By Edwin Cooney
Whether we like it or not, Roe v. Wade will soon be history.
Since the confirmation of Judge Brett Kavanaugh to the Supreme Court of the United States, two separate and vital occurrences have taken place. First, several states have passed laws designed to defy Roe v. Wade. These new state laws are headed toward our nation's loftiest judiciary body for concurrence or rejection. They not only seek to limit the the authority of Roe v. Wade with respect to when a woman and her doctor may agree to abort a fetus. Some of these laws even criminalize any defiance of their proposed writ.
The second vital occurrence came about last Monday from within the court itself when a majority of the justices defied the doctrine of "stare decisis” which directs the judges to "stand by things decided." The subject before the court was Franchise Tax Board of California v. Hyatt. That case had been decided in 1979 in favor of Gilbert P. Hyatt who, in the courts of Nevada, had successfully sued the Franchise Tax Board of California for trying to collect income taxes from him even though he was now a resident of Nevada. The five conservative judges (Roberts, Thomas, Alito, Gorsuch, and Kavanaugh) defied what we lay persons call "settled law" primarily because they disagreed with the majority of the judges who decided that law. Of course, the Hyatt case had nothing to do with Roe, but it was disquieting to some justices and observers as they watched both Gorsuch and Kavanaugh abandon "stare decisis" after having assured uncertain senators so recently that they have a high regard for "settled law." We liberals, or progressives, criticize the abandonment of “stare decisis” at our own peril because “stare decisis” was certainly ignored on May 17th, 1954 when the Supreme Court decided Brown v. Board of Education by rolling back Plessy v. Ferguson which stated that separation can mean equal.
Before moving on to describe the coming storm, I need to define two concepts with regard to interpreting the Constitution. If you are a strict constructionist (as most conservatives describe themselves), you interpret laws passed by the states or the federal government as they relate or don't relate to the wording of the Constitution. If you're a “loose constructionist” (as many liberals insist they are), you interpret the relevance of the Constitution to our living culture. Conservatives call this legislating rather than adjudicating. Liberals insist that the Constitution is a "living document,” a guideline that, while it must always be true to our republican form of government, reflects and preserves America's ever changing needs and priorities.
Contrary to common perception, the Burger Court did not consist of a bunch of wild-eyed liberals. In fact, six of those justices had been appointed by Presidents Eisenhower and Nixon. Lewis P. Powell, a Virginia Democrat appointed by Nixon, concurred with Roe v. Wade. Byron White and William H. Rehnquist were the only dissenters on that historic January 22nd, 1973 day when Roe was decided.
Now it appears that "the jig is up” and both Christian fundamentalists and secular conservatives may well have their happy day. The question remains, however, what price may they pay for their victory?
Surely such a victory will have its turbulence just as the Alien and Sedition Acts of 1798, the Prohibition Act of 1919, and the McCarthy Era (which lasted from 1950 through 1954) left their scars on our national self-image.
Should the conservative majority simply strike down Roe v. Wade thus allowing abortion to be legal in some states, perhaps the reaction may be minimal. Should conservatives and fundamentalists seek national legislation banning and criminalizing abortions, the backlash may well be considerable.
Here are some possible outcomes of the gathering storm:
1) The pro-choice movement will passively but prudently adjust its mission in its efforts to maintain abortion rights in states where such rights may still be legal.
2) Triumphant conservatives may start a movement to further outlaw and criminalize both mothers and doctors who would continue the practice.
3) President Trump may join in such an effort.
4) Should Trump do so, he might inflame liberals and moderates to such a degree that he may well lose re-election in 2020.
5) Should President Trump be content to see his two appointees, Gorsuch and Kavanaugh, merely defang Roe v Wade, he may sufficiently anger his conservative and fundamentalist constituency enough to drive them away from the polls, thus sending him back to Mar-a-Lago.
6) As the public realizes that the rich can still get abortions while the poor continue to procreate leaving the public to pay for unwanted pregnancies, the moral fiber of this conservative fundamentalist movement may rapidly evaporate.
The ultimate question that Americans may well ask themselves in the wake of the impending destruction of Roe v. Wade will be Winston Churchill's favorite: where do we go from here?
I assert that the answer to that inquiry is pretty clear: wherever it is, it'll be neither pretty nor pleasant!
Batten down the hatches! The tide and the storm is moving in and some pretty big and unsuspecting fish may well be devoured!
RESPECTFULLY SUBMITTED,
EDWIN COONEY
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