Whatever the Supreme Court had to say about abortion, there was bound to be controversy. But I wish everyone with an opinion about the draft ruling in the Dobbs case would take a few minutes to sit down and read it.
I think any reader would come away with a greater respect for the court and its careful attention to the constitutional principles that are the foundation of our republic. The draft opinion makes an important point. The issue here isn’t abortion, but rather the terrible result when our judicial system oversteps its constitutional bounds, assumes the role of a national Legislature, and invents new laws where it sees fit.
The draft, leaked in advance, corrects a fundamental legal error made in 1973 when the court removed the issue from state legislatures in Roe v. Wade. Much of what we are hearing misses the mark, so let me correct a few misconceptions.
The most important thing is that this has little to do with the moral and ethical arguments we’ve been hearing in the public arena this last half-century. The draft majority opinion is clear. It’s all about the tortured and misapplied legal reasoning that got us to this place.
Scholars and legal experts have been baffled by Roe ever since the decision was handed down. Nowhere does the Constitution declare a right to abortion. Instead, the court decided a “right to privacy” was implied in various amendments dealing with other subjects, and through “penumbras” and “emanations” the court discovered a new right to abortion.
It wasn’t much of a foundation and it got crazier. The court laid down an elaborate scheme of abortion regulation based on “trimesters,” with greater restrictions toward the end — exactly the sort of thing we do in the state Legislature when we write a new law and try to cover all the bases. Yet if abortion is a fundamental constitutional right, how could the court restrict it? However much the court at the time might have wanted to see a national law legalizing abortion, it wasn’t its place to write one, and the legal argument seemed to have been invented once the conclusion had been reached.
The court appeared to recognize the problems with Roe when it revisited the issue in Planned Parenthood v. Casey in 1992. That ruling junked the trimester scheme and came up with a new one, ditched the privacy business, and pinned everything on the due process clause of the 14th Amendment, because it mentions the word “liberty.” The reasoning was just as bad. What the court is doing today is recognizing the obvious.
The second big misconception is that the draft opinion, if it becomes final, makes abortion illegal. All it does is send the issue back to state legislatures where the issue should have resided in the first place. Back when it looked like Roe would never be overturned, several states passed laws restricting abortion if the Supreme Court ever changed its mind. Now that something is at stake, I’m sure we will see new arguments in those state legislatures, possibly fierce ones. As the draft opinion observes, that’s the unfortunate result when the public’s voice is improperly stifled for 49 years.
The third big misconception is that this has anything to do with us. Washington voters in 1991 passed Initiative 120, which codified the Roe-era Supreme Court rulings as a matter of state law. The argument at the time was that state law would take over if Roe went away. Today we see elected officials and others who should know better talking as if I-120 never happened.
If the draft opinion becomes final in its current form, it doesn’t mean we’re going to have a new debate in Washington state. Here the question has been settled so long the Legislature has a hard time finding things to argue about. Last session’s big argument in the reproductive-rights area came on a bill to add gender-neutral terms to a midwifery bill, changing out “mother” for “gestational parent.”
I’ll pause while you roll your eyes. These are the sorts of issues that are concocted to give the impression there is an active debate about abortion rights in Olympia. If this draft opinion takes effect, the Supreme Court is telling us that’s up to the people to decide, as the Constitution says they should.
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Sen. Jim McCune, R-Graham, represents the 2nd Legislative District.
