The focus of the pro-life movement, since abortion was made legal, has been to try to eliminate abortion supply, largely through attempts to alter legislation, and de-fund abortion suppliers, with the ultimate goal being the reversal of Roe v. Wade. New Pro Life writer and legal expert H. Lillian Vogl wrote, last year, about the unlikelihood that Roe. vs. Wade would be reversed, because of the way the legal system works:
You think a few Supreme Court appointments will result in overturning Roe v. Wade, or Citizens United (free political speech for incorporated groups), or Obergefell v. Hodges (right to same-sex marriage), or Heller v. District of Columbia (individual right to own guns)? That’s not how it works. That’s not how any of this works.
The Supreme Court does not just take up issues because they want to decide them or reevaluate them. They decide nothing until there is a “case in controversy” that has wound its way through the federal court system and four Justices decide it’s worth taking the case.
But let’s back up. First a state or federal legislature has to pass a law that is constitutionally suspect, or that could be applied in constitutionally suspect ways. Then the government has to actually enforce (or not enforce) the law in a way that causes harm to a particular person, such that they have a credible claim their constitutional rights have been denied. Then such a person has to decide to file a lawsuit and obtain high-priced lawyers to do so. Then the case is argued in a federal district court, and decided by federal district judges who are usually fastidious about following the precedent of higher federal courts. There has to be enough gray area about applying that precedent to get a federal appeals court to reconsider the district court decision. After the appeals court makes a decision, either party can ask the Supreme Court to review, called a writ of certiorari. Most of the time the Supreme Court says no. Usually they only say yes if different appeals courts have come to contradictory conclusions on similar issues, or if there is significant gray area in the law that could use clarifying. This process takes a few years, at minimum.
And even when a case makes it to the Supreme Court, one of their core principles in deciding cases is called “stare decisis.” As the Cornell University Law School legal dictionary explains:
Stare decisis is Latin for “to stand by things decided.” … According to the Supreme Court, stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” In practice, the Supreme Court will usually defer to its previous decisions even if the soundness of the decision is in doubt.
This is not to say that Roe won’t ever be overturned. Everything changes; empires fall, and legal systems crumble. It’s naive to assume that the United States is some sort of rock-like edifice that will endure forever, especially considering our irresponsible and self-destructive tendencies. In five hundred years, there may be no Roe v. Wade, because there may be no United States left at all. It’s even more naive, however, to assume that the path to ending abortion, within this system, consists in continuing to elect Republicans on the basis of their easy promises. A pro-life justice does not have the power to sweep in and bring about a reversal of Roe v. Wade with a magical wave of a wand – even if the robes do look a little wizardly.
Those of us who knew this were not in the least surprised to hear what Judge Neil Gorsuch had to say about the existing abortion laws, which he is obligated to regard as precedent:
“Part of being a good judge is coming in and taking precedent as it stands, and your personal views about precedent have absolutely nothing to do with the job of a good judge,” Gorsuch said amid questioning from committee chairman Sen. Charles E. Grassley (R-Iowa.)
Grassley asked if Gorsuch would consider overturning several historic cases covering gun rights, campaign finance and the controversial Bush vs. Gore ruling that determined the outcome of the 2000 presidential election.
“I know some people in this room have some opinions, but as a judge it is a precedent of the Supreme Court and it deserves the same respect as other precedents of the U.S. Supreme Court when coming to it as a judge,” Gorsuch said.
Then Grassley got to Roe vs. Wade. He asked whether it was decided correctly.
Gorsuch pointed out that not only was Roe vs. Wade precedent, but that it had been reaffirmed several times.
“A good judge will consider that precedent worthy as treatment of precedent like any other,” Gorsuch said.
And, as reported on NPR:
In questioning by Sen. Lindsey Graham, R-S.C., Judge Gorsuch again reiterated he gave President Trump no guarantees on how he would rule on abortion rights, despite Trump’s campaign trail promise that views on abortion would be an important consideration for him in picking a justice.Gorsuch was blunt on what he would have done if Trump had broached that topic with him in his interview for the Supreme Court: “I would have walked out the door.”
Some are regarding this as a case of back-tracking, or wimping out, but that’s because they fail to recognize how these things work. It’s not that Gorsuch isn’t pro-life. It’s that he’s a judge, not a wizard. He knows the limits of what can be done within the system.
So what to do now?
Some, no doubt, will continue to move the goalposts, because it’s too embarassing to admit that they’ve been had – or because they’re projecting, still, onto Trump, their fantasy-image of a god-emperor figure. “Just wait” has been the refrain, now, for decades. “This time it will be different.” “It doesn’t matter what he says, he could still overturn Roe.” “Have faith”
At what point will we admit that we sound like victims making excuses for an abuser? “He’ll change this time.”
The Republican party has been abusing the hopes of pro-lifers for a long time now, dangling the promise of a zero-abortion utopia, while dismantling social safety nets designed to protect the vulnerable, and enacting policies that are guaranteed to raise the demand for abortion, as poor families find themselves deprived of medical care, as parents of disabled children find themselves with no more recourse to programs that help them. An anti-life society is being created, in which the poor are free to go die, in which pre-emptive war and capital punishment are considered just and manly, and all of this is somehow excusable because they’re going to end abortion, really.
Or perhaps the architects of this society never really cared about the lives of the unborn in the first place? Perhaps it was all just a cover to excuse their adherence to nativism, eugenics, and social Darwinism? Consider, also, the fact that when it is proposed that even if Roe were overturned, desperate women would still seek abortions, many do not seem to care.
The extent to which the pro-life facade is crumbling should be increasingly clear, as we see that Trump’s supporters from the Alt Right contingent actually, largely, support abortion, because it is eugenic. Richard Spencer is on record as saying that abortion is actually just fine, when procured by low-income or dark-skinned women, and it’s even okay for smart white corporate women to indulge in, on occasion, tough it would be better if they were at home breeding White babies. Trump fangirl for the millenials, Tomi Lahren, was outspoken about her pro-choice views, provoking a storm of outrage from right-wing fans (who were mysteriously unperturbed by any of the unpleasant racist things she’s said, hitherto. Hmmm). Representatives that are backed by pro-life groups are even supporting the eugenic bill, HR 1313.
What is emerging is a right-wing narrative that favors eugenics, nativism, social Darwinism, and white supremacy, while remaining relatively indifferent to the plight of the unborn. Because, why would they care? Protecting defenseless life, making sacrifices for the sake of another, valuing a person for anything other than utility: these do not fit with their dominant ethos.
Maybe I have my own streak of naivete, also, because each time one of these spokespersons comes out with something horrifying, I think “finally, they will see!” I thought that Trump’s comments last year about punishing women who had abortions would be a deal-breaker, but nope! In fact, since then, I have come to find that many who call themselves pro-life share this view. I thought the pussy-grabbing comment would do it, but alas, it would seem that those on the Right are more offended by a woman wearing a cat-ear hat, than they are by sexual assault.
So maybe I’m being hopelessly dewy-eyed, but I would like to think that, for we who are truly committed to a culture of life – all life – this will give an added impetus to work together to oppose those injustices that drive women to seek abortion: injustices that are largely exacerbated precisely by the people who are mistakenly lauded as pro-life heroes. It’s time to realize that pro-life and social justice belong together, and never should have been separated.
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