As most everyone knows, a draft Supreme Court opinion authored by Samuel Alito that would overturn Roe v. Wade has created a groundswell of opposition and protests. This opposition has always been, and continues to be, mostly politically driven.
Tellingly, the opposition is fiercer here in deep blue Connecticut where abortion rights are not in any danger. Being a politician can be hard, trying to navigate the line between appeal and rejection. But with Roe, politicians here, especially those that are statewide, only have to worry whether their “support of women” is vocal enough to gain entry to the celebration and fruits thereof.
It is political pandering at its highest and can be freely undertaken without any downside. Adoring interest groupies/donors and media make this pandering possible.
In Connecticut, abortion is a lay-up. Objective, thoughtful debate on the merits of this important issue is soundly and righteously rejected by the political majority with little protest from the political minority. Pro-life individuals are successfully portrayed as backward, fanatic Christians, anti-women, ignorant Neanderthals – e.g. essentially evil – despite the 43% of women nationwide that identify as pro-life (although only 38% in the East).
Abortion is one of the most serious issues facing human beings. It deserves sober, serious, thinking and reflection. Instead, at least in Connecticut, it has degraded into a political tool consistently used in elections of any consequence. The strategy is to silence opposition through demonization. One of the saddest parts about this dynamic is that for most thoughtful individuals, it attempts to use their proper, instinctive sense of compassion for unborn life and for women and twist it to political ends.
But the protest gatherings and snappy signs/slogans (“Don’t like me in your house? Get out of my uterus”) are, like the overzealous views on so many topics these days, becoming tiresome in the new age of distrust brought on by the media in the last several years.
Watching opportunistic male Congressmen in matching Patagonia jackets following the “fighting for women” political script by alternately grieving and spewing anger to crowd applause rings hollow. Maybe its sincere. Even if so, I doubt they even stop to think about it. Why think about it – when people are falling over themselves with adoration and donations.
For politicians and interest groups, what is the best nation on earth? DO-nation. It’s hard to believe in the sincerity of those that profit from a movement especially when they work so hard to shut-down independent thinking and/or a change in established orthodoxy. Their livelihoods, political future, gained power, and self-identity depend on the established order.
If public opinion changed to where the vast majority of people were pro-life, you can bet these politicians would make themselves scarce. It would be similar to what happened with various Democrats (and others) who were opposed to gay marriage only a few years ago, such as President Obama in 2004 saying that “Marriage is between a man and a woman,” and Hillary Clinton who opposed gay marriage for years before supporting it in 2013.
That doesn’t even include President Clinton who signed into law the “Defense of Marriage Act” in 1996, which defined marriage as a union between a man and a woman. Needless to say, all of these politicos, and many more, conveniently changed their opposition to gay marriage to the most fierce, unwavering supporter of personal liberty as the public opinion has changed.
Perhaps a more notorious example of changing a position for political purposes was President Trump, one of the least likely of any modern president – not including President Clinton – to limit a woman’s right to terminate a pregnancy since it is such a convenient policy for consequence avoiding, seed spreading, males. But in 2020, Trump – for blatant political exploitation became the “the most pro-life” president ever. Everything is up for grabs in politics – even for those who profess not to be a politician.
You would never know it based on most of the media coverage and protests, but the draft ruling does not outlaw abortion or restrict abortion. All it does, were it to be finalized and issued later in the year, is return the usurpation of the legislature’s powers back to the legislature. This should be celebrated, not protested. The legislature, the people, is where this power to make policy is designated under our system of government. State legislatures are free to pass laws, codifying or expanding abortion rights if that is what “the people” want.
Connecticut, already having liberal abortion laws on the books, was not in need of any changes, but Democrats were not about to let a political opportunity go to waste. They quickly scrambled to pass something, anything. Public Act 22-19 was the result. It codified into law the existing practice of allowing medical professionals besides doctors to perform abortions and created abortion avenues in Connecticut for women in states that will be or are limiting abortion. Not much in actual substance as far as abortion in Connecticut goes, but very important for political messaging.
The true purpose of the bill became clear at the unusual bill signing by Gov. Ned Lamont which took place at a desk placed in the Capitol parking area to make sure no one missed it and to accommodate a crowd. Seeing the Governor eagerly assisted by a pen handing, camera crowding, Lt. Governor Bysiewicz and surrounded by adoring supporters says it all. Within days, the Governor used the law for its real purpose – the November elections. Lamont demanded his reticent Republican challenger Bob Stefanowski “to speak up and let us know where you stand” since only “crickets” had been heard so far.
After some previous dodging of the issue, the supposedly pro-life Stefanowski was forced to say that “under no circumstances” would he as governor attempt to change Connecticut codified laws on abortion. Democrats scrutinized his statement looking for anything to paint him as a knuckle-dragging cave-man. The ever-popular Lt. Governor was quick to pounce on the statement’s perceived inadequacy, since in her “estimation,” “It’s one thing to support the current law. It’s another thing to step forward and say if a bill should come to your desk, that you will veto it, and you will fight any attempts to weaken our law.”
So much for any life in the pro-life movement in Connecticut.
But abortion law is not limited to states. Congress can pass a nationwide abortion law that will overrule any state laws. Legislatures are the proper place where policy is supposed to be made. Almost everyone will not like some laws that are passed, and many can probably point to numerous laws they disagree with, but in our system, majority rules and these laws – if a system is to function properly – are to be observed. Although in recent years, in a sign of deepening polarization, states openly thwart unpopular federal laws in their states – with little or no repercussion.
Unfortunately, Republicans have messaged opposition to expansive rulings like Roe poorly. One way this happens is by overly celebrating the appointment of conservative Supreme Court justices as a victory for Republicans/conservatives. But appointing originalist judges – who are considered conservative only because activist judges have been dominated by the Left – to the Supreme Court does not tilt the playing field in conservatives’ favor, or at least should not.
But the Left has portrayed originalist rulings that overturn decades of judicial activism – as activism by originalist judges. That’s because when one has it all their own way for decades, one tends to think that is how the system should work. Why bother with all that bill passing and constitutional amendment work when a few like-minded justices can just circumvent the will of the people and rule in your favor? Giving up easily won ill-gotten gains and facing the work of popular persuasion is much harder.
And make no mistake, the Roe decision was the product of an activist court mostly begun under Chief Justice Earl Warren in the 1950s and openly championed by Justices such as William Brennan. Roe was based heavily on a “right to privacy” created by the Supreme Court in 1965’s Griswold v. Connecticut, which involved a ban on contraception, where the court, straining to justify its activism, wrote that they were guided not by the Constitution but its “concept of liberty” which “protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights.”
That is a smoking gun of public corruption. However desirable this policy may be, creating a new right is not within the constitutional jurisdiction of the Supreme Court. Justices do not have the legal authority to grant themselves the power to substitute their personal belief/policy for that of the Constitution. Using one’s public position to circumvent the power assigned to it is corruption. The higher up it is, the more serious the corruption, and the Supreme Court is as high as it gets.
There were other Supreme Court cases before Griswold that involved building a theoretical “right” of privacy that eventually morphed into a right to abortion. Stare Decisis, or judicial precedence, is a convenient judicial tool to build a stairway, case by case, to ever expanding rights or policies justifying the latest activist ruling on previous activist rulings. Such is the nature of corruption. Steal a little from the till, then a little more, then a little more and before you know it, its grand larceny. Such is Roe.
Although there is an understandable functionality to precedence, it can be ignored when courts determine it justified. This makes sense on a practical level but it points out the inherent contradiction with following precedence. Basing everything on precedence could keep a wrong-headed ruling on the books forever. 1954’s Brown v. Board of Education decision (which overturned the 1896 ruling upholding separate but equal) would never have occurred if the court bound itself to precedence. There is no answer to this contradiction which is not anyone’s fault – just as there is no answer to an elected representative voting in favor of their district over that of the country (or what have you). Both are cases of contradictory requirements: they are supposed to uphold both at the same time.
This is why discretion is so dangerous in the hands of those with power. People of any political persuasion (not counting anarchists) should be against judicial activism – and in theory they are when the abuses occur in opposition. Liberals are quick to point out abuses of discretion/power by those they disfavor such as the police, as was seen after George Floyd was killed. But are celebratory when discretion is abused in their favor (Roe). This would likely be the same if the roles were reversed and conservative justices believed in expansive rulings and began deciding cases in conservatives’ favor rather than based on the Constitution’s actual words.
And there may be some of that going on now with a court that has been increasingly politicized and is considered conservative. The 2017 Janus ruling, for example, which decided that requiring state employees to pay union dues was unconstitutional and a violation of the First Amendment’s freedom of speech, seems to be a stretch since employers can require all sorts of things from their employees.
Employees are free to leave or choose not to seek employment there. The dues in question were collectively bargained with the union(s) by the employer so it became a condition of employment. Meanwhile the law in Connecticut disallows certain employees like those in the Legislative Branch from unionizing. A ban on collective bargaining seems like more of a violation of freedom of speech and assembly than does negotiated union dues. So was Janus due to conservative beliefs or an originalist view of the Constitution?
When the court gets illegitimately involved in political matters and illegitimately making liberal public policy for decades, there is bound to be a backlash that is not wholly driven by objectivity or a return to strict originalism. The fact that a court is considered liberal or conservative is a sign that there is a problem with how the system is working. Such a distinction has no place on courts where parties go expecting objective, apolitical rulings.
Since the 1973 Roe v. Wade decision, reported abortions grew from 745,000 to a peak of 1.6 million in 1990 to probably about 850,000 today. It is hard to know what the abortion level was before Roe since state abortion law varied with it being illegal in 30 states and legal under certain circumstances in 20 states but it is safe to say that abortion increased and these numbers which total somewhere around 50 million since 1973 are significant. It is also safe to say that the vast majority of average Americans 1) don’t think there is a person/life difference between a fetus seconds away from exiting the womb and the baby that emerges and 2) understand that the various burdens of pregnancy fall almost exclusively on women and that women have a right to self-determination.
When a fetus becomes a human life/person along with balancing intrusions on women’s freedom is where the abortion debate should be centered. Such a complex, penultimately impactful issue requires more than average attention and open-minded thought. Having to wade through the distortions and mischaracterizations, along with strategically and liberally applied demonization, makes an already difficult policy formulation task almost overwhelming.
But the political machine doesn’t want you to see or think clearly and independently. They want domination – objective analysis be damned. There seems little sign that these dynamics will change.
Alan Calandro is an unaffiliated voter and former Director of Connecticut’s nonpartisan legislative Office of Fiscal Analysis.