Why We Shouldn't Fear Democracy Deciding the Abortion Issue

On Friday, the United States Supreme Court overturned Roe v. Wade, the landmark 1973 decision which found in the Constitution a right to abortion through the first six months of a woman's pregnancy.   Pro-life groups celebrated, while those who favor abortion rights mourned the decision.  Both responses are premature. Imagine a baseball game that was halted in the second inning for nearly 50 years due to a rain delay.  Now the game is finally ready to begin again.

Among legal scholars, even the strongest supporters of abortion rights struggled to defend the legal reasoning of Roe v. Wade.  The decision is replete with factual support as to justify why the line should be drawn at viability, then near the end of the second trimester.  But the decision seemed based on what the majority deemed would be good policy, not the law.  

When people speak of Roe, they rarely defend the legal reasoning of the opinion. Rather they support Roe because they like the outcome, never mind how convoluted the path the Court traveled to arrive at that outcome.  When the possibility of reversal of Roe came about, liberals screamed about stare decisis, that legal principle that precedent, especially those long-standing, should be respected.  Yet, l don't recall liberals feeling constrained by precedent when it came to the Court carving out new legal terrain when it came to the issues they care about, issues like civil rights and same sex marriage.

On January 21, 1973, democratically-elected state legislatures were busy sorting through the complex and difficult issues regarding legalization of abortion.  Nearly half the country had already legalized abortion, and several more states were on the verge of doing so  The democratic process was working.  Then the next day, January 22, 1973, the United States Supreme Court took the issue away from the states, finding that somewhere buried in the Constitution was the constitutional mandate that states must allow abortion for the first six months of a woman's pregnancy.

As discussed above, Roe was a flawed legal opinion.  But it was also flawed politics. 

The primary question of the abortion debate is not when life begins, but when that pre-natal life should be protected by law.  The decision involves weighing the woman's interests in controlling her own body with the undeniable medical reality of fetal development.

Most democratic countries decided the issue, not by judicial fiat as did the United States, but by their legislatures.  Unlike the United States, most of those countries ban abortion earlier in the pregnancy than the Court did in Roe, drawing the line generally between 12 and 16 weeks.

And that's where public opinion in the United States has always been.  Although strong majorities say they support Roe, substantial majorities also say they don't support second trimester abortions which were constitutionally protected by Roe (Not sure why the media doesn't point out the obvious - that people don't know the holding of Roe).  People support abortion if the procedure happens early in the pregnancy.  90% of abortions happen in the first trimester (some studies say as high as 93%), 10% in the second and less than 1% in the third.  Almost all third trimester abortions are for health reasons. 

By taking the abortion issue out of the democratic process, the Supreme Court radicalized abortion politics.  Both sides, but especially those who say they are pro-life, were given permission to take the most extreme position possible, knowing that Roe prohibited them from putting their words into action. Republicans are now going so far as jettisoning the traditional pro-life exceptions to abortion bans, i.e. rape, incest, threat to life of the mother.

That's about to change. 

Some of my favorite writers are affiliated with The Bulwark, a principled conservative media conglomerate that rose up to counter Trumpism..  My issue with many of the Bulwark writers though is that while many are leading voices in the fight to protect our democracy from Trump-inspired autocrats, in the next breath they express fear in actually having decisions about contentious issues made by the people through their elected representatives. Instead they are fine with un-elected federal judges deciding these issues for the American people...as long it's the right policy, of course.  That's not democracy.  Why The Bulwark's writers don't seem to sense the contradiction in their positions is a mystery.

The Bulwark is correct that in the short term the crazies will rule the abortion debate.  Not only will many red states completely ban abortion, several blue states will move in the other direction, opting to allow abortion for all nine months of pregnancy, for any reason.  Six states already have that law in place, a fact rarely mentioned in news accounts.

But, with Roe gone, those legislators will eventually have to face the political consequences of their positions.  For Republicans, banning abortion will no longer be a theoretical question, but one which will directly impact the lives of their constituents.  Democrats who prefer the nine month approach, which goes even beyond Roe v. Wade, will find public opinion sharply against them.  

Candidates and elected officials will eventually have to moderate their position or lose at the polls.  An early example took place in Indiana's May primary of this year.  Reps. Curt Nisly and John Jacobs both took the most extreme position on abortion they could muster.  That didn't make Indiana GOP voters happy.  Nisly lost renomination by 46 points while Jacobs lost by 27.

Democracy is slow, it is ugly, it is confounding.  But it is also cathartic, a way we have of resolving divisive issues in this country.  Because the abortion fight never happened in the United States, and instead that decision was made for us by the Supreme Court, our body politic was left with a gaping wound that has never healed.

After a bloody battle, both sides in the abortion debate will be forced to talk to each other instead of at each other.  And they will have to compromise.  My guess is that compromise in most states is likely to look like Mississippi's 15 week ban, with the traditional exceptions for rape, incest, and life of the mother.  Again, that's where public opinion has always been.

I don't fear democracy deciding the abortion issue.  I welcome it.  

Liberals' Position on Free College Education for Everyone is About Elitism, Not Helping the Poor

I was at a Broad Ripple bar last week, seating at the table with three uber liberals, when the topic of the high cost of college education came up.  The liberals insisted that the solution to the high cost of higher education was to make it "free."

I pushed back.  I said I did not, under any circumstances, want my tax dollars to pay for some multi-millionaire to send his kid to college when that person could easily afford the cost of college education. I was told in no uncertain terms that I was wrong.  That, yes, there was nothing wrong with the less affluent in society paying higher taxes so the affluent won't have to shell out money to send their kids to college.

I was dumbfounded.  The opportunity to gain a college degree tends to favor people who are better off, whether by accumulated wealth or accumulated intelligence, not people who work blue collar jobs for which college degrees are not particularly helpful.  Of course, when I have in the past mentioned having taxpayers pay for vocational education or trade school for those pursuing blue collar jobs, my liberal friends weren't interested.

Let's, for now, set aside the snobby attitude liberals seem to have for those who work with their hands and have no interest (or need) for a college degree.  There is a way that taxpayers can pay for college tuition and still have it geared toward lower and middle class parents who actually need the help - means test the free college program so that the wealthy are not enriched by taxpayers who are living paycheck to paycheck.

My liberal friends are not interested in that. 

During the course of our conversation, I also brought up the high cost of tuition and that annual increases in tuition have exceeded the inflation rate for decades.  I talked about the need to control costs.   The response?  One of my liberal friends said that if we made college free we wouldn't have to worry about the cost.  Wow.

Then it suddenly occurred to me.  These liberals did not hold their position on free college because of their concern about the poor and downtrodden in society. Rather their positions seemed based entirely on elitism, their belief those who have to work in factories and warehouses, or even in skilled trades like electricians and plumbers, are not as valuable members of society as those who have the opportunity to earn college degrees.   Liberals actually look down on the people they claim they're trying to help.

And that is why I'm not a liberal.

Cheney, Pence and Capitol Police Officer Are the Stars of First Day of Public January 6th Committee Hearings

Last night, the bipartisan House January 6th Select Committee presented its first day of findings to the American people. Using never before seen video of the assault on the Capital, testimony of Trump allies, and statements of police officers who experienced first-hand the violence, the Committee detailed the events that transpired at the Capitol that day. The violence was initiated by the far right Proud Boys and Oath Keepers, while former President Donald Trump lit the flame for the insurrection, and then refused to stop it.

Chairman Bennie Thompson (D-MS) proved himself quite capable of leading the committee, but the star of the hearing was Vice Chair Rep. Liz Cheney (R-WY) who proved that she had the courage to speak the truth even if it meant the end of her congressional career.  My favorite part of her opening statement was her message to fellow Republicans:

Rep. Liz Cheney (R-WY)

In our country, we don’t swear an oath to an individual, or a political party. We take our oath to defend the United States Constitution. And that oath must mean something. Tonight, I say this to my Republican colleagues who are defending the indefensible: There will come a day when Donald Trump is gone, but your dishonor will remain.

Cheney may well lose her August primary to a Trump-backed opponent.  But there would be no dishonor in such a loss.  Indeed, the dishonor will belong to Colorado's Republican voters who will have voted against Cheney because she had the courage and integrity to tell the truth.

Another star of last night's hearing, no doubt a reluctant one, was former Vice President Mike Pence. When the Capitol came under violent attack, Capitol Police were quickly overwhelmed. They desperately needed National Guard backup, which was under the authority of the President of the United States, to protect the members of Congress performing their official role counting the electoral votes.  Despite repeated pleas, Trump refused to activate the DC national guard, so Pence stepped into the vacuum and ordered the guard activated to protect American democracy.  Pence deserves criticism for his refusal to stand up against the worst of Donald Trump during his four years in office, but on January 6th he did the right thing, calling in the National Guard and announcing Joe Biden had won sufficient electoral votes to become President of the United States.

The final star of the evening was Capitol Police Officer Caroline Edwards who detailed for the committee and viewing public the violence law enforcement officers experienced that day.  When the violent crowd surged forward past a bike rack that was her only line of defense, Edwards was shoved backwards, hitting her head on the concrete steps and being knocked unconscious. Edwards eventually came to and went back into battle to defend the Capitol.  She was injured again and has injuries from which she still suffers.

Edwards displayed a courage that should make all Americans proud.