of what Roe v. Wade really is all about: having the Supreme Court of the United States use politics to make up law out of whole cloth in order to advance a political agenda.
The late Judge Robert Bork wrote an entire book on this problem. The title:
The Tempting of America: The Political Seduction of the Law.
In which Bork wrote that the Supreme Court and lower courts had moved from interpreting the law according to the Constitution and come to the belief that “nothing matters beyond politically desirable results, however achieved.”
That is exactly a description of Roe v. Wade. And as Bork reminds, this “political seduction of the law” is not new. America — and the Supreme Court — has been here before, always with bad results.
Notably Bork cites Chief Justice Roger Taney, appointed in 1836 as Chief Justice of the Supreme Court by Democrat President Andrew Jackson. Like Jackson, Taney was a slave owner. Thus it was that when the case of Dred Scott v. Sandford came before the Court, an actual slave owner was deciding the fate of Dred Scott, an enslaved black man from Missouri who filed suit against his “owner.”
Unsurprisingly, Scott lost the case. What was notable, however, is that just as with Roe v. Wade Taney created a constitutional right out of whole cloth — because that suited his pro-slavery politics. Writes Bork:
Taney was saying that there can be no valid federal law against slaveholding anywhere in the United States.
How did Taney know that slave ownership was a constitutional right? Such a right is nowhere to be found in the Constitution. He knew it because he was passionately convinced that it must be a constitutional right. Though his transformation of the due process clause from a procedural to a substantive requirement was an obvious sham, it was a momentous sham, for this was the first appearance in American constitutional law of the concept “substantive due process,” and that concept has been used countless times since by judges who want to write their personal beliefs into a document that, most inconveniently, does not contain those beliefs.
Not to be forgotten, but Dred Scott was effectively overturned — by the Civil War and the 13th Amendment to the Constitution that ended slavery.
This substitution of politics for constitutional law is exactly what is at play in the current argument over the Mississippi law and Roe v. Wade itself. And it was perfectly illustrated in this not-so-clever ploy from the pro-Roe Justice Sonia Sotomayor who said this:
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”
In fact, as with Chief Justice Taney’s passion to insert a right to slavery in the Constitution when quite plainly it was not there, so Justice Sotomayor is determined to insert her highly political view of abortion into permanent constitutional law, while suggesting that removing that view is what’s political.
Which brings us to the obvious. Ending Roe would not end legal abortion in America. It would merely hand the issue back to the states. In fact, the Mississippi law at the center of all this provides a time window of 15 weeks for a woman to get an abortion. That is hardly a ban on abortion.
What is really at stake here, just as Justice Thomas said, is that in fact there is no “constitutional right” to abortion in the Constitution. The rights provided by the Constitution, as even a cursory reading will reveal, are specially named in those first ten amendments not accidentally called the Bill of Rights. From free speech, to a free press, to “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” to the “right of the people to keep and bear Arms” and more the Constitutional rights are specified. There was no right to own slaves, justCas there is no right to an abortion mentioned.
As Mark Levin has pointed out in his landmark book Men in Black: How the Supreme Court is Destroying America, there were other Supreme Court decisions beyond Dred Scott and Roe that substituted political views for the Constitution, notably Plessy v. Ferguson (which upheld a law mandating segregation) and Korematsu v. United States, which upheld President Franklin Roosevelt’s wildly unconstitutional (and racist) executive order that rounded up Japanese-Americans and sent them to internment camps during World War II.
The real issue here is not abortion. The real issue is, just as Judge Bork described it, “the political seduction of the law.”
Not good. Ever.
FOR MORE INFORMATION AND ADDITIONAL ARTICLES