On Roe’s Reversal

I predicted in January in these pages that the Supreme Court would overturn Roe v. Wade, and that if such a decision was handed down, within sixty days thereafter most or all states under Republican control would outlaw abortion within their jurisdictions.  I ventured that on a purely political handicapping basis, if such occurred, it would provoke such outrage among liberals and conservatives and sufficient unease among Independents and Republican moderates that Democrats would retain their majorities in Congress.

While the outrage and unease I predicted in January is certainly occurring, at this point I sadly have little hope — but would love to be proven wrong — that such will be sufficient to enable Democrats to overcome gerrymandered Republican Congressional districts across the country and maintain their majority in the U.S. House of Representatives.  That said, I remain optimistic that the strong negative reaction to the Roe reversal among progressives, liberals, and moderates will provide Democrats an excellent opportunity, if handled adroitly and if elections are administered fairly, to maintain control of the U.S. Senate and to prevail in close swing state races such as the Wisconsin Gubernatorial race.

Impressions of larger import than the political ramifications attending the Roe reversal also linger.

The first – the sense of diminishment that I have heard several women express at the decision — is not for me to address.

The second I consider less important than the last, despite its almost incalculable effect on our Constitutional system: the Supreme Court’s legitimacy and credibility is shredded in the public mind on issues of culture (which is all the public cares about).  Speaking as a septuagenarian, I don’t think that the Court will shed the stigma of partisanship it now carries during my lifetime – a particularly sad realization for someone who spent his career in the law.  The Republicans too blatantly made it their primary goal over the last decades to put pro-life Justices on the Supreme Court, despite public opinion polls’ consistent indication that the majority of Americans favor some level of abortion rights for women.  The conservative Justices have now fulfilled the task that they had in effect been assigned – another step in what has become a quest to establish an American Apartheid.  I find it difficult to believe that Roe would have been overturned but for both then-Senate Minority Leader Mitch McConnell’s refusal to conduct hearings on then-President Barack Obama’s 2016 nomination of then-U.S. Appellate Court Judge Merrick Garland and U.S. Associate Justice Ruth Bader Ginsburg’s truly untimely death four months before the end of President Donald Trump’s term.  [Protestations by U.S. Senators such as Susan Collins (ME) and Joe Manchin (WV) since the Roe reversal that they trusted the recent conservative appointees’ representations during their respective confirmation processes that they would honor the Roe precedent simply demonstrates that either these Senators are fools, or think you are.]  Hypothetically say that Democrats successfully either add additional Supreme Court seats and pack them, or impeach the current conservative Justices and replace them; the reformed Court’s ensuing progressive-friendly decisions wouldn’t expunge its stain of partisanship, but rather reinforce it. 

As significant as the degradation of the Supreme Court’s standing in the public mind is for our Constitutional system, I consider this last impression, which has dogged me since I heard of the Roe reversal, to be of even greater, perhaps existential, import.  I hope that it is wildly off the mark, and you may well reject it.  It is based on this premise:  that the right to abortion – as compared to immigration, crime, climate, taxation, even gun rights; you name it – is the most enduring and emotionally divisive issue of our time, and as such, will always incite the same inestimable level of ardor and righteousness on both sides of the issue.  There is no way to reconcile the adversaries’ differences.  Neither side will ever back down.  I would submit that the fervor it generates is of a kind and akin to the abolitionist/slavery debate over 150 years ago.  When one adds the coming convulsion attending the Roe reversal to the many other issues in which our polarized citizens are unable to agree upon the same truth and seem unwilling to seek or accept good faith compromise, we may have entered a period of prologue not unlike the 1850s.

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