Perhaps, because I don't have a dog in this fifty year struggle by my old, or should I say, former Republican and Conservative colleagues as well as the effort by my fellow Democrats to preserve Roe v. Wade I can afford to have a rather pompous objectivity on this whole matter.
I'll state my personal status very briefly. In 1945, had my biological mother the right to abort me, she undoubtedly would have done so since she never acknowledged my very existence. The fact is that she deliberately obliterated me by not acknowledging my birth in the family's list of significant events. Hence, my sense of self-respect requires me to be glad she didn't have that option. Ultimately, we both survived and thrived, she for 97 years and me for 77 years come next November 28th.
Moving forward to the present, this issue could have been addressed more calmly and wisely if it hadn't been so temptingly political on all sides. To sum it all up, people love being righteously angry with one another whether it be slavery vs. emancipation, the legitimacy of labor vs. the original rights of ownership of property, or the debate over how the rich got rich while the poor were born poor. There are two major factors that need consideration here.
First, there is the history of the Supreme Court. Going back to the 1790s and early 1800s, the court was essentially as much about politics as it was about law. The last thing President John Adams did before leaving office was to appoint fellow federalists to the court to counter Thomas Jefferson's likely Republican Democratic justices. Two years later, Chief Justice John Marshall ruled in Marbury v. Madison that while the court couldn't force Secretary of State Madison to give Federalist William Marbury his commission, it did have the power to judge whether laws passed by Congress were constitutional or unconstitutional because we were a government of laws and not of men. However, 54 years later, Supreme Court Chief Justice Roger B. Taney asserted that Dred Scott was a slave and under law had no more rights than a horse. Of course, Scott was a slave due to the wishes of men. Subsequently, Justice Taney's statement of the law couldn't prevent the Civil War. Then, in 1937, Franklin Delano Roosevelt, to the chagrin of all Conservatives regardless of party, sought to "pack" the court with up to five justices to replace justices seventy years of age and older who refused to retire. The reaction was righteous outrage. However, as Harry Truman pointed out, nothing in the Constitution addresses the number of serving justices at any time. Again, the idea that we are a government of laws and not of men was preached to condemn FDR.
The second factor is the inclusion of the general public's needs by the traditionally corporate-oriented Supreme Court. Beginning in the 1950s, it was recognized that the laws perceived and passed by rich, powerful men ultimately affected the lives, liberty and property of less wealthy and powerful men and women. Thus, the Warren Court and the Burger Court began striking down and otherwise altering laws that inhibited the well-being of the less popular among us. Conservatives began shouting that the "liberal" Court was legislating rather than adjudicating the law.
Since the issuance of Roe v. Wade on Monday, January 22nd, 1973, opposition to Roe has been both intense and politically organized and it appears that Conservatives may well prevail. Thus, here's the ultimate reality.
Law is law however fair or unfair, workable or unworkable, practical or impractical. The alteration of law however is ultimately political. Law is conceived and enforced by men and women. Getting our undies in a bunch about the leakage of Justice Alito's draft may be of concern to Chief Justice John G. Roberts, Jr., but whatever the effect of that leakage serves only as melodrama to the process of revoking Roe.
As a Democrat, I'm sympathetic to the idea that this whole issue could change the political dynamic next November. There is much speculation at present as to what other rights might be taken away from us. For instance, what's the future of stem cell research so essential to examining and preventing diseases? What's the future of birth control medication? Finally, how often has it historically mattered how popular a law on the statute books is? Does popularity have much to do with morality? Remember that chattel slavery, which practically everyone regards as immoral, was supported by the majority throughout the days of our historic founding. Prohibition for much of its fourteen year reign was overwhelmingly popular. Its repeal was largely due to its ultimately impractical enforcement as well as to the badly needed revenue it spawned to the benefit of state and national treasuries.
Whether we like it or not, 21st Century America is not a government of laws as much as a government of doctrinaire politics. The sad truth is that we're a government of ambitious, judgmental, self-righteous and dominant-oriented men and women. As to what effect the revocation of Roe will be, it's my guess that it won't be as effective as Conservatives hope, nor will it be as damaging as Liberals insist. As for the political and social chaos the overturning of Roe may create, that’s as American as cherry pie, is it not?
RESPECTFULLY SUBMITTED,
EDWIN COONEY
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