A vote for Neil Gorsuch is a vote for overturning Roe v Wade.
Don’t deny that, based on some pious reasoning that the Supreme Court is not and should not be dragged into politics. The Supreme Court has been thoroughly mixed up in politics at least since the late Justice Scalia stopped the Florida recount in 2000. (A real democracy counts all the votes. What Scalia did was a grossly political act. It was like the referee tossing the coin at the beginning of a football game declaring one team a winner while the coin was still in the air.)
Putting Merrick Garland on the court would have been a step to restore ideological and political balance by beefing up the moderate center. Right now Justice Kennedy is the only one considered a swing vote. He needs company. As much as judges try, they can’t completely separate their political orientation, their background, and their gut feelings from their judgement.
Donald Trump campaigned promising to appoint Supreme Court justices who would overturn Roe v Wade. On that issue, Judge Gorsuch is probably the most likely pick to vote that way. He has written extensively in favor of ‘sanctity of human life’ to the point that he strongly opposes legal euthanasia. He has been as clearly “litmus tested” as anyone who could have been picked for Trump to nominate.
I have seen it pointed out that each of the three branches of our government has a bit of the powers assigned to the other two branches. A friend of mine whom I consider a legal scholar has told me he considers the Roe v Wade decision bad jurisprudence. Others have called it “legislating from the bench”. Even accepting that, I think it was necessary, and overdue by the time it was handed down.
By the 1970’s a majority of the country thought abortion should legal in many circumstances. A vast majority thought abortion should be available when confronted with the need for it for themselves, their spouse, mistress, girlfriend, or daughter. Hypocrisy was and is still rampant among those who purport to oppose it. Several daughters of presidents and presidents-elect have likely had abortions; the case is clear simply from information available in the public record. Even supporters of Donald Trump don’t seem to argue with the suggestion that he may have paid for a few abortions himself.
So why do I claim Roe v Wade was necessary and even overdue in 1973? Remember Prohibition?
In 1929 President Herbert Hoover appointed a commission to study it. They released a second report in 1931 that supported Prohibition but found contempt among average Americans and unworkable enforcement across the states, corruption in police ranks, local politics, and problems in every community that attempted to enforce prohibition laws.
August Vollmer was the primary author of the Commission's final report, commonly known as the Wickersham Report, which was released on January 7, 1931. It documented the widespread evasion of Prohibition and its negative effects on American society and recommended much more aggressive and extensive law enforcement to enforce compliance with anti-alcohol laws.
The report castigated the police for their "general failure... to detect and arrest criminals guilty of the many murders, spectacular bank, payroll and other holdups and sensational robberies with guns."
Franklin P. Adams, a columnist for the New York World, summarized his opinion of the Commission's report with this poem:[3]
Prohibition is an awful flop.
We like it. It can't stop what it's meant to stop. We like it.
It's left a trail of graft and slime,
It's filled our land with vice and crime, It don't prohibit worth a dime, Nevertheless, we're for it.
Laws against abortion were no more effective than prohibition. The only reason they didn’t “…leave a trail of graft and slime” and “…fill our land with vice and crime” was logistics. Meeting the demand for alcohol requires a big supply chain. The demand is huge and the product is heavy and bulky. You can’t smuggle that much contraband past the authorities; you have to corrupt them. Meeting the demand for illegal abortions, in contrast, is no logistical challenge and requires no smuggling. Someone who did illegal abortions probably didn’t have to bribe or corrupt anyone.
Less than three years after the Wickersham Commission recommend what would have to have been a draconian crackdown, prohibition was instead repealed. The country gave up on the “noble experiment” in enforcing morality by law.
Decades ago I read a suggestion of why it took so long for prohibition to be repealed. No elected politician wants to stand up and say that there’s a positive value to being able to relax with a couple of drinks after a hard day. That value exists; there’s even a slight increase in longevity for males who have one and maybe two drinks a day. The value would be considerably more if it weren’t counterbalanced by the 5% or so of the population that has a tendency to alcoholism. Under prohibition (which is still on the books in, for example, a majority of the counties in Texas) a lot of people make the judgement “Well, alcohol is dangerous for some people but I can handle it,” and justify an exception to the law for themselves. Most of those people are indeed correct that they can handle it, though alcoholics tell themselves the same thing. Perhaps it’s sad that as a society we won’t give up that value of being able to unwind with a couple of cool ones after a hard day, to protect the 5% of us whose lives are impaired or destroyed by alcoholism; but we won’t. That’s exactly what Prohibition asked us to do. It was indeed a noble experiment, but it failed.
Why won’t elected officials stand up and point that out, saying that there’s a value for many of us to having alcohol available, so it should stay legal? It’s a vote-loser to point that out. People who disagree are likely to vote against you for that reason alone, while those who agree aren’t likely to change to voting in your favor. And it’s even more of a vote-loser to point out that abortion needs to be legal (and safe) for very similar reasons. There’s a clear value to being able to make love. Look at the market for Viagra. Even Mrs. Bob Dole was willing to say that. Ironically, she’s the lady who, as Secretary of Transportation under Ronald Reagan, got all states to raise the legal drinking age to 21 years. In fact, it was in a discussion of that move on the drinking age that I read the assertion that ‘there’s a value to being able to unwind with a couple of cool ones’. Too bad she didn’t get people to acknowledge that we need to think about lowering what is, in a sense, the legal lovemaking age.
Some people consider unintended pregnancy the punishment for illicit sex, though they may not acknowledge it. Most vehement opponents of abortion probably think that way. We all tend to loathe people who indulge in pleasures that we are afraid to try ourselves, or that we consider forbidden to us. We are also likely to be jealous of the indulgers. Our negative attitudes toward drug addicts, alcoholics, sexual libertines, and unwed mothers all come from similar sources.
There’s a very clear value to not bringing children into the world when there isn’t a good home to welcome them. It’s hard to define what such a “good home to welcome the new child” would be, but the laws, rules, and customs about marriage provide one good answer, or an answer as good as I can imagine us achieving. (That’s not to say a single parent family can’t be a good home, and not all two parent families are good homes, but it’s about as good a rule as you can write.) The availability of contraception and safe abortion has confused a lot of us about the morality of extramarital sex. Until recently, sex often led to pregnancy so rules, laws, and customs that tried to reduce unwise pregnancies aimed at restricting sex to situations in which a pregnancy would not be obviously unwise. Now that the practical moorings of limits on extramarital sex have come loose, people who’ve internalized the moral prohibition on extramarital sex are adrift. Some of those people are alarmed, distressed, and angry at feeling adrift.
So back to Roe v Wade. I think that by 1973 seven of nine Supreme Court justices saw that although laws against abortion hadn’t “filled our land with vice and crime,” those laws had created a steady trickle of deaths from back alley abortions and created a disdain for the spirit if not the letter of the law among those who could afford to travel to where abortion was available, or who could secure one of the increasingly available exceptions to the laws. Abortion needed to be legal, just as Prohibition needed to be abolished, but many state legislatures were afraid to say so. In Griswold v Connecticut in 1965 the court had recognized a “right to marital privacy” to strike down an archaic “Comstock law” that banned all contraception. That right was extended to unmarried couples in 1972 in Eisenstadt v Baird, and then to Roe v Wade in 1973. I think the seven justices who supported Roe v Wade were motivated partly by the right to privacy argument but also by the corrosive and discriminatory effects of laws against abortion. It may not have been good jurisprudence, but it was necessary legislation and wise public policy.
At this point I think Republicans have tried to pack the Supreme Court with justices who are smart and erudite but who’ve internalized their Catholic upbringing, education in Jesuit schools, and experience in the Federalist Society well enough that they can justify to themselves the imposing of their religious values on everyone. [I wrote this before I had up a biography of Neil Gorsuch is Catholic. Now that I’ve looked it up, he’s a prominent member of the Federalist Society; he attended a Jesuit prep school for boys, Georgetown Preparatory School, followed by Columbia and Harvard Law School; and he’s Episcopalian. I have the impression some Episcopalians might be called “Roman Catholic Light” while others are liberal.] Neil Gorsuch fits the Souter-Roberts-Scalia mold very well, probably better than Clarence Thomas. I think there’s a value to having a justice from that mold on the court, just as there’s a value to having a value to having one from the (gasp!) William Douglas mold. Moving toward a court majority from either mold is dangerous.
Conservatives still chafe over the allegedly liberal supreme courts of the 1950’s, ‘60s, and ‘70’s. Rubbish. Those courts were doing what the founding fathers would have wanted, and written into the Constitution if they’d had the benefit of 20th century experience. “Originalism” and “textualism” are theories promoted by the Federalist Society and conservatives because they help justify with their heads opinions that come from their guts.
Update for the poll: The question should be “Have you ever had a contraceptive failure?” And of course, the last choice should be “Yes, and…” rather than “Yes, anc...” After it was quiet all day, the phone started ringing with an urgent matter and it was time to take everyone out to dinner just when I was finishing the poll.