The Hypocritical Politics of Abortion

The recent leaked draft of a Supreme Court decision that would overturn Roe v. Wade and effectively restrict abortion access to roughly half of the country’s women has left many Americans reeling. A Pew Research poll shows nearly 60% of adults believe abortion should be legal in all or most cases, yet the court our founders designed to protect our liberties seems poised to take them away.

Aside from the fact that the justices’ reported majority opinion reflects a minority of citizens’ beliefs, this rollback of privacy rights is a dangerous recipe for inviting the state back into our lives in a very intrusive way. This seems all the more ironic given a major theme of the alt-right these past years has been breaking free from state intervention.

The 14th Amendment firmly established a citizen’s right to privacy under its due process clause, successfully interweaving most types of privacy with liberty. It’s a right that’s been upheld over and over since the amendment was first enacted in 1868—including the protection of Americans’ rights to use contraceptives, attend private school, and engage in interracial or same-sex marriages. Since the 1973 Roe decision hinged heavily on this interpretation of the 14th Amendment, what other rights might now be on the table?

Perhaps that seems alarmist—Justice Samuel Alito writes in the draft opinion the decision only applies to abortion—but it’s the same slippery slope argument Second Amendment activists champion when they rally against modest gun control regulations. And given the justices’ willingness to backtrack on their previous stances with Roe, the concern feels warranted.

Stacey B. Lee, a Professor of Practice at Johns Hopkins Carey School of Business, agrees. “I don’t think it’s being an alarmist to note that given the composition of the court and the justices’ lifetime appointments that many rights considered ‘well-settled precedent’ could be upended,” she said.

Lee points out that though this would not be the first time the court overturns a landmark decision, it will be the first one that restricts a right Americans have had for more than half a century. 1954’s Brown vs. Board of Education, for example, overturned the 1896 Plessy vs. Ferguson decision and pushed toward racial equality by desegregating public schools. Overturning Roe, however, would move our country in the opposite direction.

What’s also disturbing about this decision is the blatant hypocrisy of conservative lawmakers who argue abortion should be illegal but at the same time wave the banner of citizens’ rights to be free from government intervention. Texas Gov. Greg Abbott, who’s spent the last two years railing against vaccine and mask mandates because they violate citizens’ personal freedom, has made his anti-abortion stance abundantly clear. Last September, he signed a Texas law barring abortions after six weeks—one of the strictest in the country. A Pennsylvania state representative went even further in 2020, appropriating the pro-abortion slogan “my body, my choice” when it came to wearing face masks.

These lawmakers argue that comparing the right to refuse a vaccine or wear a mask is quite different from terminating a life, which begins down the thorny trail of defining when “life” actually begins. The government has had no issue with crafting this definition in the past—neither the IRS nor the Census consider a child living until it is born. Likewise, the 2020 Covid relief stimulus bill specifically excluded pregnant mothers, stating that families could only receive a credit for children who were already born.

But some—including Justice Alito in his recent draft—argue that the 14th Amendment’s Due Process and Equal Protection Clauses clearly protect unborn children. Conservative scholars agree. A recent friend-of-the-court brief in the Mississippi abortion case currently being considered says it’s quite clear. “In the 1880s, this Court reckoned corporation ‘person[s]’ under the Equal Protection and Due Process Clauses,” the brief reads. “The rationale…itself blocks any analytic path to excluding the unborn. Indeed, the originalist case for including the unborn is much stronger than for corporations.”

So which is it? Does life begin at conception, thus affording an unborn person and its family the same level of support as if it was living outside of the womb? Or do those protections only begin once the umbilical cord is cut and a social security number is issued?

In his majority opinion for Roe, Justice Harry Blackmun wrote the definition of life wasn’t for the courts to decide. “When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer,” Blackmun wrote.

Justice Alito’s draft takes a similar tack by not just sidestepping the definition of life, but attempting to punt the issue from the courts altogether. “It’s time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Alito writes, further quoting Justice Antonin Scalia’s opinion from 1992’s Planned Parenthood v. Casey: “The permissibility of abortion, and the limitations on it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”

It’s a stance that makes sense on paper—let the lawmakers make the laws. But as Ruth Marcus points out in a recent Washington Post op/ed, the idea that removing constitutional protections for abortion would move the issue from the Court to Congress is “demonstrably laughable.” Marcus quotes Harvard Law School professor Richard Fallon, who wrote in a 2007 law review article: “The notion that by overruling Roe the Supreme Court could extract itself from controversial assessments of the constitutionality of state antiabortion legislation is not just a fallacy. It is a delusion.”

I agree. While Justice Alito’s opinion technically jibes with the Constitution’s separation of powers, such an assertion ignores the muddled way in which our courts have been legislating from the bench for more than a century. Court seats that were once thought as apolitical appointments are now a front-and-center keystone of political campaigns, as evidenced by President Donald Trump’s remarks in a 2016 debate. “I am pro-life, and I will be appointing pro-life judges,” Trump said. “If we put another two or perhaps three Justices on, [overturning Roe v. Wade] will happen. That’ll happen automatically.”

That’s not to say we as Americans should throw up our hands and accept the current system for what it is. As I lay out in my book, American Schism: How the Two Enlightenments Hold the Secret to Healing our Nation, several structural changes are needed if our democracy is to thrive in the 21st century. One of the most important changes are term limits for federal legislators and Supreme Court justices.

Having had the fortune of leading large organizations, I have a good understanding of and appreciation for the domain of human capital development, at least in the private sector. I have been intricately involved not only in hiring and promoting many hundreds of people, but also designing career paths for professionals across many diverse areas of expertise. This latter activity has fortunately allowed me to observe the skill-based training and leadership development of some extraordinary people.

As a result of these experiences, I can share one common practice in private sector professional development which assuredly translates into the realm of public service. Achieving competency in any given position usually requires surmounting a steep learning curve—sometimes this can take a few years. But on the other end of the spectrum, remaining too long in any one role is a recipe for complacency and stagnation.

I believe the same applies in the legislative and judicial arenas. Too many officials have a firm lock on their voting districts and become exceedingly comfortable, smug, and overwhelmingly complacent—a characteristic that comes through quite clearly in the mocking tone of Justice Alito’s draft. Many have simply stayed too long. 

Given the nearly unrestricted power of the Supreme Court, lifetime court appointments are as unjust to future generations as hereditary rule would be in the executive branch. Supreme Court Justices should have term limits of 20 years of service on the bench, after which time they can either retire or return to a lower court.

It’s unclear what will come if the Court does indeed pass down this decision in its current draft form. But given the fervor generated from its leaking in the last several weeks, the likelihood of Justice Alito’s desire to quell division with this decision seems highly unlikely. Only time will tell.