Much Ado About Roe

I’m sure you by now know a partisan inside the Supreme Court leaked a draft opinion that portends the reversal of Roe v. Wade, causing liberals to threaten Armageddon. All of DC is astir, but the real issue is what comes next; that is, practical governance, political gesticulations, societal workarounds.

As a practical matter, Justice Alito is an “originalist” who believes the Roe ruling was “egregiously wrong from the start” because it argued “abortion” was an unalienable right. His is a philosophical disagreement; a woman’s right to abortion is not in the Bill of Rights and, therefore, must be protected by legislation. By reversing Roe, the Court is not criminalizing abortion. Rather, abortion’s fate must be decided by we the people through our elected representatives. Jen Psaki laid this out clearly to the press gaggle aboard Air Force One Tuesday:

“If the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government. It will fall on voters. There has been a vote on this; it failed. It did not have even 50 votes. If the filibuster were overturned, there would have not been enough votes.”

Sending abortion back to Congress is not a bad thing, and Bernie Sanders is trying right now to gin up votes to make Roe the law of the land by killing the Senate filibuster. He’s part of the pure democracy movement that wants all laws enacted by simple majority (his party’s whips know moderate Dems in the Senate and House make this unlikely). But, the USA is a republic, and the better outcome is for state legislatures to decide. It’s quite pragmatic.

It is a fact that 17 states had liberalized abortion laws before Roe was decided in 1973. Pro-choice lawyers tell me they had “legislative momentum” then and believe “reasonable abortion laws” would exist today in almost every state – if not for choosing the “high easy” of activist appointees instead of the “hard work” of electing pro-choice legislators. Whatever, but the current reality is 27 states do not restrict abortions, meaning “legal abortion” will still be available (somewhere) in the USA.

The political noise comes from the extremes of both parties. I’ve always felt my position was pro-choice with caveats, which puts me in the political mainstream. I confirmed this by averaging the Gallup, KFF, Pew Research, and YouGov polls. 10% of Americans think abortion is almost always wrong, 25% think abortion is almost always right, and 65% think the health of the mother and viability of the fetus should govern abortions after the first trimester.

Moreover, these polls found abortion falls low on the list of voters’ priorities. Liberal pundits said Tuesday this “breaking news” would enable Democrats to make abortion a campaign issue, when they’ve made it an issue in every election since 1980. And, if Virginia 2021 is any indicator, education is the cultural issue du jour and no longer a Democrat strong suit. Remember those millions of millennial feminists in pink pussy hats protesting Trump in 2016? Well, they’re now millennial moms worried about THEIR kids’ IQs – and whether COVID will kill THEIR newborns.

Americans adapt to change because they know how America works and care mostly about the laws of their state. We have a prototype model where change begins in one state and, if it’s a good idea, is adopted by other states. Take pot’s legalization. California first legalized “medical cannabis” in 1996, and Colorado first legalized “recreational marijuana” in 2012. And (drum roll) Mississippi legalized “medical cannabis” this year. Stoners aren’t crying for a Supreme Court ruling or federal law because they see it trending through the states.

Americans are also comfortable “crossing state lines” in the pursuit of happiness. That’s the beauty of a 50-state republic. A 14-year-old can drive a car in the US, but not in New York (or 41 other states). Euthanasia is allowed in the US, but not in New York (or 40 other states). Prostitution is allowed in the US, but not in New York (or 49 other states). The concept of “local option” is uniquely American, allowing citizens to self-locate to a range of freedoms, if you will.

Americans have forever crossed state lines to gamble or make tax-free purchases. They happily cross state lines to go to better colleges and doctors. If an abortion is essential to your happiness, then going out of state is worth the hassle. And, if Roe is no longer the “law of the land” in July, abortion still won’t be restricted in New York (or 26 other states).

There’s another uniquely American adaptation to consider. When has there ever been a closed door or inconvenience in America that an army of entrepreneurs did not come to the rescue? Seriously, it won’t be a year before abortion pills prescribed online, employer-provided medical vacations, and pay-to-play adoption agencies aren’t hitting your inbox or Twitter feed.